CRIM2 Flashcards
Q: Pia, a bold actress living on top floor of a plush
condominium in Makati City sunbathed naked at its
penthouse every Sunday morning. She was unaware
that the business executives holding office at the
adjoining tall buildings reported to office every
Sunday morning and, with the use of powerful
binoculars, kept on gazing at her while she sunbathed.
Eventually, her sunbathing became the talk of the
town. (1996 BAR)
(a) What crime, if any, did Pia commit? Explain.
(b) What crime, if any, did the business executives
commit? Explain.
A: Pia did not commit a crime, the felony closest to making
Pia criminally liable is Grave Scandal, but then such act is
not to be considered as highly scandalous and offensive
against decency and good customs. In the first place, it was
not done in a public place and within public knowledge or
view. As a matter of fact, it was discovered by the
executives accidentally and they have to use binoculars to
have public and full view of Pia sunbathing in the nude.
B: The business executives did not commit any crime.
Their acts could not be acts of lasciviousness (as there was
no overt lustful act), or slander, as the eventual talk of the
town, resulting from her sunbathing, is not directly
imputed to the business executives, and besides such topic
is not intended to defame or put Pia to ridicule. (UPLC
Suggested Answers)
The word “moral” implies conformity with the generally accepted
standards of goodness or Tightness in conduct or character, sometimes,
specifically, to sexual conduct.
Q: Juan and Petra are officemates. Later, intimacy
developed between them. One day, Juan sent to Petra
a booklet contained in a pay envelope which was
securely sealed. The booklet is unquestionably
indecent and highly offensive to morals. Juan was
thereafter charged under par. 3 of Art. 201 of the RPC,
as amended by P.D. 969, which provides that the
penalty of prision mayor or a fine from P6,000 to
P12,000, or both such imprisonment and fine shall be
imposed upon those who shall sell, give away or
exhibit films, prints, engravings, sculpture or
literature which are offensive to morals. Is Juan guilty
of the crime charged? Reasons. (1993 BAR)
A: NO. Juan is not guilty of the crime charged because the
law (Art. 201, RPC) covers only the protection of public
moral and not only the moral of an individual. (UPLC
The word “moral” implies conformity with the generally accepted
standards of goodness or Tightness in conduct or character, sometimes,
specifically, to sexual conduct.
Q: Define malfeasance, misfeasance and nonfeasance.
(2016 BAR)
A:
Malfeasance is the doing of an act which a person ought(must)
not to do at all.
Misfeasance is the improper doingof an act which a
person may or might lawfully do.
Nonfeasance is the omission of an actwhich a person
ought to do. (Black’s Dictionary, 6th Edition, West
Publishing 1990) (UPLC Suggested Answers)
Q: During a PNP buy-bust operation, Cao Shih was
arrested for selling 20 grams of methamphetamine
hydrochloride (shabu) to a poseur-buyer. Cao Shih,
through an intermediary, paid Patrick, the Evidence
Custodian of the PNP Forensic Chemistry Section, the
amount of P500,000 in consideration for the
destruction by Patrick of the drug. Patrick managed to
destroy the drug.
State with reasons whether Patrick committed the
following crimes: (2005 BAR)
(a) Direct Bribery;
(b) Indirect Bribery;
(c) Sec. 3 (e) of RA 3019 (Anti-Graft and Corrupt
Practices Act);
(d) Obstruction of Justice under PD 1829.
A: Patrick committed the crimes of Direct Bribery and
Infidelity in the Custody of Documents. When a public
officer is called upon to perform or refrain from
performing an official act in exchange for a gift, present or
consideration given to him (Art. 210, RPC), the crime
committed is Direct Bribery. Secondly, he destroyed the
shabu which is evidence in his official custody, thus,
constituting Infidelity in the Custody of Documents under
Art. 226 of the RPC.
B: Indirect bribery was not committed because he did not
receive the bribe because of his office but in consideration
of a crime in connection with his official duty.
C: Sec. 3(e), R.A. No. 8019 was not committed because
there was no actual injury to the government. When there
is no specific quantified injury, violation is not committed.
(Garcia-Rueda v. Amor, et al., G.R. No. 116938, 20 Sept.
D: Patrick committed the crime of Obstruction of Justice
although the feigner penalty imposable on Direct Bribery
and Infidelity in the Custody of Documents shall be
imposed. Sec. 1 of P.D. 1829 refers merely to the
imposition of the higher penalty and does not preclude
prosecution for obstruction of justice, even if the same
does not constitute another offense.
ALTERNATIVE ANSWER: Obstruction of Justice is not
committee in this case, because the act of destroying the
evidence in his custody is already penalized by another
law which imposes a higher penalty (Sec. 1, P.D. 1829)
(UPLC Suggested Answers)
Q: Deputy Sheriff Ben Rivas received from the RTC
Clerk of Court a Writ of Execution in the case of
Ejectment filed by Mrs. Maria Estrada vs. Luis Ablan.
The judgment being in favor of Estrada, Rivas went to
her lawyer’s office where he was given the necessary
amounts constituting the sheriff’s fees and expenses
for execution in the total amount of P550.00, aside
from P2,000.00 in consideration of prompt
enforcement of the writ from Estrada and her lawyer.
The writ was successfully enforced. What crime, if any,
did the sheriff commit? (2001 BAR)
A: The sheriff committed the crime of Direct Bribery
under the second paragraph of Art. 210, RPC, since the
P2,000 was received by him “in consideration” of the
prompt enforcement of the writ of execution which is an
official duty of the sheriff to do. (UPLC Suggested Answers)
Q: Charina, Clerk of Court of an RTC Branch, promised
the plaintiff in a case pending before the court that she
would convince the Presiding Judge to decide the case
in plaintiff’s favor. In consideration therefor, the
plaintiff gave Charina P20,000.00. Charina was
charged with violation of Sec. 3(b) of R.A. No. 3019,
prohibiting any public officer from directly or
indirectly requesting or receiving any gift, present,
percentage, or benefit in connection with any contract or transaction x x x wherein the public officer, in his official capacity, has to intervene under the law.
While the case was being tried, the Ombudsman filed
another information against Charina for Indirect
Bribery under the RPC. Charina demurred to the
second information, claiming that she can no longer
be charged under the RPC having been charged for the
same act under R.A. 3019. Is Charina correct? Explain.
(2009 BAR)
A: NO, Charina is not correct. Although the charge for
violation of R.A. No. 3019 and the charge for Indirect
Bribery (Art. 211, RPC) arose from the same act, the
elements of the violation charged under R.A. No. 3019 are
not the same as the felony charged for Indirect Bribery
under the RPC. (Mejia v. Pamaran, G.R. No. L-56741-42, 15
Apr. 1988)
Hence, the crimes charged are separate and distinct from
each other, with different penalties. The two charges do
not constitute a ground for a motion to dismiss or motion
to quash, as there is no jeopardy against the accused.
(UPLC Suggested Answers)
Q: Commissioner Marian Torres of the Bureau of
Internal Revenue (BIR) wrote solicitation letters
addressed to the Filipino-Chinese Chamber of
Commerce and Industry and to certain CEOs of various
multinational corporations requesting donations of
gifts for her office Christmas party. She used the
Bureau’s official stationery. The response was prompt
and overwhelming so much so that Commissioner
Torres’ office was overcrowded with rice cookers,
radio sets, freezers, electric stoves and toasters. Her
staff also received several envelopes containing cash
money for the employees’ Christmas luncheon. Has
Commissioner Torres committed any impropriety or
irregularity? What laws or decrees did she violate?
(2006 BAR)
A: YES. Commissioner Torres violated the following:
1. Indirect Bribery (Art. 211, RPC) for receiving gifts
offered by reason of office.
2. RA 6713 or Code of Conduct and Ethical Standards for
Public Officials and Employees when he solicited and
accept gifts. (Sec. 7(d))
3. PD 46 making it punishable for public officials and
employees to receive, and for private persons to give
gifts on any occasion, including Christmas. (UPLC
Suggested Answers)
Q: A, who is the private complainant in a murder case
pending before a Regional Trial Court judge, gave a
judge a Christmas gift, consisting of big basket of
assorted canned goods and bottles of expensive wines,
easily worth P10, 000.00. The judge accepted the gift knowing it came from A. What crime or crimes, if any,
were committed? (1997, 1993 BAR)
A: The judge committed the crime of Indirect Bribery
under Art. 211 of the RPC. The gift was offered to the
judge by reason of his office. In addition, the judge will be
liable for the violation of P.D. 46 which punishes the
receiving of gifts by public officials and employees on
occasions like Christmas. (UPLC Suggested Answers)
(a) What is the crime of Qualified Bribery? (2010
BAR)
(b) May a judge be charged and prosecuted for
such felony? How about a public prosecutor? A
police officer? Explain. (2010 BAR)
(a) Qualified Bribery is a crime committed by a public
officer who is entrusted with law enforcement and who, in
consideration of any offer, promise, gift or offer, refrains
from arresting or prosecuting an offender who has
committed a crime punishable by reclusion perpetua
and/or death. (Art. 211-A, RPC)
(b) NO, a judge may not be charged of this felony because
his official duty as a public officer is not law enforcement,
but the determination of cases already filed in court.
On the other hand, a public prosecutor may be prosecuted
for this crime in respect of the bribery committed, aside
from dereliction of duty committed in violation of Art. 208
of the RPC, should he refrain from prosecuting an offender
who has committed a crime punishable by reclusion
perpetua and/or death in consideration of any offer,
promise, gift or present.
Meanwhile, a police officer who refrains from arresting
such offender for the same consideration above stated,
may be prosecuted for this felony since he is a public
officer entrusted with law enforcement. (UPLC Suggested
Answers)
Q: One Sunday afternoon, Mr. X, President of ABC
Corp., happened to bump into the Labor Arbiter
assigned to the illegal dismissal case filed by certain
employees against his company. During their
encounter, Mr. X promised the Labor Arbiter a luxury
car in exchange for a favorable ruling. The Labor
Arbiter immediately rejected the offer and walked
away. What crime did Mr. X commit under the RPC, if any?
Explain. (2019 BAR)
A: Mr. X committed the crime of Attempted Corruption of
a Public Official. He offered to give the Labor Arbiter a
luxury car in exchange for a favorable ruling on a pending
illegal dismissal case. By making such offer, Mr. X already
commenced the performance of material acts of execution
in corrupting the Labor Arbiter. He was not able to
perform all the material acts of execution only because the
Labor Arbiter refused to accept the offer. (Pozar v. CA, G.R.
No. L-62439, 23 Oct. 1990)
ALTERNATIVE ANSWER: Mr. X committed no crime.
Because there was no acceptance, there is no crime, and
therefore, no penalty should be imposed. Nullum crimen
nulla poena sine lege. There is no crime where there is no
law punishing it. (UPLC Suggested Answers)
Q: Ricky was driving his car when he was flagged
down by a traffic enforcer for over speeding. Realizing
his undoing, but in a hurry for a meeting, Ricky shoved
a PhP500 bill in the traffic enforcer’s pocket and
whispered to the latter to refrain from issuing him a
traffic violation receipt. The traffic enforcer still
issued him a ticket, and returned his money. What
crime, if any, was committed by Ricky? (2018 BAR)
A: Ricky in showing a P500 bill in the traffic enforcer’s
pocket, clearly committed the crime of Corruption of
Public Officials under Art. 212 of the RPC, which states
that any person who shall have made the offers or
promises or given the gifts or present to a public officer is
guilty of corruption of public officer. Even if the P500 bill
was returned it cannot erase the fact that gifts or presents
was given to the traffic enforcer. (UPLC Suggested
Answers)
Q: How is malversation distinguished from estafa?
(1999 BAR)
A: Malversation differs from estafa in that malversation is
committed by an accountable public officer involving
public funds or property under his custody and
accountability; while estafa is committed by nonaccountable
public officer or private individual involving
funds or property for which he is not accountable to the
government.(UPLC Suggested Answers)
Q: Allan, the Municipal Treasurer of the Municipality
of Gerona, was in a hurry to return to his office after a
day-long official conference. He alighted from the
government car which was officially assigned to him,
leaving the ignition key and the car unlocked, and
rushed to his office. Jules, a bystander, drove off with
the car and later sold the same to his brother, Danny
for P20,000.00, although the car was worth
P800,000.00.
What are the respective crimes, if any, committed by
Allan, Danny and Jules? Explain. (2005 BAR)
A: Allan, the municipal treasurer is liable for malversation
committed through negligence or culpa. The government
car which was assigned to him is public property under
his accountability by reason of his duties. By his act of
negligence, he permitted the taking of the car by another
person, resulting in malversation, consistent with the
language of Art. 217 of RPC.
Danny committed the crime of fencing for having bought
the car, which was the proceeds of carnapping, a crime in
the nature of theft or robbery of motor vehicle. The
presumption of fencing applies to him for he paid a price
so inadequate for the value of the car.
Jules committed the crime of carnapping for the unlawful
taking, with intent to gain, of the government’s motor
vehicle.
NOTE: Unlawful taking of a motor vehicle is now governed
by the New Anti-Carnapping Act of 2016 (R.A. 10883), not
by the provisions of the RPC on theft or robbery.
Q: Alex Reyes, together with Jose Santos, were former
warehousemen of the Rustan Department Store. In
1986, the PCGG sequestered the assets, fund and
properties of the owners-incorporators of the store,
alleging that they constitute “Ill-gotten wealth” of the
Marcos family. Upon their application, Reyes and
Santos were appointed as fiscal agents of the
sequestered firm and they were given custody and
possession of the sequestered building and its
contents, including various vehicles used in the firm’s
operations.
After a few months, an inventory was conducted and it
was discovered that two (2) delivery vans were
missing. After demand was made upon them, Reyes
and Santos failed to give any satisfactory explanation
why the vans were missing or to turn them over to the
PCGG; hence, they were charged with Malversation of
Public Property. During the trial, the two accused
claimed that they are not public accountable officers
and, if any crime was committed, it should only be
Estafa under Art. 315, par. 1(b) of the RPC.
What is the proper offense committed? State the
reason(s) for your answer. (2001 BAR)
A: The proper offense committed was Malversation of
Public Property, not estafa, considering that Reyes and
Santos, upon their application, were constituted as “fiscal
agents” of the sequestered firm and were “given custody
and possession” of the sequestered properties, including
the delivery vans which later they could not account for.
They were thus made the depositary and administrator of
properties deposited by public authority and hence, by the
duties of their office/position, they are accountable for
such properties. Such properties, having been sequestered
by the Government through the PCGG, are in custodia legis
and therefore impressed with the character of public
property, even though the properties belong to a private
individual. (Art. 222, RPC)
The failure of Reyes and Santos to give any satisfactory
explanation why the vans were missing, is prima facie
evidence that they had put the same to their personal use.
(UPLC Suggested Answers)
Q: Randy, an NBI agent, was issued by the NBI an
armalite rifle (M16) and a Smith and Wesson Revolver
Cal. 38. After a year, the NBI Director made an
inspection of all the firearms issued. Randy, who
reported for work that morning, did not show up
during the inspection. He went on absence without
leave (AWOL). After two years, he surrendered to the
NBI the two firearms issued to him. He was charged
with malversation of government property before the
Sandiganbayan.
Randy put up the defense that he did not appropriate
the armalite rifle and the revolver for his own use,
that the delay in accounting for them does not
constitute conversion and that actually the firearms
were stolen by his friend, Chiting. Decide the case.
(1994 BAR)
A: Randy is guilty as charged under Art. 217, RPC. He is
accountable for the firearms they issued to him in his
official capacity. The failure of Randy to submit the
firearms upon demand created the presumption that he
converted them for his own use. Even if there is no direct
evidence of misappropriation, his failure to account for
the government property is enough factual basis for a
finding of malversation.
Indeed, even his explanation that the guns were stolen is
incredible for if the firearms were actually stolen, he
should have reported the matter immediately to the
authorities. (UPLC Suggested Answers)
Q: Dencio, who is the Municipal Treasurer of the town,
was also the treasurer of a charity ball of the church.
Because he was short of payroll funds for the
municipal employees, he used part of the church funds
to replenish the payroll funds with the intention of
returning the same when the public funds came.
(1990 BAR)
(a) Is Dencio guilty of malversation under the
RPC? State your reasons.
(b) Assuming that he failed to replenish the
church funds, may he be held criminally liable
thereby?
(a) NO. The church funds used by Dencio do not constitute
public funds which are the proper subject of malversation.
Neither does said funds constitute the so-called private funds which could be the proper subject of malversation
under Art. 222, RPC, which pertain to private property
placed in the custody of public officers by reason of their
office.
(b) YES. Momentary use of funds, since there is
defraudation, is tantamount to estafa under Art. 215 of the
RPC. This is because he received the funds in his capacity
as treasurer and there was temporary damage caused.
Personal benefit is not an element of the crime of estafa.
(UPLC Suggested Answers)
Q: Governor A was given the amount of P10 million by
the Department of Agriculture for the purpose of
buying seedlings to be distributed to the farmers.
Supposedly intending to modernize the farming
industry in his province, Governor A bought farm
equipment through direct purchase from XY
Enterprise, owned by his kumpare B, the alleged
exclusive distributor of the said equipment. Upon
inquiry, the Ombudsman discovered that B has a
pending patent application for the said farm
equipment. Moreover, the equipment purchased
turned out to be overpriced. What crime or crimes, if
any, were committed by Governor A? Explain. (2016
BAR)
A: Governor A committed the crimes of (1) Technical
Malversation; and (2) Violation of Secs. 3(e) and (g) of R.A.
No. 3019.
Governor A committed the crime of Illegal Use of Public
Funds or Property punishable under Art. 220 of the RPC,
also known as Technical Malversation. The crime has
three elements: (a) that the offender is an accountable
public officer; (b) that he applies public funds or property
under his administration to some public use; and (c) that
the public use for which such funds or property has been
applied is different from the purpose for which they were
originally appropriated by law or ordinance. (Ysidro v
People, G.R. No. 192330, 14 Nov. 2012)
The amount of P10M granted by the Department of
Agriculture to Governor A, an accountable public officer, is
specifically appropriated for the purpose of buying
seedlings to be distributed to the farmers. Instead,
Governor A applied the amount to acquire modern farm
equipment through direct purchase from XY Enterprise
owned by his kumpare. The law punishes the act of
diverting public funds earmarked by law or ordinance for
a specific public purpose to another public purpose, hence,
the liability for technical malversation.
Governor A can also be held liable for violation of Sec. 3(e)
of RA 3019, which has the following elements: (1) the
accused is a public officer discharging administrative,
judicial, or official functions; (2) he must have acted with
manifest partiality, evident bad faith or gross excusable
negligence; and (3) his action caused undue injury to any
party, including the government, or gave any private party
unwarranted benefits, advantage or preference in the
discharge of his functions.
The facts show that the first element is present. The
second element is likewise present because “through
manifest partiality” in favoring his kumpare, Governor A
did not hold public bidding and directly purchased the
farm equipment from the latter. With respect to the third
element, Governor A’s actions caused undue injury to the
government as well as the farmers deprived of the
seedlings. His acts likewise gave his kumpare, a private
party, the unwarranted benefit, advantage, or preference,
to the exclusion of other interested suppliers.
The act committed by the Governor is also in violation of
Sec. 3(g) of R.A. No. 3019 for entering a contract on behalf
of the government which is manifestly and grossly
disadvantageous to the same. (UPLC Suggested Answers)
Q: A typhoon destroyed the houses of many of the
inhabitants of X Municipality. Thereafter, X
Municipality operated a shelter assistance program
whereby construction materials were provided to the
calamity victims, and the beneficiaries provided the
labor. The construction was partially done when the
beneficiaries stopped helping with the construction
for the reason that they needed to earn income to
provide food for their families.
When informed of the situation, Mayor Maawain
approved the withdrawal of ten boxes of food from X
Municipality’s feeding program, which were given to
the families of the beneficiaries of the shelter
assistance program. The appropriations for the funds
pertaining to the shelter assistance program and
those for the feeding program were separate items on
X Municipality’s annual budget. (2015 BAR)
(a) What crime did Mayor Maawain commit?
Explain.
(b) May Mayor Maawain invoke the defense of
good faith and that he had no evil intent when
he approved the transfer of the boxes of food
from the feeding program to the shelter
assistance program? Explain.
(a) Mayor Maawain committed the crime of Illegal Use of
Public Funds or Property punishable under Art. 220 of the
RPC. This offense is also known as Technical Malversation.
The crime has three (3) elements: (a) that the offender is
an accountable public officer; (b) that he applies public
funds or property under his administration to some public
use; and (c) that the public use for which such funds or
property were applied is different from the purpose for
which they were originally appropriated by law or
ordinance. The funds for the feeding program are not specifically
appropriated for the beneficiaries of the shelter assistance
program in X Municipality’s annual budget. Mayor
Maawain ought to use the boxes of food earmarked
particularly for the feeding program, which would cater
only to the malnourished among his constituents who
needed the resources for proper nourishment.
(b) A: NO. Mayor Maawain cannot invoke good faith when he
approved the transfer of the boxes of food from the
feeding program to the Shelter Assistance program.
“Criminal intent is not an element of technical
malversation. The law punishes the act of diverting public
property earmarked by law or ordinance for a particular
purpose to another public purpose. The offense is mala
prohibita, meaning that the prohibited act is not
inherently immoral but becomes a criminal offense
because positive law forbids its commission based on
considerations of public policy, order and convenience. It
is the commission of an act as defined by the law, and not
the character or effect thereof that determines whether or
not the provision has been violated. Hence, malice or
criminal intent is completely irrelevant”. (Ysidoro v.
People, G.R. No. 192330, 14 Nov. 2012) (UPLC Suggested
Answers)
Q: Elizabeth is the municipal treasurer of Masinloc,
Zambales. On Jan. 10, 1994, she received, as municipal
treasurer, from the Department of Public Works and
Highways, the amount of P100,000.00 known as the
fund for construction, rehabilitation, betterment, and
Improvement (CRBI) for the concreting of Barangay
Phanix Road located in Masinloc, Zambales, a project
undertaken on proposal of the Barangay Captain.
Informed that the fund was already exhausted while
the concreting of Barangay Phanix Road remained
unfinished, a representative of the Commission on
Audit conducted a spot audit of Elizabeth who failed to
account for the P100,000 CRBI fund.
Elizabeth, who was charged with malversation of
public funds, was acquitted by the Sandiganbayan of
that charge but was nevertheless convicted, in the
same criminal case, for illegal use of public funds. On
appeal, Elizabeth argued that her conviction was
erroneous as she applied the amount of P50,000.00
for a public purpose without violating any law or
ordinance appropriating the said amount for any
specific purpose. The absence of such law or
ordinance was, in fact, established.
Is the contention of Elizabeth legally tenable? Explain.
(1996 BAR)
A: NO. Elizabeth’s contention that her conviction for
Illegal Use of Public Funds (Technical Malversation) was
erroneous is legally tenable because she was charged for
malversation of public funds under Art. 217 of the RPC but
was convicted for Illegal Use of Public Funds which is
defined and punished under Art. 220.
A public officer charged with malversation may not be
validly convicted of Illegal Use of Public Funds (Technical
Malversation) because the latter crime is not necessarily
included nor does it necessarily include the crime of
malversation.
The Sandiganbayan should have followed the procedure
provided in Sec. 11, Rule 119 of the Rules of Court and
order the filing of the proper Information. (Parungao v.
Sandiganbayan, G.R. No. 96025, 15 May 1991) From the
facts, there is no showing that there is a law or ordinance
appropriating the amount to a specific public purpose. As
a matter of fact, the problem categorically states that the
absence of such law or ordinance was, in fact, established.
So, procedurally and substantially, the Sandiganbayan’s
decision suffers from serious infirmity. (UPLC Suggested
Answers)
Q: During a town fiesta, A, the chief of police,
permitted B, a detention prisoner and his compadre,
to leave the municipal jail and entertain visitors in his
house from 10:00 AM to 8:00 PM. B returned to the
municipal jail at 8:30 PM. Was there any crime
committed by A? (1997 BAR)
A: YES. A committed the crime of Infidelity in the Custody
of a Prisoner. Since B is a detention prisoner, as Chief of
Police, A has custody over B. Even if B returned to the
municipal jail at 8:30 PM. A, as custodian of the prisoner,
has maliciously failed to perform the duties of his office,
and when he permits said prisoner to obtain a relaxation
of his imprisonment, he consents to the prisoner escaping
the punishment of being deprived of his liberty which can
be considered real and actual evasion of service under Art.
223 of the RPC. (U.S. v. Leon Bandino, G.R. No. 9964, 11 Feb.
1915) (UPLC Suggested Answers)
Q: Ernani was accused of estafa. Unable to post a bail
bond for his provisional liberty pending trial of his
case, he was detained in the city jail. On the date of the
hearing of the estafa case, Daniel, a policeman
detailed in the city jail, escorted Ernani to the city hall
for the trial. Daniel removed the handcuffs of Ernani
and allowed him to sit on one of the chairs inside the
courtroom.As Daniel was talking to a lawyer inside the
courtroom, Ernani, with the help of a cigarette vendor,
Meynardo, who used his cigarette container as cover,
surreptitiously moved out of the room and escaped.
Ernani and Meynardo went to the comfort room for a
while, then went down the stairs and lost themselves
in the crowd. What crime/s were committed by
Ernani, Daniel and Meynardo? Give your reasons.
(1989 BAR)
A:
1. Ernani, the escaped prisoner himself is not criminally
liable for any offense. The detention prisoner who
escapes from detention does not commit any crime. If
he were a convict by final judgment who is serving a
sentence which consists of deprivation of liberty and
he escapes during term of his sentence, he would be
liable for Evasion of Service Sentence. (Art. 157, RPC)
2. Daniel, the policeman, committed the crime of Evasion
thru Negligence, one of the forms of Infidelity in the
Custody of Prisoner (Art. 224, RPC), the essential
elements of which offense are:
a. That the offender is a public officer;
b. That he has in his custody or charge a prisoner,
either detention prisoner or prisoners by final
judgment;
c. That such prisoner escaped from his custody thru
his negligence.
All of these elements are present, Daniel, a policeman
detailed in the city jail, is a public officer. As the escort
for Ernani in the latter’s trial, he had custody of charge
of a detention prisoner. Ernani escape was thru his
negligence because after removing Ernani’s handcuffs
and allowing him to sit in one of the chairs inside the
courtroom, he should have taken the necessary
precautions to prevent Ernani’s escape by keeping an
eye on him. Instead, he provided the opportunity for
the escape by talking with a lawyer and not keeping
watch over his prisoner.
3. Meynardo, not being a public officer, is guilty of the
crime of Delivering Prisoners from Jails (Art. 156,
RPC), which is committed by any person who either
removes from any jail or penal establishment any
person confined therein, or who helps the escape of
such person by means of violence, intimidation,
bribery of other means. The act of Meynardo in giving
to Ernani his cigarette container is helping in the
latter’s escape by other means. (UPLC Suggested
Answers)
Q: To secure the release of his brother Willy, a
detention prisoner, and his cousin Vincent, who is
serving sentence for homicide, Chito asked the RTC
Branch Clerk of Court to issue an Order which would
allow the two prisoners to be brought out of jail. At
first, the Clerk refused, but when Chito gave her P50,000.00, she consented.
She then prepared an Order requiring the appearance
in court of Willy and Vincent, ostensibly as witnesses
in a pending case. She forged the judge’s signature,
and delivered the Order to the jail warden who, in
turn, allowed Willy and Vincent to go out of jail in the
company of an armed escort, Edwin. Chito also gave
Edwin P50,000.00 to leave the two inmates unguarded
for three minutes and provide them with an
opportunity to escape. Thus, Willy and Vincent were
able to escape.
What crime or crimes, if any, had been committed by
Edwin, and the jail warden? Explain your answer.
(Question reframed) (2009 BAR)
A: Edwin, the jail guard who escorted the prisoner in
getting out of jail, committed the crimes of –
1. Infidelity in the Custody of Prisoners, specifically
conniving with or consenting to Evasion for leaving
unguarded the prisoners escorted by him and provide
them an opportunity to escape (Art. 223, RPC); and
2. Direct Bribery for receiving the P50,000.00 as
consideration for leaving the prisoners unguarded
and allowing them the opportunity to escape. (Art.
210, RPC)
The jail warden did not commit nor incur a crime there
being no showing that he was aware of what his
subordinates had done nor of any negligence on his part
that would amount to infidelity in the custody of
prisoners. (UPLC Suggested Answers)
Q: Dancio, a member of a drug syndicate, was a
detention prisoner in the provincial jail of X Province.
Brusco, another member of the syndicate, regularly
visited Dancio. Edri, the guard in charge who had been
receiving gifts from Brusco everytime he visited
Dancio, became friendly with him and became relaxed
in the inspection of his belongings during his jail
visits. In one of Brusco’s visits, he was able to smuggle
in a pistol which Dancio used to disarm the guards and
destroy the padlock of the main gate of the jail,
enabling Dancio to escape. What crime(s) did Dancio,
Brusco and Edri commit? Explain. (2015 BAR)
A: Dancio committed the crime of direct assault under Art.
148 of the RPC for disarming the guards with the use of
pistol while they are engaged in the performance of their
duties.
Edri committed infidelity in the custody of prisoner or
evasion through negligence under Article 224 of the RPC.
As the guard in charge, Edri was negligent in relaxing the
inspection of the Brusco’s belongings during jail visits
allowing him to smuggle a pistol to Dencio, which he
subsequently used to escape. Edri also committed indirect bribery under Article 211 of the Revised Penal Code by
accepting gifts from Brusco, who was part of the syndicate
to which Dancio belonged.
Brusco committed delivery of prisoner from jail under
Article 156 of the Revised Penal Code, as well as bribery
under Article 210 of the same Code. Helping a person
confined in jail to escape constitutes this crime, and by
providing Dencio with a pistol, he helped him escape.
(UPLC Suggested Answers)
Q: During the presentation of the prosecution’s
evidence, Reichter was called to the witness stand
with the stated purpose that he would testify that his
wife Rima had shot him in the stomach with a .38
caliber pistol, resulting in near fatal injuries. Upon
objection of the defense on the ground of the marital
disqualification rule, the presiding judge (Judge
Rossano) disallowed Reichter from testifying in the
case. Its motion for reconsideration having been
denied, the People of the Philippines went up on
certiorari to the CA questioning Judge Rossano’s
ruling.
After due proceedings, the CA rendered judgment
declaring Judge Rossano’s ruling void ab initio for
having been made with grave abuse of discretion
amounting to lack or excess of jurisdiction, and
directing Judge Rossano to allow Reichter to testify in
the criminal case for the stated purpose. This is based
on the fact that the marital privilege rule does not
apply where a spouse committed the crime against the
other.
As the CA decision became final and executory, the
criminal case before the RTC was calendared for trial.
At the scheduled trial, the prosecution called Reichter
to the witness stand in order to testify on the same
matter it earlier announced. The defense objected on
the ground that the CA erred in its disposition of the
certiorari case. Judge Rossano sustained the objection
and again disallowed Reichter from testifying in the
criminal case. Repeated pleas from the prosecution
for Judge Rossano to reconsider his ruling and to
allow Reichter to testify fell on deaf ears.
May Judge Rossano be convicted of a crime? If yes,
what crime did he commit? (2018 BAR)
A: YES. Judge Rossano may be convicted of the crime of
Open Disobedience (Art. 231, RPC) which provides that
any judicial or executive officer who shall openly refuse to
execute the judgment, decision or order of any suspension
authority made within the scope of the jurisdiction of the
latter and issued with all the legal formalities shall suffer
the penalties of arresto mayor in its medium period to prision correctional, special disqualification and fine.
The ruling was issued by the Court of Appeals, it was
already final and executory; the act of Judge disallowing
Reichter from testifying is open disobedience under the
law.
ALTERNATIVE ANSWER: Judge Rossano may be charged
and convicted of the crime of Dereliction of Duty under
Art. 206 of the RPC, which provides: Art. 206. Unjust
interlocutory order. – Any judge who shall knowingly
render an unjust interlocutory order or decree shall suffer
the penalty of arresto mayor in its minimum period and
suspension; but if he shall have acted by reason of
inexcusable negligence or ignorance and the interlocutory
order or decree be manifestly unjust, the penalty shall be
suspension.
ANOTHER ALTERNATIVE ANSWER: Judge Rosario can
be held liable for violation of Sec. 3(e) of RA No. 3019 for
giving unwarranted preference, advantage or benefits to
private party through manifest partiality and evident bad
faith. In People v. Reyes (G.R. No. 177105-06, 12 Aug. 2010),
arrogant refusal to recognize and obey the CA decision
causing undue injury to the complainant and giving
unwarranted benefits ¢o private individuals constitutes
evident bad faith and manifest partiality contemplated in
violation of Sec. 3(e) of R.A. No. 3019. (UPLC Suggested
Answers)
Q: May a public officer charged under Section 3(b) of
Republic Act No. 3019 directly or indirectly
requesting or receiving any gift, present, share,
percentage or benefit, for himself or for any other
person, in connection with any contract or transaction
between the government and any other party,
wherein the public officer in his official capacity has to
intervene under the law’’ also be simultaneously or
successively charged with direct bribery under Article
210 of the Revised Penal Code? Explain. (2019, 2010,
2009 BAR)
A: Yes, a public officer charges under Sec. 3 (b) of R.A No.
3019 (Anti-Graft and Corrupt Practices Act) may also be
charged simultaneously or successively for the crime of
direct bribery under Art. 210 of the Revised Penal Code,
because two crimes are essentially different and are
penalized under distinct legal philosophies. Whereas
violation of Sec. (b) of R.A. No. 3019 is a malum
prohibitum, the crime under Art. 210 of the Code is a mala
in se. (Bar Q&A by Judge Alejandria, 2022)
NOTE: Although the charge for violation of R.A. No. 3019
and the charge for Indirect Bribery arose from the same
act, the elements of the violation charged under R.A. No.
3019 are not the same as the felony charged for Indirect
Bribery under the RPC. There is no double jeopardy if the
two cases shall be filed against the accused even if they
arose from the same incident.
Q: In 2003, the Province of Davao del Sur purchased
two vehicles for the use of the Governor and Vice
Governor, respectively. The purchase requests, which
were all signed by Luis as then Governor of the
province, requested for the acquisition of one unit of
Ford Ranger XLT 4x4 and one unit of Toyota Hilux
4x4. The procurement of the sublect vehicles did not
undergo competitive public bidding as it was effected
through direct purchase. The mode of procurement
was approved by the members of the Bids and Awards
Committee (BAC) of the province. The two vehicles
were delivered to the provincial government, and
after inspection and acceptance by the concerned
officials, payments were issued to the suppliers.
Subsequently, a complaint was filed by a concerned
citizen before the Office of the Ombudsman-Mindanao
(OMB) claiming that the purchase of the provincial
government violated the procurement law. The OMB,
after due investigation, verfied that the provincial
govemment did not comply with the required
procedure of the procurement law. Based on this
finding, the OMB filed with the Sandiganbayan an
Information against Luls and the members of the BAC
for violation of Section 3(e) of Republic Act No. 3019.
The Sandiganbayan found Luis and the members of
the BAC gully on the sole reason that violation of the
procurement law constitutes evident bad faith and
manifest partiality on the part of the accused.
Is the Sandiganbayan correct? Explain briefly. (2022
BAR)
A: The Sandiganbayan is not correct in convicting Luis and
the members of the BAC.
Criminal liability does not depend solely upon the
allegedly scandalous irregularity of the bidding procedure.
For even if it were true and proved beyond reasonable
doubt that the bidding had been rigged, this
pronouncement alone does not automatically result in
finding the act of petitioner similarly culpable. It is
presumed that he acted in good faith in relying upon the
documents he signed and thereafter endorsed. The
prosecution must show not only the defects in the bidding
procedure, a circumstance which we need not presently
determine, but also the alleged evident bad faith, gross
inexcusable negligence or manifest partiality on the
purchase order and despite knowledge that the winning
bidder did not offer the lowest price. In the instant case, Luis and the members of the BAC act of
pursuing the subject procurements was motivated not by
any corrupt intent to favor one car dealer over another or
to unduly receive any pecuniary benefit. Such actuations
were simply based on their honest belief that direct
procurement was legally permissible. (Martel vs. People,
G.R. Nos. 224720-23 & 224765-68, 2 Feb. 2021)
Q: One Sunday afternoon, Mr. X, President of ABC
Corp., happened to bump into the Labor Arbiter
assigned to the illegal dismissal case filed by certain
employees against his company. During their
encounter, Mr. X promised the Labor Arbiter a luxury
car in exchange for a favorable ruling. The Labor
Arbiter immediately rejected the offer and walked
away.
Assuming that Mr. X’s offer was instead accepted,
should the Labor Arbiter be held liable for any crime
under the RPC? If so, for what crime? May the Labor
Arbiter also be held liable for violation of the Anti-
Graft and Corrupt Practices Act? Explain. (2019 BAR)
A: The Labor Arbiter should be held liable for Direct
Bribery. Under Art. 210 of the RPC, public officer commits
direct bribery by accepting a gift in consideration of the
execution of an act which does not constitute a crime, in
connection with the performance of his official duties. By
accepting Mr. X’s offer of a luxury car, the Labor Arbiter
agreed to render a ruling in Mr. X’s favor.
The Labor Arbiter may also be held liable for violation of
RA 3019, or the Anti-Graft and Corrupt Practices Act.
Under Sec. 3(e), it is considered a corrupt practice of any
public officer to cause any undue injury to any party,
including the Government, or give any private party
unwarranted benefits, advantage or preference in the
discharge of his official, administrative or judicial
functions through manifest partiality when evident bad
faith, or gross inexcusable negligence. There is manifest
partiality when there is a clear, notorious or plain
inclination or predilection to favor one side or person
rather than another (Fuentes v. People, G.R. No. 186421, 17
Apr. 2017). Here, the Labor Arbiter committed manifest
partiality in favor of Mr. X. (UPLC Suggested Answers)
Q: Overjoyed by the award to his firm of a multi-billion
government contract for the development of an
economic and tourism hub in the Province of Blank,
Mr. Gangnam allotted the amount of P100 Million to
serve as gifts for certain persons instrumental in his
firm’s winning the award.
He gave 50% of that amount to Governor Datu, the
official who had signed the contract with the proper
authorization from the Sangguniang Panlalawigan;
25% to Bokal Diva, the Sangguniang Panlalawigan
member who had lobbied for the award of the project
in the Sangguniang Panlalawigan; and 25% to Mayor
Dolor of the Municipality where the project would be implemented. Governor Datu received his share
through his wife, Provincial First Lady Dee, who then
deposited the amount in her personal bank account.
Previously, upon facilitation by Bokal Diva, Mr.
Gangnam concluded an agreement with Mayor Dolor
for the construction of the Blank Sports Arena worth
P800 Million. The project was highly overpriced
because it could be undertaken and completed for not
more than P400 Million. For this project, Mayor Dolor
received from Mr. Gangnam a gift of P10 Million, while
Bokal Diva got P25 Million. In both instances, Bokal
Diva had her monetary gifts deposited in the name of
her secretary, Terry, who personally maintained a
bank account for Bokal Diva’s share in government
projects.
What provisions of R.A. No. 3019 (Anti-Graft & Corrupt
Practices Act), if any, were violated by any of the
above-named individuals, specifying the persons
liable therefor? Explain your answer. (2017 BAR)
A: Governor Datu, Mayor Dolor and Bokal Diva are liable
for violation of Sec. 3(b) of RA No. 3019 for receiving
money in connection with government contract or
transaction for the development of an economic and
tourism hub where they have the right to intervene under
the law. Likewise, Mr. Gangnam, is also liable for violation
of Sec. 3(b) of RA No. 3019 on the basis of conspiracy. (Go
v. The Fifth Division, Sandiganbayan, G.R. No. 172602, 13
Apr. 2007)
Mayor Dolor and Bokal Diva are liable for violation of Sec.
3(b) of RA No. 3019 for receiving money in connection
with government contract or transaction for the
construction of the Blank Sports Arena or violation of Sec.
3(e) for giving Mr. Gangnam, a private party, unwarranted
benefits, advantage or preference through manifest
partiality and evident bad faith by entering an agreement
for such construction, which is highly overpriced, or
violation of Sec. 3(g) for entering, on behalf of the
Government, into any contract or transaction for such
construction manifestly and grossly disadvantageous to
the same. Mr. Gangnam, for giving money to the said
public officers or for entering such contract, is also liable
for violation of Sec. 3(b) of RA No. 3019 on the basis of
conspiracy. (Go v. The Fifth Division, Sandiganbayan, supra)
(UPLC Suggested Answers)
Q: To aid in the rebuilding and revival of Tacloban City
and the surrounding areas that had been devastated
by the strongest typhoon. to hit the country in decades,
the Government and other sectors, including NGOs,
banded together in the effort. Among the NGOs was
Bangon Waray, Inc. (BaWI), headed by Mr. Jose Ma.
Gulang, its President and CEO. BaWI operated mainly
as a social amelioration and charitable institution. For
its activities in the typhoon-stricken parts of Leyte
Province, BaWI received funds from all sources, local
and foreign, including substantial amounts from legislators, local government officials and the EU. After
several months, complaints were heard about the very
slow distribution of relief goods and needed social
services by BaWI.
The COA reported the results of its audit to the effect
that at least P10 Million worth of funds coming from
public sources channeled to BaWI were not yet
properly accounted for. The COA demanded
reimbursement but BaWI did not respond.
Hence, Mr. Gulang was criminally charged in the Office
of the Ombudsman with malversation of public funds
and failure of accountable officer to render accounts as
respectively defined and punished by Art. 217 and Art.
218 of the RPC. He was also charged with violation of
Sec. 3(e) of R.A. No. 3019 for causing undue injury to
the Government. In his defense, Mr. Gulang mainly
contended that he could not be held liable under the
various charges because he was not a public officer.
Discuss whether the charge of violation of R.A. 3019
against Mr. Gulang is proper. Explain your answer.
(Question reframed) (2017 BAR)
A: NO. As a general rule, a private individual can be held
liable for violation of R.A. No. 3019 if he conspired with a
public officer in committing this crime (Go v. The Fifth
Division, Sandiganbayan, G.R. No. 172602, 13 Apr. 2007).
However, there is no showing in this case that a public
officer violated R.A. No. 3019 and Mr. Gulang conspired
with that public officer in committing this crime. Hence,
the charge against Mr. Gulang as a private individual
without a co-accused, who is a public officer, is improper.
(UPLC Suggested Answers)
Q:
(a) Melda who is the private secretary of Judge
Tolits Naya, was persuaded by a litigant,
Jumbo, to have his case calendared as early as
possible for a consideration of P500.00. May
she be held criminally liable for this
accommodation? Explain your answer. (1990
BAR)
(b) What will be the criminal liability of Melda if
she volunteered to persuade Judge Tolits Naya
to rule in Jumbo’s favor without asking any
consideration? Explain your answer. (1990
BAR)
(a) The answer would depend or be qualified by the
implication of the phrase “to have his case calendared as
early as possible.”
If the phrase is interpreted as an unjust act and in
violation of the rule to give priority to the older cases, then
she would be liable under direct bribery for an act which
does not constitute a crime but is unjust. He may also be
held liable under Sec. 3 (e) of RA 3019 for “giving any
private party any unwarranted benefits.”
If the phrase is interpreted as a non-violation of the rules
and regulations, then she can only be held liable for direct
bribery.
(b) A: Melda is not criminally liable because the act of
volunteering to persuade is not a criminal act. It is the act
of persuading that is considered a criminal act. The act
does not fall under Art. 210 of the RPC on Direct Bribery
nor does it fall under Art. 211 of the RPC on Indirect
Bribery. Neither does it fall under the Anti-Graft and
Corrupt Practices Act. Sec. 3(a) of R.A. No. 3019 refers to
acts of persuading another public official to violate rules
and regulations. (UPLC Suggested Answers)
Q: After a heated argument over his philandering,
Higino punched on the head his wife Aika, who was six
(6) and a half months pregnant. Because of the impact,
Aika lost her balance, fell on the floor with her head
hitting a hard object. Aika died and the child was
expelled prematurely. After 36 hours, the child died.
(2015 BAR)
(a) What crime(s) did Higino commit? Explain.
(b) Assuming that when the incident occurred,
Aika was only 6 months pregnant, and when
she died, the fetus inside her womb also died,
will your answer be different? Explain.
(a) Higino is liable for parricide under Art. 246 of the RPC
for the death of his wife, Aika. Higino is also liable for
infanticide under Art. 255 of the RPC. When a child was
killed below 3-days-old, the crime is infanticide regardless
of the person who killed such child. Moreso, a child who
had been born less than 7 months and lived for at least 24
hours already acquired personality. (Bar Q&A by Judge
Alejandria, 2022)
(b) YES. If the child died inside the womb of Aika, who was
only six months, the crime committed is complex crime of
Parricide with Unintentional Abortion. Killing the unborn
child as a result of the violence employed against the
mother without intent to abort is unintentional abortion.
Since the child died inside the womb of the mother,
unintentional abortion is committed regardless of viability
of the victim. Because the same violence that killed the
mother also caused unintentional abortion, the crime
committed is a complex crime (People v. Pacayna, Jr. G.R.
No. 179035, 16 Apr. 2008; People v. Robinos, G.R. No.
138453, 29 May 2002; People v. Villanueva, G.R. No. 95851,
01 Mar. 1995; People v. Salufrania, G.R. No. L-50884, 30
Mar. 1988) (UPLC Suggested Answers)
Q: Procopio, a call center agent assigned at a
graveyard shift, went home earlier than usual. He
proceeded immediately to their bedroom to change
his clothes. To his surprise, he found his wife Bionci in
bed making love to another woman Magna. Enraged,
Procopio grabbed a knife nearby and stabbed Bionci,
who died. (2015 BAR)
(a) What crime did Procopio commit, and what
circumstance attended the case? Explain.
(b) Assuming that Procopio and Bionci were
common-law spouses, will your answer be the
same? Explain.
(a) The crime committed by Procopio is parricide qualified
by the circumstance of relationship. Killing a spouse after
having been surprised in the act of committing sexual
intercourse with another woman is death under
exceptional circumstance under Art. 247 of the RPC.
However, in this case this is not death under exceptional
circumstance because Bionci was having homosexual
intercourse with another woman and not sexual
intercourse with a man. “Homosexual intercourse “is not
within the contemplation of the term “sexual intercourse”
in Art. 247. However, the crime of parricide is attended by
the circumstance of passion arising from a lawful
sentiment as a result of having caught his wife in the act of
infidelity with another woman. (People v. Belarmino, G.R.
No. L-4429, 18 Apr. 1952)
(b) NO, the answer will not be the same. Procopio will be
liable for homicide in the instant case but he is entitled to
a mitigating circumstance of passion and obfuscation. (Bar
Q&A by Judge Alejandria, 2022)
Q: In 1975, Pedro, then a resident of Manila,
abandoned his wife and their son, Ricky, who was then
only 3-years-old. 20 years later, an affray took place in
a bar in Olongapo City between Pedro and his
companions, on one hand, and Ricky and his friends,
upon the other, without the father and son knowing
each other. Ricky stabbed and killed Pedro in the
fight, only to find out, a week later, when his mother
arrived from Manila to visit him in jail, that the man
whom he killed was his own father. (1996 BAR)
(a) What crime did Ricky commit?
(b) Suppose Ricky knew before the killing that
Pedro is his father, but he nevertheless killed
him out of bitterness for having abandoned
him and his mother, what crime did Ricky
commit? Explain.
(a) Ricky committed parricide because the person killed
was his own father and the law punishing the crime (Art.
246, RPC) does not require that the crime be knowingly
committed.
(b)The crime committed should be parricide if Ricky knew
before the killing that Pedro is his father, because the
moral basis for punishing the crime already exists. His
having acted out of bitterness for having been abandoned
by his father may be considered mitigating. (UPLC
Suggested Answers)
Q: Aldrich was dismissed from his job by his employer.
Upon reaching home, his pregnant wife, Carmi, nagged
him about money for her medicines. Depressed by his
dismissal and angered by the nagging of his wife,
Aldrich struck Carmi with his fist. She fell to the
ground. As a result, she and her unborn baby died.
What crime was committed by Aldrich? (1994 BAR)
A: Aldrich committed the crime of Parricide with
Unintentional Abortion. When Aldrich struck his wife,
Carmi, with his fist, he committed the crime of
maltreatment under Art. 266(3) of the RPC. Since Carmi
died because of the felonious act of Aldrich, he is
criminally liable of parricide under Art. 246, RPC in
relation to Art. 4(1) 1 of the same Code. Since the unborn
baby of Carmi died in the process, but Aldrich had no
intention to cause the abortion of his wife, Aldrich
committed unintentional abortion as defined in Art. 257,
RPC. Inasmuch as the single act of Aldrich produced two
grave or less grave felonies, he falls under Art. 48, RPC, i.e.
a complex crime. (People v. Salufrancia, G.R. No. L-50884,
30 Mar. 1988) (UPLC Suggested Answers)
Q: Rafa caught his wife, Rachel, in the act of having
sexual intercourse with Rocco in the maid’s room of
their own house. Rafa shot both lovers in the chest,
but they survived. Rafa charged Rachel and Rocco with
adultery, while Rachel and Rocco charged Rafa with
frustrated parricide and frustrated homicide.
In the adultery case, Rachel and Rocco raised the
defense that Rafa and Rachel, prior to the incident in
question, executed a notarized document whereby
they agreed to live separately and allowed each of
them to get a new partner and live with anyone of
their choice as husband and wife. This document was
executed after Rachel discovered that Rafa was
cohabiting with another woman. Thus, they also
raised the defense of in pari delicto. In the frustrated
parricide and frustrated homicide cases, Rafa raised
the defense that, having caught them in flagrante
delicto, he has no criminal liability.
Will the actions for frustrated parricide and frustrated
homicide prosper? (2018 BAR)
A: YES. The actions for frustrated parricide and frustrated
homicide will prosper, and Rafa will be found guilty of
these crimes. The penalty, however, that the trial court can
impose is only destierro not penalties for frustrated
parricide and frustrated homicide, being the spouse of
Rachel. (Art. 246, RPC)
ALTERNATIVE ANSWER: NO. The actions for frustrated
parricide and frustrated homicide will not prosper
because Rafa is entitled to the benefit of Art. 247 of the
RPC.
Art. 247 of the RPC states that any legally married person
who having surprised his spouse in the act of committing
sexual intercourse with another person, shall kill any of
them or both of them in the act or immediately thereafter,
or shall inflict upon them any serious physical injury, shall
suffer the penalty of destierro. If he shall inflict upon them
physical injuries of any other kind, he shall be exempt
from punishment.
The action will prosper to allow the court to receive
evidence. However, Rafa can be held liable only for
destierro based on Art. 247 of the RPC. The act committed
by Rafa amounts to at least serious physical injuries, so
the penalty of destierro will be imposed. If the court finds
that the act amounts to less than serious physical injuries,
Rafa will not have any criminal liability. (UPLC Suggested
Answers)
Q: Jojo and Felipa are husband and wife. Believing that
his work as a lawyer is sufficient to provide for the
needs of their family, Jojo convinced Felipa to be a
stay-at-home mom and care for their children. One
day, Jojo arrived home earlier than usual and caught
Felipa in the act of having sexual intercourse with
their female nanny, Alma, in their matrimonial bed. In
a fit of rage, Jojo retrieved his revolver from inside the
bedroom cabinet and shot Alma, immediately killing
her. (2016 BAR)
(a) Is Art. 247 (Death or Physical Injuries Inflicted
Under Exceptional Circumstances) of the RPC
applicable in this case given that the
paramour was of the same gender as the
erring spouse? (2016, 2015 BAR)
(b) Is Felipa liable for adultery for having sexual
relations with Alma?
(a) NO, Art. 247 of the RPC is not applicable. Under the
RPC, for Art. 247 to apply, the offender must catch his or
her spouse in the act of committing sexual intercourse
with another person. In People v. Marciano Gonzales (G.R.
No. 46310, 31 Oct. 1939), the Court held that to avail of the
privilege under Art. 247, the accused should surprise his
wife in the “very act of sexual intercourse”. Sexual
intercourse generally presupposes the penetration of the
man’s sexual organ into that of a woman’s.
In this case, the paramour was of the same gender as the
erring spouse. As such, there is legally, no sexual
intercourse to speak of, hence, Art. 247 is not applicable.
ALTERNATIVE ANSWER: YES, Art. 247 of the RPC is
applicable. The requisites of Art. 247 are: (1) a legally
married person surprises his spouse in the act of
committing sexual intercourse with another person; (2) he
or she kills any or both of them or inflicts upon any or
both of them any serious physical injury “while in the act”
or immediately thereafter; and (3) he has not promoted or
facilitated the prostitution of his wife or that he or she has
not consented to the infidelity of the other spouse.
All the foregoing requisites are present in the case at hand.
It is a given in the problem that Jojo caught Felipa and
Alma in the “act of sexual intercourse.” The law did not
qualify that the other person with whom the spouse be
caught committing sexual intercourse be “male or female.”
Hence, the gender of the paramour, Alma, being of the
Same gender as the erring spouse, Felipa, is immaterial.
NOTE: The answer given presupposes that Jojo and Felipa
are legally married.
(b) NO. Under Art. 333 of the RPC, adultery is committed by
any married woman who shall have sexual intercourse
with a “man” not her husband. Thus, Felipa in having
homosexual intercourse with Alma, a “woman,” is not
committing adultery. (UPLC Suggested Answers)
Q: Macky, a security guard, arrived home late one
night after rendering overtime. He was shocked to see
Joy, his wife and Ken, his best friend, in the act of
having sexual intercourse. Macky pulled out his
service gun and shot and killed Ken. Macky was
charged with murder for the death of Ken.
The court found that Ken died under exceptional
circumstances and exonerated Macky of murder but
sentenced him to destierro. The court also ordered
Macky to pay indemnity to the heirs of the victim in
the amount of P50,000.00. Did the court correctly
order Macky to pay indemnity? (2007 BAR)
A: NO, the court did not act correctly. Since the killing of
Ken was committed under the exceptional circumstances
in Art. 247, RPC, it is the consensus that no crime was
committed in the light of the pronouncement in People v.
Coricor (G.R. No. 48768, 04 Dec. 1947) that banishment
(destierro) is intended more for the protection of the
offender rather than as a penalty. Since the civil liability
under the RPC is the consequence of the criminal liability,
there would be no legal basis for the award of indemnity
when there is no criminal liability. (UPLC Suggested
Answers)
Q: Define murder. What are the elements of the crime?
(1999 BAR)
A: Murder is the unlawful killing of a person which
otherwise would constitute only homicide, had it not been
attended by any of the following circumstances:
1. With treachery or taking advantage of superior
strength, or with the aid of armed men, or employing
means to weaken the defense or of means or persons
to insure or afford impunity;
2. In consideration of a price, reward or promise;
3. By means or on the occasion of inundation, fire,
poison, explosion, shipwreck, stranding of a vessel,
derailment or assault upon a railroad, fall of an
airship, or by means of motor vehicles, or with the use
of any other means involving great waste and ruin;
4. On occasion of an earthquake, eruption of a volcano,
destructive cyclone, epidemic or other public
calamity;
5. With evident premeditation; or
6. With cruelty, by deliberately and inhumanely
augmenting the suffering of the victim, or outraging or
scoffing at his person or corpse.
The elements of murder are: (1) that a person was
unlawfully killed; (2) that such a killing was attended by
any of the above-mentioned circumstances; (3) that the
killing is not parricide nor infanticide; and (4) that the
accused killed the victim. (UPLC Suggested Answers)
Q: Lina worked as a housemaid and yaya of the oneweek-
old son of the Sps. John and Joana. When Lina
learned that her 70-year-old mother was seriously ill,
she asked John for a cash advance of P20,000.00, but
the latter refused. In anger, Lina gagged the mouth of
the child with stockings, placed him in a box, sealed it
with masking tape, and placed the box in the attic.
Lina then left the house and asked her friend Fely to
demand a P20,000.00 ransom for the release of the
spouses’ child to be paid within twenty-four hours.
The spouses did not pay the ransom. After a couple of
days, John discovered the box in the attic with his
child already dead. According to the autopsy report,
the child died of asphyxiation barely minutes after the
box was sealed.
What crime or crimes, if any, did Lina and Fely
commit? Explain. (2016 BAR)
A: Lina is liable for murder. Gagging the mouth of the child
with stockings, placing him in a box, sealing it with
masking tape, and placing the box in the attic were only
the methods employed by the defendant in committing the
murder qualified by treachery (People v. Lora, G.R. No. L-
49430, 30 Mar. 1982). Taking advantage of the defenseless
condition of the victim by reason of his tender age, oneweek
old, is treachery. (People v. Fallorina, G.R. No. 137347,
04 Mar. 2004)
She is not liable for kidnapping with murder. The essence
of kidnapping or serious illegal detention is the actual
confinement or restraint of the victim or the deprivation
of his liberty. In this case, the victim was not deprived of
his liberty since he immediately died. The demand for
ransom did not convert the offense into kidnapping with
murder. The defendant was well-aware that the child
would be suffocated to death in a few moments after she
left. The demand for ransom is only a part of the diabolic
scheme of the defendant to murder the child, to conceal
his body and then demand money before the discovery of
the cadaver. (People v. Lora, G.R. No. L-49430, 30 Mar.
1982)
Fely is not liable for murder as principal or accomplice
since there is neither conspiracy or community of design
to commit murder since her criminal intention pertains to
kidnapping for ransom. In addition, her participation of
demanding ransom for the release of the child is not
connected to murder. Her criminal mind to assist Lina in
committing kidnapping for ransom is not constitutive of a
felony. Mens rea without actus reus is not a crime. (UPLC
Suggested Answers)
Q: Eddie brought his son Randy to a local faith healer
known as “Mother Himala.” He was diagnosed by the
faith healer as being possessed by an evil spirit. Eddie
thereupon authorized the conduct of a “treatment”
calculated to drive the spirit from the boy’s body.
Unfortunately, the procedure conducted resulted in
the boy’s death. The faith healer and tree others who
were part of the healing ritual were charged with
murder and convicted by the lower court. If you are
appellate court Justice, would you sustain the
conviction upon appeal? Explain your answer. (2007
BAR)
A: NO, the conviction of murder should not be sustained
because there was no intent kill. The intent of the accused,
on the contrary is to treat Randy of his illness. However,
considering that proximate cause of Randy’s death is the
ritual, accused may be held criminally liable for Reckless
Imprudence Resulting in Homicide. (UPLC Suggested
Answers)
Q: Candido stabbed an innocent bystander who
accidentally bumped him. The innocent bystander
died as a result of the stabbing. Candido was arrested
and was tested to be positive for the use of “shabu” at
the time he committed the stabbing.
What should be the proper charge against Candido?
Explain. (2005 BAR)
A: Candido should be charged with murder qualified by
treachery because the suddenness of the stabbing caught
the victim by surprise and was totally defenseless. Being
under the influence of dangerous drugs is a qualifying
aggravating circumstance in the commission of a crime
(Sec. 25, RA 9165, Comprehensive Dangerous Drugs Act of
2002). Hence, the penalty for murder shall be imposed in
the maximum.
ALTERNATIVE ANSWER: Candido should be charged
with homicide only because the incident which gave rise
to the stabbing occurred accidentally. There is no
conscious and deliberate adoption of the means, method,
and manner of attack. However, the penalty for homicide
shall be imposed in the maximum because Candido was
under the influence of dangerous drugs when he
committed the crime, which is a qualifying circumstance
under Sec. 25 of R.A. No. 9165.
Q: A, a 76-year-old woman, was brought to the
hospital in a coma with slight cerebral hemorrhage.
An endotracheal tube was inserted in her mouth to
facilitate her breathing. B, a hospital janitor, removed
the tube. The victim started to convulse and bleed in
the mouth. Only the timely arrival of the nurse
prevented the patient’s death. The patient was then
transferred to another hospital where she died the
next day of cardio-respiratory. Is B criminally liable?
If so, what crime was committed? (1991 BAR)
A: YES. B is criminally liable for Murder (qualified by
treachery) because the death of A appears to be the
proximate cause of the overt acts of B.
A died of cardio-respiratory arrest which evidently was
brought about by the convulsion and bleeding in the
mouth of the victim due to the removal by B of the
endotracheal tube twice. The two acts of B can be
considered as the result of one criminal design.
In People v. Umaging (G.R. No. L-52797, 31 Aug. 1981), the
Supreme Court ruled that removal of the endotracheal
tube is attempted murder, qualified by treachery, because
the patient did not die. (UPLC Suggested Answers)
Q: Explain and illustrate the stages of execution of the
crime of homicide, taking into account the nature of
the offense, the essential element of each of the stages
of execution and the manner of committing such
intentional felony as distinguished from felony
committed through reckless imprudence. (2012 BAR)
A: Homicide as an intentional felony has three stages,
attempted, frustrated and consummated. In whatever
stages homicide is committed, intent to kill must be
established for being an indispensable element thereof.
However, if the victim died as a consequence of wounds
caused by an act committed with malice, intent to kill is
conclusively presumed. Hence, the crime committed is
consummated homicide. If the victim died as a
consequence of an act committed with recklessness, the
crime committed is Reckless Imprudence Resulting in
Homicide. But if the victim did not die as a consequence of
wounds caused by an act committed with malice, intent to
kill must be established beyond reasonable doubt. If intent
to kill is proven, the crime committed is frustrated or
attempted homicide. If intent to kill is not proven, the
crime committed is physical injuries.
If the offender with intent to kill attempted to inflict or
inflicted non-mortal wound upon the victim, he already
directly commenced an overt act to commit homicide.
Hence, the crime committed is attempted homicide if he
failed to inflict mortal wounds upon the victim by reason
of some cause or accident other than his own spontaneous
desistance. If the offender with intent to kill inflicted
mortal wounds upon the victim, he already performed all
acts of execution which would produce the homicide as a
consequence. Hence, the crime is either frustrated
homicide if death is not produced despite the mortal
character of the wound due to cause independent of the
will of the offender or consummated homicide if death is
produce.
All the elements necessary for execution and
accomplishment of homicide are present if the victim die
due to wounds inflicted with the offender with intent to
kill.
ALTERNATIVE ANSWER:
Elements of the crime – homicide as an intentional felony
has three stages, attempted, frustrated and consummated.
In whatever stages homicide is committed, intent to kill
must be established for being an indispensable element
thereof. However, if the victim died as a consequence of
wound cause by an act committed with malice, intent to
kill in conclusively presumed and the crime committed is
consummated homicide. But if the victim did not die as a
consequence of wounds cause by an act committed with
malice, intent to kill must be established beyond
reasonable doubt. If intent to kill is proven, the crime
committed is frustrated or attempted homicide. If intent to
kill is not proven, the crime committed is physical injuries.
Thus, lack of intent to kill is a defense in attempted or
frustrated homicide.
Nature of the crime – if the offender with intent to kill
attempted to inflict or inflicted non-mortal wounds upon
the victim, he already directly commenced an overt act to
commit homicide. Hence, the crime committed is
attempted homicide if he failed to inflict mortal wounds
upon the victim by reason of some cause or accident other
than his own spontaneous desistance. If the offender with
intent to kill inflicted mortal wounds upon the victim, he
already performed all acts of execution which would have
produced the homicide as a consequence. If death is not
produced despite the mortal character of the wounds due
to causes independent to the will of the offender, the
crime committed is frustrated homicide. If death is
produced, the crime committed is consummated homicide.
Intentional felony and culpable felony – homicide
regardless of stages must be committed with malice
(general intent) and intent to kill (specific intent). Even if
there is no intent to kill and evil intent, the offender is
liable for culpable felony if the victim died or injured as a
result of the recklessness of the former. If there is no
intent to kill, evil intent, and recklessness on the part of
the accused, he is not liable for his intentional act, which
cause the death of or injury upon the victim because of the
exempting circumstance of accident. (UPLC Suggested
Answers)
Q: Moe, Curly, and Larry were drinking and singing
inside a karaoke bar when suddenly, Buboy entered
the bar and without warning, immediately shot all
three of them using a caliber .45 pistol.
Thereafter, Buboy ran out of the bar to escape. Moe,
Curly, and Larry died instantly due to gunshot wounds
in their heads and bodies. With the help of
eyewitnesses, Buboy was arrested. After inquest, the
prosecutor charged Buboy with three counts of Homicide.
Do you agree with the charge of Homicide against
Buboy? Explain briefly. (2022 BAR)
A: NO, I do not agree. Although, mere suddenness of the
attack is not sufficient to hold that treachery is present,
where the mode adopted does not positively tend to prove
that they thereby knowingly intended to ensure the
accomplishment of their criminal purpose without any
risk to themselves arising from the defense that the victim
might offer, the immediate and without warning attack
made by Buboy, consciously and deliberately adopted the
particular means. methods and forms in the execution of
the crime which tended directly to insure such execution,
without risk to himself. (People v. Gayon, GR No. 230221,
10 Apr. 2019)
The sudden and unexpected attack made on the
unsuspecting victims, depriving the latter of any chance to
defend themselves and thereby ensuring the commission
the crime constitutes treachery which qualifies the killing
to the crime of Murder.
Q: Ms. M, a Malaysian visiting the Philippines, was
about to depart for Hong Kong via an Indonesianregistered
commercial vessel. While on board the
vessel, which was still docked at the port of Manila,
she saw her mortal enemy, Ms. A, an Australian
citizen. Ms. A was seated at the front portion of the
cabin and busy using her laptop, with no idea
whatsoever that Ms. M was likewise onboard the ship.
Consumed by her anger towards Ms. A, Ms. M
stealthily approached the Australian from behind, and
then quickly stabbed her neck with a pocketknife,
resulting in Ms. A’s immediate death. Operatives from
the Philippine National Police - Maritime Command
arrested Ms. M for the killing of Ms. A, and thereafter,
intended to charge her under the RPC. Ms. M
contended that the provisions of the RPC cannot be
applied and enforced against her because both she
and the victim are not Filipino nationals, and besides,
the alleged crime was committed in an Indonesianregistered
vessel.
Assuming that the provisions of the RPC can be
applied against Ms. M, what crime under the RPC
should she be charged with? Explain. (2019 BAR)
A: Ms. M should be charged with the crime of Homicide
under the RPC. Art. 249 of the RPC punishes any person
who shall kill another without the attendance of any of the
qualifying circumstances mentioned in Art. 248, including
treachery. The suddenness of the attack does not by itself,
suffice to support a finding of alevosia, even if the purpose
was to kill, so long as the decision was made suddenly, and
the victim’s helpless position was accidental. (People v.
Lubreo, G.R. No. 74146, 02 Aug. 1991)
In a number of cases, the Court held that treachery cannot
be appreciated simply because the attack was sudden and
unexpected. (People v. Vilbar, G.R. No. 186541, 01 Feb.
2012)
ALTERNATIVE ANSWER: Ms. M should be charged with
Murder. She killed Ms. A by stealthily approaching the
latter from behind and stabbing the latter’s neck with a
pocketknife. Ms. M therefore employed means and
methods which tend directly and specially to insure the
execution of the planned killing, without risk to herself
arising from the defense which Ms. A might make. Hence,
there was treachery on Ms. M’s part, and treachery
qualifies an act of killing to Murder. (UPLC Suggested
Answers)
Q: Belle saw Gaston stealing the prized cock of a
neighbor and reported him to the police. Thereafter,
Gaston, while driving a car, saw Belle crossing the
street. Incensed that Belle had reported him, Gaston
decided to scare her by trying to make it appear that
he was about to run her over. He revved the engine of
his car and drove towards her but he applied the
brakes.
Since the road was slippery at that time, the vehicle
skidded and hit Belle causing her death. Was Gaston
criminally liable? What is the liability of Gaston? Why?
(2005 BAR)
A: YES, Gaston is liable for Belle’s death because even
though Gaston has no intent to kill Belle rather just to
scare Belle. “To scare” does not indicate intent to kill.
However, under Art. 4 of the RPC, provides in part that
criminal liability shall be incurred by any person
committing a felony although the wrongful act done be
different from that which he intended. In other words, the
rule is that when a person, by a felonious act, generates in
the mind of another a sense of imminent danger,
prompting the latter to escape from or avoid such danger
and in the process, sustains injuries or dies, the person
committing the felonious act is responsible for such
injuries or death. (US v. Valdez, , G.R. No. L-16486, 22 Mar.
1921; People v. Apra, G.R. No. L-26789, 25 Apr. 1969)
ALTERNATIVE ANSWER: YES, Gaston is liable for Belle’s
death because by his acts of revving the engine of his car
and driving towards Belle is felonious, and such felonious
act was the proximate cause of the vehicle to skid and hit
Belle, resulting in the latter’s death. Stated otherwise, the
death of Belle was the direct, natural and logical
consequence of Gaston’s felonious act. (People v. Apra, G.R.
No. L-26789, 25 Apr. 1969) (UPLC Suggested Answers)
Q: In a free-for-all brawl that ensued after some
customers inside a nightclub became unruly, guns
were fired by a group, among them A and B, that
finally put the customers back to their senses.
Unfortunately, one customer died. Subsequent
investigation revealed that A’s gunshot had inflicted on the victim a slight wound that did not cause the
deceased’s death nor materially contribute to it. It was
B’s gunshot that inflicted a fatal wound on the
deceased. A contended that his liability should, if at
all, be limited to slight physical injury. Would you
agree? Why? (2003 BAR)
A: NO. I beg to disagree with A’s contention that his
liability should be limited to slight physical injury only. He
should be held liable for attempted homicide because he
inflicted said injury with the use of a firearm which is a
lethal weapon. Intent to kill is inherent in the use of a
firearm. (Araneta, Jr. v. CA, G.R. No. L-43527, 03 July 1990)
(UPLC Suggested Answers)
Q: Tommy saw Lino and Okito engaged in a street
fight. Lino then suddenly drew his balisong and
lunged at Okito. In an effort to break up the fight,
Tommy tried to snatch the balisong from Lino but not
before the latter had inflicted a wound on Okito. As
Lino withdrew the weapon and attempted to stab
Okito a second time, Tommy tried to grab the weapon
again. In so doing, his left forearm was slashed. As he
succeeded in snatching away the balisong with his
right arm, it flew with such force, that it hit Nereo, a
passerby who was seriously injured. Explain your
answers fully. (1992 BAR)
(a) What is the criminal liability of Lino with
respect to Okito, Tommy and Nereo?
(b) In turn, is Tommy criminally liable to Nereo?
(a) As far as Okito is concerned, Lino is liable for frustrated
homicide, assuming that the wound suffered by Okito is
such that for reasons or causes independent of the will of
Lino (such as timely medical attention) Okito would have
died. If the injury is not serious enough, the liability is only
attempted homicide.
Intent to kill is manifest because of the use of a deadly
weapon. For the injury on the arm of Tommy, Lino is liable
only for physical injuries (serious, less serious or slight,
depending on the nature of the injury). Apparently, there
is no intent to kill.
For Nereo, Lino should be liable for serious physical
injuries as the wounding of Nereo was the natural and
logical consequences of Lino’s felonious act.
(b) Tommy is exempted from criminal liability for the
injury to Nereo as he was performing a lawful act with due
care and the injury was caused by mere accident (Art.
12(4)), or that he was in lawful exercise of a right (Art.
11(6)), that is, defense of a stranger. (UPLC Suggested
Answers)
Q: A, B and C are members of SFC Fraternity. While
eating in a seaside restaurant, they were attacked by
X, Y and Z, members of a rival fraternity. A rumble
ensued in which the above-named members of the two
fraternities assaulted each other in a confused and
tumultuous manner resulting in the death of A. As it
cannot be ascertained who actually killed A, the
members of the two fraternities who took part in the
rumble were charged for death caused in a
tumultuous affray. Will the charge prosper? Explain.
(2010 BAR)
A: NO, the charge of death caused in a tumultuous affray
will not prosper. In death caused by tumultuous affray
under Art. 251 of the Revised Penal Code, it is essential
that the persons involved did not compose groups
organized for the common purpose of assaulting and
attacking each other reciprocally. In this case, there is no
tumultuous affray since the participants in the rumble
belong to organized fraternities. The killer of A, a member
of SFC Fraternity could not be any other but member of
the rival fraternity. Conspiracy is therefore present among
the attackers from the rival fraternity and thus rules out
the idea of an affray. The liability of the attackers should
be collective for the crime of homicide or murder as the
case may be. (UPLC Suggested Answers)
Q: During a town fiesta, a free-for-all fight erupted in
the public plaza. As a result of the tumultuous affray, A
sustained one fatal and three superficial stab wounds.
He died a day after. B, C, D and E were proven to be
participants in the “rumble”, each using a knife
against A, but it could not be ascertained who, among
them, inflicted the mortal injury. Who shall be held
criminally liable for the death of A and for what?
(1997 BAR)
A: B, C, D, and E being participants in the tumultuous
affray and having been proven to have inflicted serious
physical injuries, or at least, employed violence upon A,
are criminally liable for the latter’s death. And because it
cannot be ascertained who among them inflicted the
mortal injury on A, there being a free-for-all fight or
tumultuous affray, B, C, D and E are all liable for the crime
of Death Caused in a Tumultuous Affray under Art. 251 of
the RPC. (UPLC Suggested Answers)
Q: Why is there no crime of frustrated serious physical
injuries? (2017 BAR)
A: According to Justice Regalado, the crime of physical
injuries is a formal crime since a single act consummates it
as a matter of law; hence, it has no attempted or frustrated
stage. Once the injuries are inflicted, the offense is consummated. (UPLC Suggested Answers)
Q: Mrs. Robinson is a teacher at an elementary school.
In one of her classes, she found, to her consternation,
that an 8-year-old Richard was always the cause of
distraction, as he was fond of bullying classmates
smaller in size than him.
One morning, Reymart, a 7-year-old pupil, cried
loudly and complained to Mrs. Robinson that Richard
had boxed him on the ear. Confronted by
Mrs. Robinson about Reymart’s accusation, Richard
sheepishly admitted the same. Because of this, Mrs.
Robinson ordered Richard to lie face down on a desk
during class. After Richard obliged, Mrs. Robinson hit
him ten (10) times on the legs with a ruler and
pinched his ears. Richard ran home and reported to
his mother what he had suffered at the hands of Mrs.
Robinson. When Richard’s parents went to Mrs.
Robinson to complain, she interposed the defense that
she merely performed her duty as a teacher to
discipline erring pupils.
Richard’s parents ask your advice on what actions can
be instituted against Mrs. Robinson for acts
committed on their minor child. (2018 BAR)
(a) May Mrs. Robinson be charged with child
abuse OR slight physical injuries? Explain.
(b) May Mrs. Robinson be charged with child
abuse AND slight physical injuries? Explain.
(a) YES. Mrs. Robinson can be charged with either child
abuse under R.A. No. 7610 or slight physical injuries if the
injuries inflicted constitute slight physical injuries. Sec. 10
of R.A. No. 7610 provides that “Any person who shall
commit any other acts of child abuse, cruelty, or
exploitation, or be responsible for other conditions
prejudicial to the child’s development including those
covered by Art. 59 of P.D. 603 but not covered by the RPC
shall suffer the penalty of prision mayor.”
In other words, Richard’s parents may choose to
prosecute Mrs. Robinson under the RPC or R.A. No. 7610. I
will advise them to consider R.A. No. 7610 as there was no
showing of the extent of the physical injuries inflicted.
(b) NO. Mrs. Robinson cannot be charged with both of child
abuse and slight physical injuries, because the latter is
deemed absorbed in the charge of child abuse. (UPLC
Suggested Answers)
Q: A, a male, takes B, another male, to a motel and
there, through threat and intimidation, succeeds in
inserting his penis into the anus of B. What, if any, is
A’s criminal liability? Why? (2002 BAR)
A: A shall be criminally liable for rape by committing an
act of sexual assault against B, by inserting his penis into
the anus of the latter.
Even a man may be a victim of rape by sexual assault
under par. 2 of Art. 266-A of the RPC, as amended, “when
the offender’s penis is inserted into his mouth or anal
orifice.” (UPLC Suggested Answers)
Q: If the slightest penetration of the female genitalia
consummates rape by carnal knowledge, how does the
accused commit attempted rape by carnal knowledge?
(2017 BAR)
A: It is consummated rape when it describes a penis
touching the vagina is the penis penetrating the cleft of the
labia majora, however minimum or slight. In other words,
the penis’ mere touch of the pudendum would not result
in any degree of penetration since the pudendum is a
muscular part located over the labia majora and therefore
mere touch of or brush upon the same would only
constitute attempted rape, not consummated. Similarly, a
penis’ mere grazing of the fleshy portion, not the vulva
cleft of the labia majora, will also constitute only
attempted rape and not consummated rape, since the
same cannot be considered to have achieved the slightest
level of penetration. Stated differently, the Court here
elucidates that “mere touch” of the penis on the labia
majora legally contemplates not mere surface touch or
skin contact, but the slightest penetration of the cleft of
the labia majora, however minimum in degree. (People v.
Agao, GR No. 248049, 04, Oct. 2022)
NOTE: this case is beyond the cut-off period.
ALTERNATIVE ANSWER: To be held liable for attempted
rape by carnal knowledge, the penis of the accused must
not touch the labia of the pudendum of the victim, but his
acts must be committed with clear intention to have
sexual intercourse. Intent to have sexual intercourse is
present if it is shown that the erectile penis of the accused
is in the position to penetrate (Cruz v. People, G.R. No.
166441, 08 Oct. 2014) or the accused actually commenced
to force his penis into the victim’s sexual organ. (People v.
Banzuela, G.R. No. 202060, 11 Dec. 2013) If the offender
touches the body of the victim through force, with lewd
design but without clear intention to have sexual
intercourse, the crime committed is acts of lasciviousness.
(People v. Sanico, G.R. No. 208469, 13 Aug. 2014) (UPLC
Suggested Answers)
Q: 16-year-old Aliswan prodded Amethyst, his
girlfriend, to remove her clothing while they were
secretly together in her bedroom late one evening.
Failing to get a positive response from her, he forcibly
undressed her. Apprehensive about rousing the
attention of the household who did not know of his
presence inside her room, she resisted him with
minimal strength, but she was really sobbing in a
muffled manner. He then undressed himself while
blocking the door. Yet, the image of a hapless and
sobbing Amethyst soon brought him to his senses and
impelled him to leave her room naked. He did not
notice in his hurry that Amante, the father of
Amethyst, who was then sitting alone on a sofa in the
sala, saw him leave his daughter’s room naked.
Outside the house, the now-clothed Aliswan spotted
Allesso, Amethyst’s former suitor. Knowing how
Allesso had aggressively pursued Amethyst, Aliswan
fatally stabbed Allesso. Aliswan immediately went
into hiding afterwards.
Upon learning from Amethyst about what Aliswan had
done to her, an enraged Amante wanted to teach
Aliswan a lesson he would never forget. Amante set
out the next day to look for Aliswan in his school.
There, Amante found a young man who looked very
much like Aliswan. Amante immediately rushed and
knocked the young man unconscious on the
pavement, and then draped his body with a prepared
tarpaulin reading “RAPIST AKO HUWAG TULARAN.”
Everyone else in the school was shocked upon
witnessing what had just transpired, unable to believe
that the timid and quiet Alisto, Aliswan’s identical
twin brother, had committed rape. (2017 BAR)
(a) A criminal complaint for attempted rape with
homicide was brought against Aliswan in the
Prosecutor’s Office. However, after
preliminary investigation, the Investigating
Prosecutor recommended the filing of two
separate Informations: one for attempted rape
and the other for homicide. Do you agree with
the recommendation? Explain.
(b) After receiving medical attendance for 10
days, Alisto consulted you about filing the
proper criminal complaint against Amante.
What crimes, if any, will you charge Amante
with? Explain.
(a) NO. I do not agree with the recommendation for the
filing of attempted rape. Intent to have sexual intercourse
is an essential element of attempted rape. In other words,
intent to lie with the victim must be closer. However, this
intent is not established for failure to show that Aliswan
had done acts to have sex with Amethyst (Cruz v. People,
G.R. No. 116441, 08 Oct. 2014); or that Aliswan had actually
commenced to force his penis into the victim’s sexual
organ (People v. Banzuela, G.R. No. 202060, 11 Dec. 2013).
Moreover, he spontaneously desisted from committing
further lascivious acts after undressing Amethyst which is
a defense in attempted rape. Undressing the victim with
lewd design merely constitutes Acts of Lasciviousness.
(People v. Sanico, G.R. No. 208469, 13 Aug. 2014)
However, I agree with the recommendation of separate
charges instead of a special complex crime. Acts of
lasciviousness cannot be merged with homicide to form a
special complex crime. There is no special complex crime
of acts of lasciviousness with homicide under the statute
books. Moreover, to be held liable of a special complex
crime, there must be a direct connection between the
components thereof. In this case, the homicide is not
directly connected with the acts of lasciviousness since the
killing was motivated by personal grudge of Aliswan
against Alesso, which has no link to the crime committed
against Amethyst.
(b) In People v. Lasala (G.R. No. L-12141, 30 Jan. 1962), the
Supreme Court ruled that the crime committed in Less
Serious Physical Injuries under Art. 265 of the RPC as the
medical attendance if for a period of 10 days only.
Considering, however, that the Less Serious Physical
Injuries was inflicted with manifest intent to insult or
offend the offended party or under circumstances adding
ignominy to the offense, there shall be an added penalty of
fine not exceeding P500 pesos. (Art. 265(2), RPC) (UPLC
Suggested Answers)
ALTERNATIVE ANSWER: Amante may be charged for
violation of R.A. No. 7610. Being 16 years old and a minor,
the act of Amante constitutes child abuse as he maltreated
Alisto when he inflicted on him physically with cruelty.
Further, by draping his body with a prepared tarpaulin
with a statement “rapist ako wag tularan,” it debases,
degrades or demeans the intrinsic worth and dignity of
Alisto. (Bar Q&A by Judge Alejandria, 2023)
Q: Maita was the object of Solito’s avid sexual desires.
Solito had attempted many times to entice Maita to a
date in bed with him but Maita had consistently
refused. Fed up with all her rejections, Solito abducted
Maita around 7 p.m. one night. With his cohorts, Solito
forced Maita into a Toyota lnnova and drove off with
her to a green-painted house situated in a desolate
part of the town. There, Solito succeeded in having
carnal knowledge of Maita against her will.
Meanwhile, the police authorities were tipped off that
at 11:30 p.m. on that same night Solito would be
selling marijuana outside the green-painted house.
Acting on the tip, the PNP station of the town formed a
buy-bust team with PO2 Masahol being designated the
poseur buyer. During the buy-bust operation, Solito
opened the trunk of the Toyota lnnova to retrieve the
bag of marijuana to be sold to PO2 Masahol. To cut the
laces that he had tied the bag with, Solito took out a
Swiss knife, but his doing so prompted PO2 Masahol to
effect his immediate arrest out of fear that he would
attack him with the knife. PO2 Masahol then
confiscated the bag of marijuana as well as the Toyota
lnnova.
Two Informations were filed against Solito in the RTC:
one for Forcible Abduction with Rape, raffled to
Branch 8 of the RTC; the other for Illegal Sale of Drugs,
assigned to Branch 29 of the RTC. Was Solito charged
with the proper offenses based on the circumstances?
Explain. (2017 BAR)
A: YES. The charge of Rape through Forcible Abduction is
correct. The rule is settled that if the main objective of the
accused is to rape the victim, the crime committed is rape
even if he abducted her forcefully. Forcible abduction is
absorbed. The doctrine of absorption rather than Art. 48
of the RPC is applicable, since forcible abduction is an
indispensable means to commit rape. (People v. Mejoraday,
G.R. No. 102705, 30 July 1993; People v. Almanzor, G.R. No.
124916, 11 July 2002; People v. Sabadablab, G.R. No.
175924, 14 Mar. 2012)
Where the victim was abducted with lewd design and
brought to a house (People v. Magdaraog, G.R. No. L-40988,
15 Apr. 1988; People v. Buhos, G.R. No. L-40995, 25 June
1980; People v. Velasquez, G.R. No. 137383-84, 23 Nov.
2000) in a desolated place where she was raped, forcible
abduction should be treated as a necessary means to
commit rape, and thus, the crime committed is a complex
crime of Rape through Forcible Abduction under Art. 48 of
the RPC.
The charge of sale of dangerous drugs is improper since
this crime is consummated only upon the delivery of the
dangerous drugs to the poseur buyer for a consideration.
Since in this case, Solito has not yet delivered the
marijuana to PO2 Masahol when the latter apprehended
the former; therefore, the crime committed is not sale of
dangerous drugs but Attempted Sale of Dangerous Drugs.
In People v. Figueroa (G.R. No. 186141, 11 Apr. 2012),
where the sale was absorbed when the police officers
immediately placed accused under arrest, the crime
committed is attempted sale. (UPLC Suggested Answers)
Q: Charlie was charged for the Qualified Rape of AAA.
The Information alleged that AAA was 14 years old at
the time the crime was committed and that Charlie
was AAA’s stepfather. The presentation of AAA’s birth
certificate during the trial duly established the
following: (1) that AAA was indeed 14 years old at the
time of the rape; and (2) that AAA’s mother is BBB and
her father was the late CCC. BBB and Charlie only
became live-in partners after CCC’s death. The RTC
found Charlie guilty of qualified rape. On appeal, the
Court of Appeals convicted Charlie of simple rape.
Charlie appealed before the Supreme Court. How will
you rule and why? (2015 BAR)
A: I will reverse the decision of the Court of Appeals and
convict Charlie for the crime of Qualified Rape.
Under Art. 266-B of the RPC, the crime of Rape is qualified
when the victim is under 18 years of age and the offender
is the common-law spouse of the parent of the victim. In
this case, Charlie was the common law spouse of BBB,
AAA’s mother. At the time of the crime, AAA was below 18
years old. The following qualifying circumstances were
alleged in the information and proven by the evidence.
Thus, Charlie should have been convicted of the Qualified
Rape and not Simple Rape only. (Compendious Bar
Reviewer on Criminal Law: Based on Bar Exam Syllabus
(2023) by Dean Nilo T. Divina)
Q: Flordeluna boarded a taxi on her way home to
Quezon City which was driven by Roger. Flordeluna
noticed that Roger was always placing his car
freshener in front of the car aircon ventilation but did
not bother asking Roger why. Suddenly, Flordeluna
felt dizzy and became unconscious. Instead of bringing
her to Quezon City, Roger brought Flordeluna to his
house in Cavite where she was detained for two (2)
weeks. She was raped for the entire duration of her
detention. May Roger be charged and convicted of the
crime of rape with serious illegal detention? (2000
BAR)
A: NO. Roger may not be charged and convicted of the
crime Rape with Serious Illegal Detention. Roger may be
charged and convicted of multiple rapes. Each rape is a
distinct off’ense and should be punished separately.
Evidently, his principal intention was to abuse Flordeluna;
the detention was only incidental to the rape. (UPLC
Suggested Answers)
Q: The complainant, an eighteen-year-old mental
retardate with an intellectual capacity between the
ages of 9 and 12 years, when asked during the trial
how she felt when she was raped by the accused,
replied “Masarap, it gave me much pleasure.”
With the claim of the accused that the complainant
consented for a fee to the sexual intercourse, and with
the foregoing answer of the complainant, would you
convict the accused of rape if you were the judge
trying the case? Explain. (1996 BAR)
A: YES, I would convict the accused of rape. Since the
victim is a mental retardate with an intellectual capacity of
a child less than 12 years old, she is legally incapable of
giving a valid consent to the sexual intercourse. The sexual
intercourse is tantamount to a statutory rape because the
level of intelligence is that of a child less than 16 years of
age (as amended by R.A No. 11648). Where the victim of
rape is a mental retardate, violence or intimidation is not
essential to constitute rape. (People v. Trimor, G.R. 106541-
42, 31 Mar. 1995) As a matter of fact, R.A. No. 7659, the
Heinous Crimes Law, amended Art. 335, RPC, by adding
the phrase “or is demented.” (UPLC Suggested Answers)
NOTE: in determining whether a person is “twelve (12)
years of age” under Article 266-A(l)(d), the interpretation
should be in accordance with either the chronological age
of the child if he or she is not suffering from intellectual
disability, or the mental age if intellectual disability is
established. (People v. Rabelas, GR No. 253603, 14 June
2021)
Q: The accused in a pending case forcibly snatched the
daughter of a Judge and kept her in an undisclosed
location. The accused then called to tell the Judge that
the daughter would only be released if the Judge
would acquit the accused in the pending case.
Did the accused commit a crime with these acts?
Explain briefly. (2020-21 BAR)
A: YES, the accused is liable for Serious Illegal Detention
against the daughter of the judge.
In the case at bar, when the accused detains the daughter
of the judge and was not allowed to be released until the
judge acquits him, there was actual deprivation of the
victim’s liberty. Deprivation of liberty is qualified to
serious illegal detention when the victim is a female
punishable under Art. 267 of the RPC.
The accused may also be liable for the crime Grave
Coercion under Art. 286 of the RPC. Since the purpose of
the accused is to compel the judge to acquit him, the
taking of the judge’s daughter constitutes violence to
control the judge to do something against his will. (Bar
Q&A by Judge Alejandria, 2022)
Q: Angelino, a Filipino, is a transgender who
underwent gender reassignment and had implants in
different parts of her body. She changed her name to
Angelina and was a finalist in the Miss Gay
International. She came back to the Philippines and
while she was walking outside her home, she was
abducted by Max and Razzy who took her to a house in
the province. She was then placed in a room and Razzy
forced her to have sex with him at knife’s point. After
the act, it dawned upon Razzy that Angelina is actually
a male. Incensed, Razzy called Max to help him beat
Angelina. The beatings that Angelina received
eventually caused her death. What crime or crimes, if
any, were committed? Explain. (2016 BAR)
A: Razzy is liable for Kidnapping with Homicide.
Abducting Angelino is not forcible abduction since the
victim in this crime must be a woman. Gender
reassignment will not make him a woman within the
meaning of Art. 342 of RPC. There is no showing,
moreover, that at the time abduction is committed with
lewd design; hence, his abduction constitutes illegal
detention. Since Angelino was killed in the course of the
detention, the crime constitutes Kidnapping and Serious
Illegal Detention with Homicide under Art. 267.
Having sexual intercourse with Angelino is not rape
through sexual intercourse since the victim in this crime
must be a woman. This act is not rape through sexual
assault either. Razzy did not insert his penis into the anal
orifice or mouth of Angelino or an instrument or object
into anal orifice or genital orifice, hence, this act
constitutes acts of lasciviousness under Art. 336. Since the
acts of lasciviousness is committed by reason or occasion
of kidnapping, it will be integrated into one and indivisible
felony of kidnapping with homicide. (People v. De Leon,
G.R. No. 179943, 26 June 2009; People v. Jugueta, G.R. No.
202124, 05 Apr. 2016)
Max is liable for kidnapping with homicide as an
accomplice since he concurred in the criminal design of
Razzy in depriving Angelino his liberty and supplied the
former material aid in an efficacious way by helping him
beat the latter. (UPLC Suggested Answers)
Q: A charged B with the crime of rape. While the case
was pending in court, B, together with his mother and
brother, overpowered A while riding a tricycle,
dragged her inside a carenderia owned by them and
detained her for two (2) days. They demanded that
she sign an affidavit of desistance and reimburse B the
sum of P5,000.00 which he paid to his lawyer in the
case. She was released only after she signed the
affidavit asking for the dismissal of the case and
delivered to B P1,000.00. She promised to deliver the
balance of P4,000.00 30 days later. What crime/s
was/were committed by B, his mother and brother?
(1991 BAR)
A: This is Kidnapping with Ransom which is kidnapping or
illegal detention committed by a private person for the
purpose of extorting ransom. Since the victim is a woman,
it is serious. (UPLC Suggested Answers)
Q: Virgilio, armed with a gun, stopped a van along a
major thoroughfare in Manila, pointed the gun at the
driver and shouted: “Tigil! Kidnap ito!”
Terrified, the driver, Juanito, stopped the van and
allowed Virgilio to board. Inside the van were
Jeremias, a 6-year-old child, son of a multi-millionaire,
and Daday, the child’s nanny. Virgilio told Juanito to
drive to a deserted place, and there, ordered the
driver to alight. Before Juanito was allowed to go,
Virgilio instructed him to tell Jeremias’ parents that
unless they give a ransom of P10-million within 2
days, Jeremias would be beheaded. Daday was told to
remain in the van and take care of Jeremias until the
ransom is paid. Virgilio then drove the van to his
safehouse.What crime or crimes, if any, did Virgilio commit?
Explain. (2009 BAR)
A: The crime committed against Jeremias, the 6-year-old
child, is Kidnapping with Serious Illegal Detention under
Art. 267(4) of the RPC.
The criminal intent of Virgilio is to deprive Jeremias his
liberty to demand ransom. Whether or not the ransom
was eventually obtained will not affect the crime
committed because the demand for ransom is not an
element of the crime; it only qualifies the penalty to death
but the imposition of the penalty is now prohibited by R.A.
No. 9346.
As to Daday, the nanny of the child who was told to remain
in the van and take care of the child until the ransom is
paid, the crime committed by Virgilio is Serious Illegal
Detention because the offended party deprived of liberty
is a female (Art. 267(4), RPC).
Virgilio also committed Grave Coercion (Art. 286, RPC) for
seriously intimidating the driver with a gun pointed at him
to drive to a deserted place.
Q: What is the criminal liability, if any, of a private
person who enters the dwelling of another against the
latter’s will and by means of violence or intimidation
for the purpose of preventing some harm to himself?
(2012 BAR)
a. The private person is criminally liable for
qualified trespass to dwelling.
b. The private person is criminally liable for
simple trespass to dwelling.
c. The private person incurs no criminal
liability.
d. The private person is criminally liable for
light threats.
A: C. Under Art. 280 of the RPC, qualified trespass to
dwelling is committed by any private person who shall
enter the dwelling of another against the latter’s will and
by means of violence or intimidation. However, the
provisions of Art. 280 shall not be applicable to any
person who shall enter another’s dwelling for the purpose
of preventing some serious harm to himself. (UPLC
Suggested Answers)
Q: At about 11:00 in the evening, Dante forced his way
inside the house of Mamerto. Jay, Mamerto’s son, saw
Dante and accosted him. Dante pulled a knife and
stabbed Jay in his abdomen. Mamerto heard the
commotion and went out of his room. Dante, who was
about to escape, assaulted Mamerto. Jay suffered
injuries which, were it not for the timely medical
attendance, would have caused his death. Mamerto
sustained injuries that incapacitated him for 25 days.
What crime/s did Dante commit? (1994 BAR)
A: Dante committed qualified trespass to dwelling,
frustrated homicide for the stabbing of Jay, and less
serious physical injuries for the assault on Mamerto.
The crime of qualified trespass to dwelling should not be
complexed with frustrated homicide because when the
trespass is committed as a means to commit a more
serious crime, trespass to dwelling is absorbed by the
greater crime and the former constitutes an aggravating
circumstance of dwelling. (People v. Abedosa, G.R. No. L-
28600, 21 Mar. 1928)
Dante committed frustrated homicide for the stabbing of
Jay because he had already performed all the acts of
execution which would have produced the intended felony
of homicide were it not for causes independent of the act
of Dante. Dante had the intent to kill judging from the
weapon used, the manner of committing the crime and the
part of the body stabbed.
Dante is guilty of less serious physical injuries for the
wounds sustained by Mamerto. There appears to be no
intent to kill because Dante merely assaulted Mamerto
without using the knife. (UPLC Suggested Answers)
B, A took and seized personal property by compulsion
from B with the use of violence and force upon things,
believing himself to be the owner of the personal
property so seized. What is the criminal liability of A?
(2012 BAR)
A. A is criminally liable for robbery with violence
because he employed violence in the taking of
the personal property from B, robbery
characterized by violence being graver than
ordinary robbery committed with force upon
things.
B. A is criminally liable for robbery with force
upon things in an inhabited house because the
act was committed in a house constituting the
dwelling of one or more persons.
C. A is criminally liable for grave coercion
because the presumption of intent to gain is
rebutted.
D. A is criminally liable for qualified trespass to
dwelling because he employed violence.
A: C. A is criminally liable for grave coercion because
the presumption of intent to gain is rebutted.
A is not criminally liable for robbery since the
presumption of intent to gain, an element of this crime, is
rebutted because he took the personal property under a
bona fide belief that he owns the property. However, A is
liable for grave coercion because he used violence in
seizing the property by reason of his mistaken belief that
he owned it.
Q:
(a) Distinguish coercion from illegal detention.
(1999 BAR)
A: Coercion may be distinguished from illegal detention as
follows: In coercion, the basis of criminal liability is the
employment of violence or serious intimidation
approximating violence, without authority of law, to
prevent a person from doing something not prohibited by
law or to compel him to do something against his will
whether it be right or wrong; while in Illegal Detention,
the basis of liability is the actual restraint or locking up of
a person thereby depriving him of his liberty without
authority of law. If there was no intent to lock up or detain
the offended party unlawfully, the crime of illegal
detention is not committed.
(b) Forcibly brought to the police headquarters, a
person was tortured and maltreated by agents
of the law to compel him to confess a crime
imputed to him. The agents failed, however, to
draw from him a confession which was their
intention to obtain through the employment of
such means. What crime was committed by
the agents of the law? (1999 BAR)
A: Evidently, the person tortured and maltreated by the
agents of the law is a suspect and may have been detained
by them. If so and he had already been booked and put in
jail, the crime is Maltreatment of Prisoner and the fact that
the suspect was subjected to torture to extort a confession
would bring about a higher penalty, in addition to the
offender’s liability for the physical injuries inflicted.
But if the suspect was forcibly brought to the police
headquarters to make him admit the crime and
tortured/maltreated to make him confess to such crime,
but later released because the agents failed to draw such
confession, the crime is Grave Coercion because of the
violence employed to compel such confession without the
offended party being confined in jail. (US v. Cusi, G.R. No. L-
3699, 18 Mar. 1908)
It is noted that the offended party was merely “brought” to
the police headquarters and is thus not a detention
prisoner. Had he been validly arrested, the crime
committed would be Maltreatment of Prisoners. (UPLC
Suggested Answers)
Q: Isagani lost his gold necklace bearing his initials. He
saw Roy wearing the said necklace. Isagani asked Roy
to return to him the necklace as it belongs to him, but
Roy refused. Isagani then drew his gun and told Roy,
“If you will not give back the necklace to me, I will kill
you!” Out of fear for his life and against his will, Roy
gave the necklace to Isagani. What offense did Isagani
commit? (1998 BAR)
A: Isagani committed the crime of Grave Coercion (Art.
286, RPC) for compelling Roy, by means of serious threats
or intimidation, to do something against the latter’s will,
whether it be right or wrong. Serious threats or
intimidation approximating violence constitute grave
coercion, not grave threats. Such is the nature of the threat
in this case because it was committed with a gun, is a
deadly weapon.
The crime cannot be robbery because intent to gain, which
is an essential element of robbery, is absent since the
necklace belongs to Isagani. (UPLC Suggested Answers)
Q: Lina worked as a housemaid and yaya of the oneweek-
old son of the Sps. John and Joana. When Lina
learned that her 70-year old mother was seriously ill,
she asked John for a cash advance of P20,000.00, but
the latter refused. In anger, Lina gagged the mouth of
the child with stockings, placed him in a box, sealed it
with masking tape, and placed the box in the attic.
Lina then left the house and asked her friend Fely to
demand a P20,000.00 ransom for the release of the
spouses’ child to be paid within 24 hours. The spouses
did not pay the ransom. After a couple of days, John
discovered the box in the attic with his child already
dead. According to the autopsy report, the child died
of asphyxiation barely minutes after the box was
sealed.
What crime or crimes, if any, did Lina and Fely
commit? Explain. (2016 BAR)
A: The crime committed by Lina is Murder for killing a
child of tender years. Fely shall not be liable for murder
because there is no showing that she participated with
Lina in putting the child in the box which caused the
latter’s death.
The act of demanding ransom by Fely would not
constitute the crime of Kidnapping since there was
actually no “taking to another place” was committed for
the purpose of detaining the child in exchange for ransom.
Fely may be liable however for Light Coercion under Art.
287(2) of the RPC, which provides; any other coercions or
unjust vexations shall be punished by arresto menor or a
fine ranging from 5 pesos to 200 pesos, or both, for
demanding ransom for the release of the spouses’ child to
be paid within 24 hours. It cannot be said that such act
constitutes Grave Coercion in the absence of violence
employed. (UPLC Suggested Answers)
Q: One Sunday afternoon, while standing at the corner
of C.P. Garcia and Katipunan Avenues, an off-duty
police officer accosted a motorcycle rider and asked
them to alight. The off-duty police officer then
inspected the motorcycle’s compartment box.
Pretending that a sachet of shabu was found, the offduty
police officer demanded PHP1,000.00 in order to
prevent an arrest.
Fearful of being incarcerated for life for a crime that
was not really committed, the motorcycle rider
readily complied. Unknown to the off-duty police
officer, a surveillance camera caught the entire
incident. Will a charge of robbery prosper against the
off-duty police officer? Explain briefly. (2020-21 BAR)
A: YES, the charge for Robbery against off-duty police
officer will prosper.
The elements of the crime of robbery under Art. 293 of the
RPC are (1) that there is taking of personal property; (2)
the personal property belongs to another; (3) the taking is
with animus lucrandi; and (4) the taking is with violence
against or intimidation of persons or force upon things.
There is intimidation when there is unlawful coercion;
extortion, duress; putting in fear. To take, or attempt to
take, by intimidation means “willfully to take, or attempt
to take, by putting in fear of bodily harm.” As shown in
United States v. Osorio (G.R. No. 6660, 17 Jan. 1912),
material violence is not indispensable for there to be
intimidation, intense fear produced in the mind of the
victim which restricts or hinders the exercise of the will is
sufficient. (Jomar Ablaza v. People, G.R. No. 217722, 26 Sept.
2018)
In this case, the demand of the police officer for PHP1,000
to refrain from arresting the motorcycle rider and because
of fear of being incarcerated for a crime he did not commit
and the motorcycle rider complied, the charge for robbery
against the off-duty police officer is proper since the
taking with intent to gain, committed through intimidation
are present. (Bar Q&A by Judge Alejandria, 2022)
Q: A entered the house of another without employing
force or violence upon things. He was seen by a maid
who wanted to scream but was prevented from doing
so because A threatened her with a gun. A then took
money and other valuables and left. Is A guilty of theft
or robbery? Explain. (2002 BAR)
A: A is liable for robbery because the intimidation he
employed on the maid before the taking of the money and
other valuables. It is the intimidation of the person
relative to the taking that qualifies the crime as robbery,
instead of simply theft.
The non-employment of force upon things is of no
moment because robbery is committed not only by
employing force upon things but also by employing
violence against or intimidation of persons. (UPLC
Suggested Answers)
Q: A, brother of B, with the intention of having a night
out with his friends, took the coconut shell which is
being used by B as a bank for his coins from inside
their locked cabinet using their common key.
Forthwith, A broke the coconut shell outside of their
home in the presence of his friends. (2003 BAR)
(a) What is the criminal liability of A, if any?
Explain.
(b) Is A exempted from criminal liability under
Art. 332 of the RPC for being a brother of B?
Explain.
(a) A is criminally liable for Robbery with Force upon
Things, because the coconut shell with the coins inside,
was taken with intent to gain and broken outside of their
home. (Art. 299 (b)(2), RPC)
(b) NO. A is not exempt from criminal liability under Art.
332 because said Article applies only to theft, swindling,
or malicious mischief. Here, the crime committed is
robbery. (UPLC Suggested Answers)
Q: In dire need of money, Mr. R decided to steal from
his next-door neighbor, Mrs. V. On the night of May 15,
2010, Mr. R proceeded with his plan entered Mrs. V’s
bedroom by breaking one of the windows from the
outside. Finding Mrs. V sound asleep, he silently
foraged through her cabinet, and stashed all the
bundles of cash and jewelries he could find.
As Mr. R was about to leave, he heard Mrs. V shout,
“Stop or I will shoot you!”, and when he turned
around, he saw Mrs. V cocking a rifle which has
pointed at him. Fearing for his life, Mr. R then lunged
at Mrs. V and was able to wrest the gun away from her.
Thereafter, Mr. R shot Mrs. V, which resulted in her
death. Mr. R’s deeds were discovered on the very same
night as he was seen by law enforcement authorities
fleeing the crime scene. What crime/s did Mr. R commit under the RPC?
Explain. (2019 BAR)
A: Mr. R committed Robbery with Homicide under Art.
293, in relation to Art. 294, par. 1 of the RPC. The elements
of the crime are: (a) the taking of personal property with
the use of violence or intimidation against the person; (b)
the property taken belongs to another; (c) the taking is
characterized by intent to gain or animus lucrandi; and (d)
on the occasion or by reason of the robbery, the crime of
homicide, as used it is generic sense, was committed. It
must be established that the original criminal design of the
malefactor is to commit robbery and the killing is merely
incidental thereto.
Here, Mr. R’s intent to commit robbery preceded the
taking of Mrs. V’s life. The killing took place on the
occasion or by reason of the robbery. (UPLC Suggested
Answers)
Q: Wielding loose firearms, Rene and Roan held up a
bank. After taking the bank’s money, the robbers ran
towards their getaway car, pursued by the bank
security guards. As the security guards were closing in
on the robbers, the two fired their firearms at the
pursuing security guards. As a result, one of the
security guards was hit on the head causing his
immediate death.
For the taking of the bank’s money and killing of the
security guard with the use of loose firearms, the
robbers were charged in court in two separate
Informations, one for Robbery with Homicide
attended by the aggravating circumstance of use of
loose firearms, and the other for Illegal Possession of
Firearms. Are the indictments correct? (2018 BAR)
A: The indictment for Robbery with Homicide is correct.
Robbery with homicide, a special complex crime, is
primarily a crime against property and not against
persons, homicide being a mere incident of the robbery
with the latter being the main purpose of the criminal. The
elements of robbery with homicide are: (a) the taking of
personal property with the use of violence or intimidation
against a person; (b) the property thus taken belongs to
another; the taking is characterized by intent to gain or
animus lucrandi; and (d) on the occasion, the crime of
homicide, which is therein used in a generic sense, was
committed.
The indictment for Illegal Possession of Firearm is wrong.
In the case of People v. Gaborne (G.R. No. 210710, 27 July
2016), the Supreme Court clarified the issue, to wit: In
view of the amendments introduced by R.A. No. 8294 and
R.A. No. 10591, to P.D. No. 1866, separate prosecutions for
homicide and illegal possession are no longer in order.
Instead, illegal possession of firearm is merely to be taken
as an aggravating circumstance in the crime of murder. It
is clear from the foregoing that where murder results
from the use of an unlicensed firearm, the crime is not
qualified illegal possession but murder. In such a case, the
use of the unlicensed firearm is not considered as a
separate crime but shall be appreciated as a mere
aggravating circumstance.
Thus, where murder was committed, the penalty for illegal
possession of firearms is no longer imposable since it
becomes merely a special aggravating circumstance. The
intent of Congress is to treat the offense of illegal
possession of firearm and the commission of homicide or
murder with the use of unlicensed firearm as a single
offense. (UPLC Suggested Answers)
Q: A person who, on the occasion of a robbery, kills a
bystander by accident is liable for two separate
crimes: robbery and reckless imprudence resulting in
homicide. (2009 BAR)
A: FALSE, the crime committed is still Robbery with
Homicide because when someone dies, regardless who the
person is and regardless the number of persons killed on
occasion of Robbery, the crime committed is Robbery with
Homicide.
Q: Christopher, John, Richard, and Luke are fraternity
brothers. To protect themselves from rival
fraternities, they all carry guns wherever they go. One
night, after attending a party, they boarded a taxicab,
held the driver at gunpoint and took the latter’s
earnings.
What crime, if any, did the four commit? Enumerate
the elements of the crime. (2010 BAR)
A: The crime committed is robbery by a band since there
were four (4) offenders acting in concert in committing
the robbery and all the four were armed.The elements of
this crime are: 1. unlawful taking of personal property
belonging to another (the earnings of the taxi-driver);2.
intent to gain in the taking; 3. violence against or
intimidation of person or force upon things was employed
in the taking; and4. there were more than three armed
malefactors taking part in the commission of the robbery
(Art. 296 in relation to Art. 294, Revised Penal Code)
Q: While executing a search warrant, a police officer
pocketed and absconded with the mobile phone of the
occupant of the premises being searched. The mobile
phone was not the subject of the search warrant. It
was not enumerated in the order.
Did the police officer commit a crime? Explain briefly.
(2020-21 BAR)
A: YES, the police officer is liable for Theft. Theft is
consummated when three (3) elements concur: (1) the
actual act of taking without the use of violence,
intimidation, or force upon persons or things; (2) intent to
gain on the part of the taker; and (3) the absence of the
owner’s consent.
The police officer who is not authorized to take the mobile
phone, not being included as subject of the search warrant
and he took the same without to gain or animus lucrandi is
presumed from the unlawful taking by the offender of
thing subject of asportation. (Bar Q&A by Judge Alejandria,
2022)
Q: During a Senate hearing in aid of legislation, a
Senator’s staff member took a resource person’s
mobile phone without their consent or knowledge.
While the hearing was ongoing, the staff member read
the resource person’s messages contained in the
mobile phone and hurriedly wrote notes which were
passed to the Senator. Thereafter, the staff
surreptitiously returned the mobile phone.
The resource person would not have noticed that the
mobile phone was taken had it not been for a TikTok
video posted by a journalist who was present during
the hearing. The TikTok video caught the entire act of
the Senator’s staff member. The TikTok video even
had accompanying music and narration. The video
became viral. Can the staff member be liable for Theft
of the mobile phone? Explain briefly. (2020-21 BAR)
A: YES, the staff member shall be liable for the crime of
Theft.
Theft is consummated when three (3) elements concur:
(1) the actual act of taking without the use of violence,
intimidation, or force upon persons or things; (2) intent to
gain on the part of the taker; and (3) the absence of the
owner’s consent.
Intent to gain is presumed from all furtive taking of useful
property appertaining to another, unless special
circumstances reveal a different intent on the part of the
perpetrator. (Herman Medina v. People, G.R. No. 182648, 17
June 2015)
The act of the staff member in taking the mobile phone,
without the owner’s consent and his act of taking
information therein to be used by the Senator that may be
used by him in the session satisfies the element of intent
to gain. The fact that the mobile phone was returned is of
no moment as the crime had already been consummated.
(Bar Q&A by Judge Alejandria, 2022)
Q: Is the crime of theft committed by a person who,
with intent to gain, takes a worthless check belonging
to another without the latter’s consent? (2012 BAR)
A: YES. All the elements of the crime of theft are present:
that there be taking of personal property; that the
property belongs to another; and that the taking be done
with intent to gain and without the consent of the owner.
Q: Is the crime of theft susceptible of commission in
the frustrated stage? Explain your answer in relation
to what produces the crime of theft in Its
consummated stage and by way of illustration of the
subjective and objective phases of the felony. (2011
BAR)
A: There is no crime of Frustrated Theft, and this is wellsettled
in the case of Valenzuela v. People. In that case, the
SC held that unlawful taking/asportacion, is the
deprivation of the one’s personal property, is also the
element which produces Consummated Theft. This is
deemed complete from the moment the offender gains
possession of the thing belonging to another. Without
asportacion, there can only be attempted theft. That being
the case, the crime of theft cannot be committed in the
frustrated stage.
Q: On the way home from work, Rica lost her necklace
to a snatcher. A week later, she saw what looked like
her necklace on display in a jewelry store in Raon.
Believing that the necklace on display was the same
necklace snatched from her the week before, she
surreptitiously took the necklace without the
knowledge and consent of the store owner. Later, the
loss of the necklace was discovered, and Rica was
shown on the CCTV camera of the store as the culprit.
Accordingly, Rica was charged with theft of the
necklace. Rica raised the defense that she could not be
guilty as charged because she was the owner of the
necklace and that the element of intent to gain was
lacking.
What should be the verdict if: (2018 BAR)
(a) The necklace is proven to be owned by Rica?
(b) It is proven that the store acquired the
necklace from another person who was the
real owner of the necklace?
(a) Under Art. 308 of the RPC, theft is committed by any
person who, with intent to gain but without violence,
against, or intimidation of persons nor force upon things,
shall take personal property of another without the
latter’s consent. While the CCTV captured Rica
surreptitiously taking the necklace from a jewelry store
without the knowledge and consent of the store owner,
she cannot be charged with theft, because the taking was
made under a claim of ownership. The fact of ownership
negates any intention to gain, as Rica cannot steal the
necklace which she claims to own.
(b) Even if it was proven that the necklace was bought by
the store from another person who was the real owner of
the necklace, Rica still cannot be held liable for theft
absent a felonious intent. “Actus non facit reum, nisi mens
sit rea”. A crime is not committed if the mind of the person
performing the act complained of is innocent.
The ruling in U.S. v. Vera (1 Phil 485, 31 May 1974) is
emphatic; i.e., if a person takes personal property of
another believing it to be his own, the presumption of
intent to gain is rebutted and therefore he is not guilty of
theft. (UPLC Suggested Answers)
Q: Bruno, a taxi driver, had an indebtedness in the
sum of P10,000.00 which would become due in one
week. He was starting to worry because he still had
not raised the amount to pay for his debt. Every day,
he had prayed for divine intervention. One night,
while returning the taxi to the garage, he found a
wallet on the back seat. Inspecting it, he learned that it
contained exactly P10,000.00 cash, the amount of his
obligation, and IDs. Thinking it was divine
intervention, and that his prayers were answered, he
took the money and used it to pay his debt. (2015
BAR)
(a) What crime, if any, did Bruno commit?
Explain.
(b) Assuming that instead of using the money,
Bruno turned over the wallet and its contents
to the nearby police station, and it was the
chief of police of that station who
appropriated the money for his own benefit,
what crime was committed by the chief of
police? Explain.
(a) Bruno committed the crime of theft. The owner is
known to Bruno because there are IDs found in the wallet.
Under Art. 308 of RPC, “theft is likewise committed by any
person who, having found lost property, shall fail to
deliver the same to the local authorities or to its owner”
(b) The chief of police is liable for theft. Although he is not
the one who found the property, he is considered as finder
in fact since the property was surrendered to him by the
actual finder. He acquired the position occupied by the
actual finder and assumed by voluntary substitution the
obligation to surrender the property to the lawful owner.
Appropriating the property is of the same character of that
made by one who originally found the same. (People v.
Avila, G.R. No. L-19786, 31 Mar. 1923) The liability of the
finder in fact is the same liability of the finder in law. Thus,
what the Chief of Police committed is Theft. (UPLC
Suggested Answers)
Q: Francis Garcia, a Jollibee waiter, found a gold
bracelet in front of his working place in Makati and,
upon inspecting it, saw the name and address of the
owner engraved on the inside. Remembering his
parents’ admonition that he should not take anything
which does not belong to him, he delivered the
bracelet to PO1 Jesus Reyes of the Makati quad
precinct with the instruction to locate the owner and
return it to him. PO1 Reyes, instead, sold the bracelet
and misappropriated the proceeds. Subsequent events
brought out the fact that the bracelet was dropped by
a snatcher who had grabbed it from the owner a block
away from where Francis had found it and further
investigation traced the last possessor as PO1 Reyes.
Charged with theft, PO1 Reyes reasoned out that he
had not committed any crime because it was not he
who had found the bracelet, and moreover, it turned
out to have been stolen. Resolve the case with reasons.
(2001 BAR)
A: PO1 Reyes is criminally liable. His contention that he
has not committed any crime because he was not the one
who found the bracelet and it turned out to be stolen also,
is devoid of merit. It is enough that the bracelet belonged
to another and the failure to restore the same to its owner
is characterized by intent to gain.
The act of PO1 Reyes of selling the bracelet which does not
belong to him and which he only held to be delivered to its
owner, is furtive misappropriation with intent to gain.
Where a finder of lost or mislaid property entrusts it to
another for delivery to the owner, the person to whom
such property is entrusted and who accepts the same,
assumes the relation of the finder to the owner as if he
was the actual finder; if he would misappropriate it, he is
guilty of theft. (People v. Avila, G.R. No. L-19786, 31 Mar.
1923) (UPLC Suggested Answers)
Q: Sunshine, a “beauteous” colegiala but a shoplifter,
went to the Ever Department Store and proceeded to
the women’s wear section. The saleslady was of the
impression that she brought to the fitting room three
(3) pieces of swimsuits of different colors. When she
came out of the fitting room, she returned only two (2)
pieces to the clothes rack. The saleslady became
suspicious and alerted the store detective. Sunshine
was stopped by the detective before she could leave
the store and brought to the office of the store
manager. The detective and the manager searched her
and found her wearing the third swimsuit under her
blouse and pants. Was the theft consummated,
frustrated, or attempted? Explain. (2000 BAR)
A: The theft was consummated because the taking or
asportation was complete. The asportation is complete
when the offender acquired the exclusive control of the
personal property being taken. In this case, when
Sunshine wore the swimsuit under her blouse and pants
and was on her way out of the store, with evident intent to
gain, the taking constitutes theft and being complete, it is
consummated. It is not necessary that the offender is in a
position to dispose of the property. (UPLC Suggested
Answers)
Q: A fire broke out in a department store. A, taking
advantage of the confusion, entered the store and
carried away goods which he later sold. What crime, if
any, did he commit? Why? (2002 BAR)
A: A committed the crime of Qualified Theft because he
took the goods on the occasion of and taking advantage of
the fire which broke out in the department store. The
occasion of a calamity such as fire, when the theft was
committed, qualifies the crime under Art. 310 of the RPC,
as amended. (UPLC Suggested Answers)
Q: A is the driver of B’s Mercedez Benz car. When B
was on a trip to Paris, A used the car for a joy ride with
C whom he is courting. Unfortunately, A met an
accident. Upon his return, B came to know about the
unauthorized use of the car and sued A for Qualified
Theft. B alleged that A took and used the car with
intent to gain as he derived some benefit or
satisfaction from its use. On the other hand, A argued
that he has no intent of making himself the owner of
the car as he in fact returned it to the garage after the
joy ride. What crime/s, if any, were committed?
Explain. (2016 BAR)
A: The crime committed by A is Carnapping. The unlawful
taking of motor vehicles is now covered by the Anti-
Carnapping Law (RA 6539, as amended) and not by the
provisions on qualified theft or robbery. (People v.
Bustinera, G.R. No. 148233, 08 June 2004) The concept of
carnapping is the same as that of robbery and theft. Hence,
rules applicable to theft or robbery are also applicable to
carnapping. (People v. Asamuddin, G.R. No. 213913, 02
Sept. 2015) In theft, unlawful taking should be understood
within the Spanish concept of apoderamiento. In order to
constitute apoderamiento, the physical taking must be
coupled with the intent to appropriate the object, which
means intent to deprive the lawful owner of the thing,
whether permanently or temporarily. (People v.
Valenzuela, G.R. No. 160188, 21 June 2007)
In this case, A took the car without the consent of B with
intent to temporarily deprive him of the car. Although the
taking was “temporary” and for a “joy ride”, the Supreme
Court in People v. Bustinera (supra), sustains as the better
view which holds that when a person, either with the
object of going to a certain place, or learning how to drive,
or enjoying a free ride, takes possession of a vehicle
belonging to another, without the consent of its owner, he
is guilty of theft because by taking possession of the
personal property belonging to another and using it, his
intent to gain is evident since he derives therefrom utility,
satisfaction, enjoyment and pleasure. (UPLC Suggested
Answers)
Q: Domingo is the caretaker of two (2) cows and two
(2) horses owned by Hannibal. Hannibal told Domingo
to lend the cows to Tristan on the condition that the
latter will give a goat to the former when the cows are
returned. Instead, Tristan sold the cows and pocketed
the money. Due to the neglect of Domingo, one of the
horses was stolen. Knowing that he will be blamed for
the loss, Domingo slaughtered the other horse, got the
meat, and sold it to Pastor. He later reported to
Hannibal that the two horses were stolen.
What crime/s, if any, were committed by Domingo?
Explain. (2016 BAR)
A: Domingo is liable for Qualified Theft. Although Tristan
received the horse with the consent of the owner,
Hannibal, his possession is merely physical or de facto
since the former is the employee of the latter. Slaughtering
the horse, which he physically possessed, and selling its
meat to Pastor shall be considered as taking without the
consent of the owner with intent to gain, which constitutes
theft. (Balerta v. People, G.R. No. 205144 26 Nov. 2014)
Since the horse is accessible to him, the theft is qualified
by the circumstances of abuse of confidence. (Yangco v.
People, G.R. No. 209373, 30 July 2014)
Further, Domingo committed an act in violation of the
Anti-Cattle Rustling Law (P.D. No. 533). Cattle rustling is
the taking away by any means, method or scheme, without
the consent of the owner/raiser of large cattle, which
includes cows and horses, whether or not for profit or
gain, or whether committed with or without violence
against or intimidation or intimidation of any person or
force upon things. It includes the killing of large cattle, or
taking its meat or hide without the consent of the
owner/raiser. (UPLC Suggested Answers)
Q: A group of homeless and destitute persons invaded
and occupied the houses built by the National Housing
Authority (NHA) for certain military personnel. To
gain entry to the houses, the group intimidated the
security guards posted at the entrance gate with the
firearms they were carrying and destroyed the
padlocks of the doors of the houses with the use of
crowbars and hammers. They claimed that they would
occupy the houses and live therein because the houses
were idle, and they were entitled to free housing from
the government.For the reason that the houses were already awarded
to military personnel who have been found to have
fully complied with the requirements for the award
thereof, NHA demanded the group to vacate within ten
(10) days from notice the houses they occupied and
were still occupying. Despite the lapse of the deadline,
the group refused to vacate the houses in question.
What is the criminal liability of the members of the
group, if any, for their actions? (2018 BAR)
A: The members of the group who, by means of violence
against or intimidation, shall take possession of any real
property or shall usurp any real rights in property
belonging to another, is criminally liable under Art. 312 of
the RPC or Occupation of Real Property or Usurpation of
Real Rights in Property. In addition, they may also be
charged with other crimes resulting from their acts of
violence. (UPLC Suggested Answers)
Q: Teresita is the owner of a two-hectare land in
Bulacan which she planted to rice and corn. Upon her
arrival from a three-month vacation in the United
States, she was surprised to discover that her land had
been taken over by Manuel and Teofilo who forcibly
evicted her tenant-caretaker Juliana, after threatening
to kill the latter if she would resist their taking of the
land. Thereafter, Manuel and Teofilo plowed,
cultivated and appropriated the harvest for
themselves to the exclusion of Teresita. (1998 BAR)
(a) What crime or crimes did Manuel and Teofilo
commit? Explain.
(b) Suppose Manuel and Teofilo killed Juliana
when the latter refused to surrender
possession of the land, what crime or crimes
did the two commit? Explain.
(a) Manuel and Teofilo committed the crime of Usurpation
of Real Rights under Art. 312 of the RPC for employing
violence against or intimidation of persons. The threats to
kill employed by them in forcibly entering the land is the
means of committing the crime and therefore absorbed in
the felony, unless the intimidation resulted in a more
serious felony.
(b) The crime would still be Usurpation of Real Rights
under Art. 312, RPC, even if the said offenders killed the
caretaker because the killing is the violence against
persons which is the means for committing the crime and
as such, determinative only. However, this gives way to
the proviso that the penalty provided for therein is in
addition to the penalty incurred in the acts of violence
(murder or homicide) executed by them. The crime is
similar to a robbery where a killing is committed by
reason thereof, giving rise only to one indivisible offense,
plus the fine mentioned therein. (UPLC Suggested Answers)
Q: Jorge is the owner of 10 hectares of land in the
foothills which he planted with lanzones. On his last
visit there, he was shocked to discover that his land
had been taken over by a group of 15 families whose
members had forcibly driven away his caretaker, had
appropriated the fruits for themselves, and were not
threatening to kill him should he try to eject them.
What crime should Jorge charge these 15 families?
Explain. (1988 BAR)
A: Jorge can charge the 15 families of 2 separate crimes
namely:
(a) Violation of Art. 282, Grave threats x x x; and
(b) Violation of Art. 312 which provides that: “Occupation
of real property or usurpation of real rights in
property. – Any person who, by means of violence
against or intimidation of persons, shall take
possession of any real property or shall usurp any real
rights in property belonging to another, in addition to
the penalty incurred for the acts of violence executed
by him, shall be punished by a fine…” (UPLC Suggested
Answers)
Q: What crime is committed by a capataz who enrolls
two fictitious names in the payroll and collects their
supposed daily wages every payday? (2017 BAR)
A: The crime committed is Estafa through Falsification of
Public Documents. A capataz is a foreman for the
government and since the falsification of the public
document is committed as a means to commit estafa, the
proper charge is Estafa through Falsification of Public
Documents. (UPLC Suggested Answers)
Q: Domingo is the caretaker of two (2) cows and two
(2) horses owned by Hannibal. Hannibal told Domingo
to lend the cows to Tristan on the condition that the
latter will give a goat to the former when the cows are
returned. Instead, Tristan sold the cows and pocketed
the money. Due to the neglect of Domingo, one of the
horses was stolen. Knowing that he will be blamed for
the loss, Domingo slaughtered the other horse, got the
meat, and sold it to Pastor. He later reported to
Hannibal that the two horses were stolen. (2016 BAR)
(a) What crime or crimes, if any, did Tristan
commit? Explain.
(a) Tristan is liable for Estafa through Misappropriation
under Art. 315 of RPC. Their transaction is a
commodatum. He received the cows with the duty to
return the same thing deposited and acquired legal or
juridical possession. Selling the cows as if he owned it
constitutes misappropriation or conversion within the
contemplation of Art. 315. (UPLC Suggested Answers)
Q: In Aug. 2018, B entered a contract with S for the
purchase of the latter’s second-hand car in the amount
of P400,000.00 payable in two (2) equal monthly
installments. Simultaneously with the signing of the
contract and S’s turnover of the car keys, B executed,
issued, and delivered two (2) post-dated checks, all
payable to S, with the assurances that they will be
honored on their respective maturity dates.
However, all two (2) checks were dishonored for
being drawn against insufficient funds. Consequently,
notices therefore were duly issued to and received by
B, but this notwithstanding, no payment
arrangements were made by him. Further, upon S’s
investigation, it was uncovered that B’s checking
account had only P50,000.00 when it was opened in
June 2018 and no further deposits were made after
that. S also found out that B knew fully well of such
circumstance at the time he issued the two (2) checks.
What crime/s should B be charges with and for how
many counts? Explain. (2019, 2018 BAR)
A: B should be charged with 1 count of Estafa and 2 counts
of violation of B.P. 22. Under Art. 315, par. 2(d) of the RPC,
estafa by postdating a check or issuing a check in payment
of an obligation is committed when: (a) the offender postdated
a check, or issued a check in payment of an
obligation; and (b) such postdating or issuing a check was
done when the offender had no funds in the bank, or his
funds deposited therein were not sufficient to cover the
amount of the check. Here, B’s act of postdating checks in
payment of an obligation was the efficient cause of the
defraudation. Postdating the checks was committed prior
to or simultaneously with the commission of the fraud.
B should also be charged with two (2) counts of violation
of B.P. 22 or the Bouncing Checks Law. B.P. 22 may be
violated by making or drawing and issuing any check to
apply on account or for value, knowing at the time of issue
that he does not have sufficient funds in or credit with the
drawee bank for the payment of such check, which check
is subsequently dishonored for insufficiency of funds or
credit, or would have been dishonored for the same
reason had not the drawer, without any valid reason,
ordered the bank to stop payment. Here, all the elements
of the offense are present. B issued two (2) checks, which
was subsequently dishonored by the drawee bank for
insufficiency of funds. The gravamen of B.P. 22 is the
issuance of the check, thus, the issuance of each bouncing
check constitutes as one count of the offense.
While a BP 22 case and an estafa case may be rooted from
an identical set of facts, they nevertheless present
different causes of action, which, under the law, are
considered “separate, distinct, and independent” from
each other. (Rimando v. Aldaba, G.R. No. 203583, 13 Oct.
2014) (UPLC Suggested Answers)
Q: Val, a Nigerian, set up a perfume business in the
Philippines. The investors would buy the raw
materials at a low price from Val. The raw materials
consisted of powders, which the investors would mix
with water and let stand until a gel was formed. Val
made a written commitment to the investors that he
would buy back the gel at a higher price, thus assuring
the investors of a neat profit. When the amounts to be
paid by Val to the investors reached millions of pesos,
he sold all the equipment of his perfume business,
absconded with the money, and is nowhere to be
found. What crime or crimes were committed, if any?
Explain. (2016 BAR)
A: The crime committed is estafa through false pretenses
(Art. 315 (2)(a)). Val defrauded the investors by falsely
pretending to possess business or imaginary transactions.
The fact that he sold all the equipment of his perfume
business, and absconded with the money when the
amounts to be paid by him to the investors reached
millions of pesos shows that the transaction or his
business is imaginary, and he defrauded the victims.
(UPLC Suggested Answers)
Q: A sold a washing machine to B on credit with the
understanding that B could return the appliance
within two weeks if after testing the same, B decided
not to buy it. Two weeks lapsed without B returning
the appliance. A found out that B had sold the washing
machine to a third party. Is B liable for estafa? Why?
(2002 BAR)
A: NO. B is not liable for estafa because he is not just an
entrustee of the washing machine which he sold; he is the
owner thereof by virtue of the sale of the washing machine
to him. The sale being on credit, B as buyer is only liable
for the unpaid price of the washing machine; his
obligation is only a civil obligation. There is no felonious
misappropriation that could constitute estafa. (UPLC
Suggested Answers)
Q: On March 31, 1995, Orpheus Financing Corp.
received from Maricar the sum of P500,000 as money
market placement for sixty days at fifteen (15)
percent interest, and the President of said Corp.
issued a check covering the amount including the
interest due thereon, postdated May 30, 1995. On the
maturity date, however, Orpheus Financing Corp.
failed to deliver back Maricar’s money placement with
the corresponding interest earned, notwithstanding
repeated demands upon said Corporation to comply
with its commitment. Did the President of Orpheus
Financing Corporation incur any criminal liability for
estafa for reason of the non-payment of the money
market placement? Explain. (1996 BAR)
A: NO. The President of the financing corporation does not
incur criminal liability for estafa because a money market
transaction partakes of the nature of a loan, such that nonpayment
thereof would not give rise to estafa through misappropriation or conversion. In money market
placement, there is transfer of ownership of the money to
be invested and therefore the liability for its return is civil
in nature. (Sesbreño v. CA, G.R. No. 84096, 26 Jan. 1995)
(UPLC Suggested Answers)
Q: Mr. A has a long-standing feud with Mr. B. As
payback for Mr. B’s numerous transgressions against
him, Mr. A planned to bum down Mr. B’s rest house.
One night, Mr. A went to the rest house and started
pouring gasoline on its walls. However, just as Mr. A
had lit the match for burning, he was discovered by
Mr. B’s caretaker, Ms. C, and was consequently
prevented from setting the rest house on fire. Mr. A
was then charged with Frustrated Arson. (2019 BAR)
(a) Is the charge of Frustrated Arson proper?
Explain.
(b) Assuming that Mr. A successfully burned down
Mr. B’s rest house, and as a result, Ms. C was
trapped therein and was subsequently killed
in the fire, what crime/s did Mr. A commit?
Explain.
(a) NO, the proper charge is Attempted Arson. Under Art. 6
of the RPC, there is an attempt when the offender
commences the commission of a felony directly by overt
acts and does not perform all the acts of execution that
should produce the felony by reason of some cause or
accident other than his own spontaneous desistance. Here,
Mr. A commenced the commission of arson by pouring
gasoline on the house and lighting a match. However, he
did not perform all the acts of execution which includes
setting the rest house on fire. Thus, Mr. A should only be
liable for Attempted Arson.
(b) In cases where both burning and death occur, in order
to determine what crime was committed, there is a need
to ascertain the main objective of the malefactor: (a) if the
main objective is the burning of the building or edifice but
death results by reason or on occasion of arson, the crime
is simply arson, and the resulting homicide is absorbed;
(b) if the main objective is to kill a particular person who
may be in the building or edifice, when fire is resorted to
as a means to accomplish such goal, the crime committed
is murder only; and (c) if the objective is to kill a
particular person, and in fact the offender has already
done so, but the fire is resorted to as a means to cover up
the killing, then there are two separate and distinct crimes
committed – homicide/murder and arson. (People v. Sota
and Gadjadli, G.R. No. 203121, 29 Nov. 2017) Here the main purpose was to burn the house and the
death of Mr. C was only incidental, hence, arson was
committed, and the homicide is absorbed. (UPLC
Suggested Answers)
Q: Senio planned to burn Bal’s house. One evening,
during a drinking spree at his house, Senio told his
friends what he intended to do and even showed them
the gasoline in cans that he would use for the purpose.
Carlo, a common friend of Senio and Bal, was present
at the drinking spree. He was still sober when Senio
told them his plans. Before going home, Carlo warned
Bal that Senio would burn his house and had already
bought gasoline that would be used for the purpose.
Bal reported the matter to the police authorities.
Meanwhile, Senio went to Bal’s house and proceeded
to pour gasoline around the walls of the house and it
was at that point when he was caught by the police.
What crime did Senio commit, if any? Explain. (2015
BAR)
A: Senio is liable for Attempted Arson. He manifested
before his intention to burn the house of Bal to his friends.
He then performed the act of pouring gasoline around the
walls of the house to execute his criminal design to
commit arson. This is not just a preparatory act, because it
already ceased to be equivocal and revealed a clear
intention to burn the house. In sum, he already
commenced the commission of the crime of arson directly
by overt acts but he did not perform all acts to execute his
criminal design to commit arson by setting the house on
fire due to a cause other than his spontaneous desistance,
and that is, having been caught by the police. (UPLC
Suggested Answers)
Q: One early evening, there was a fight between Eddie
Gutierrez and Mario Cortez. Later that evening, at
about 11 o’clock, Eddie passed by the house of Mario
carrying a plastic bag containing gasoline, threw the
bag at the house of Mario who was inside the house
watching television, and then lit it. The front wall of
the house started blazing and some neighbors yelled
and shouted. Forthwith, Mario poured water on the
burning portion of the house. Neighbors also rushed
in to help put the fire under control before any great
damage could be inflicted and before the flames have
extensively spread. Only a portion of the house was
burned. Discuss Eddie’s liability. (2000 BAR)
A: Eddie is liable for Destructive Arson in the
consummated stage. It is destructive arson because fire
was resorted to in destroying the house of Mario which is
an inhabited house or dwelling. The arson is
consummated because the house was in fact already
burned although not totally. In arson, it is not required
that the premises be totally burned for the crime to be
consummated. It is enough that the premises suffer
destruction by burning. (UPLC Suggested Answers)
Q: A is married. He has a paramour with whom he had
sexual relations on a more or less regular basis. They
meet at least once a week in hotels, motels, and other
places where they can be alone. Is A guilty of any
crime? Why? (2002 BAR)
A: A is guilty of the crime of concubinage by having sexual
intercourse under scandalous circumstances, with a
woman who is not his wife.
Having sexual relations on a more or less regular basis in
hotels, motels, and other places may be considered
scandalous circumstances that offends public conscience,
giving rise to criticism and general protest, such acts being
imprudent and wanton and setting a bad example. (People
v. Santos, 86 SCRA 705)
ALTERNATIVE ANSWER:
A is not guilty of any crime because a married man does
not incur the crime of concubinage by merely having a
paramour, unless under scandalous circumstances, or he
keeps her in the conjugal dwelling as a mistress or
cohabits with her in any other place. His weekly meetings
with his paramour do not per se constitute scandalous
circumstance. (UPLC Suggested Answers)
Q: A, a married woman, had sexual intercourse with a
man who was not her husband. The man did not know
she was married. What crime, if any, did each of them
commit? Why? (2002 BAR)
A: A, the married woman, committed the crime of adultery
under Art. 333 of the RPC, as amended, for having sexual
intercourse with a man not her husband while her
marriage is still subsisting. But the man who had carnal
knowledge of her, not knowing her to be married, shall not
be liable for adultery. (UPLC Suggested Answers)
Q: Mr. O, a 75-year-old retiree who has been a
widower for the last ten (10) years, believed that, at
past 70, he is licensed to engage in voyeurism to
satisfy his lustful desires. If not peeping into his
neighbors’ room through his powerful single-cylinder
telescope, he would trail young and shapely girls
along the hallways and corridors of shopping malls.
While going up the escalator, he stayed a step behind a
mini-skirted, 20-year-old girl, and in the heat of the
moment, put his hand on her left buttock and
massaged it. The girl screamed and hollered for help.
Mr. O was thus apprehended and charged with Acts of
Lasciviousness under Art. 336 of the RPC. Mr. O’s
counsel, however, claimed that Mr. O should only be
charged with the crime of Unjust Vexation.
Is the contention of Mr. O’s counsel tenable? Explain.
(2019 BAR)
A: NO, the contention of Mr. O’s counsel is untenable.
Under Art. 366 of the RPC, the elements of Acts of
Lasciviousness are:
(1) That the offender commits any act of lasciviousness
or lewdness;
(2) That the lascivious act is committed against a person
of either sex; and
(3) That it is done under any of the following
circumstances:
(a) By using force or intimidation;
(b) When the offended party is deprived of reason
or otherwise unconscious;
(c) By means of fraudulent machination or grave
abuse of authority; or
(d) When the offended party is under 12 years of
age or is demented.
Lascivious conduct is defined as “the intentional touching,
either directly or through clothing, of the genitalia, anus,
groin, breast, inner thigh, or buttock, or the introduction
of any object into the genitalia, anus or mouth, of any
person, whether of the same or opposite sex, with an
intent to abuse , humiliate, harass, degrade, or arouse or
gratify the sexual desire of any person, bestiality,
masturbation, lascivious exhibition of the genitals or pubic
area of a person.” (Orsos v. People, G.R. No. 214673, 20 Nov.
2017)
Here, when Mr. O touched the buttocks of the offended
party, he was animated with lewdness; thus, acts of
lasciviousness was committed.
ALTERNATIVE ANSWER: YES, the contention of Mr. O’s
counsel is tenable. Mere touching or massaging the
buttocks does not clearly indicate sexual design. To be
liable under acts of lasciviousness, the act must be one
that shows perversity to gratify sexual arousal or desire.
Circumstances in the problem fell short to qualify as one.
Thus, unjust vexation is proper where it only brought
annoyance and irritation to the woman. (UPLC Suggested
Answers)
Q: At the Maligaya Disco Club, Leoncio and Evelyn
were intimately dancing a very seductive dance
number. While gyrating with their bodies, Leoncio
dipped his private parts in Evelyn’s buttocks.
Incensed, Evelyn protested, but Leoncio continued
and tightly embraced her. (2009 BAR)
(a) What crime or crimes, if any, did Leoncio
commit? Explain.
(b) Would your answer be the same if, even after
the music had stopped, Leoncio continued to
dance dirty, rubbing his private parts on
Evelyn’s buttocks? Explain.
(a) Leoncio committed the crime of unjust vexation only
because the act was done in the course of dancing. The act
of dipping his private parts in Evelyn’s buttocks during a
very seductive dance, although offensive to Evelyn, may be
viewed as part of a dirty dancing. Lewd intent cannot
simply be presumed from the act of dirty dancing. The fact
that the act was perpetrated in a public place and with an
audience, negates lewd designs or lascivious intent, which
is essential in the crime of acts of lasciviousness.
(b) NO, the crime would then be acts of lasciviousness.
That the music for dancing had already stopped, puts an
end to any pretense of dancing by Leoncio. His continued
dirty acts absent the dancing as there was no music
anymore is patently lewd and lascivious. More so, Evelyn
already protested Leoncio’s lewd acts in the course of
dancing. So where the dance ended, Leoncio’s continued
dirty acts cannot be veiled as still part of dancing. (UPLC
Suggested Answers)
Q: What are the three (3) classes of offender in the
crime of qualified seduction? Give an example of each.
A:
1.) Those who exercise moral influence over the
victim, such as a priest who acts as spiritual
adviser of the victim, or a teacher in the school
where the victim is enrolled;
2.) A brother or ascendant by consanguinity of the
victim, such as her uncle; and Those who are regarded as “domestic” in relation to the
victim, enjoying the confidence and intimacy shared by
members of the same household, such as household
helpers and boarders living under the same roof and with
same household as the victim. (UPLC Suggested Answers)
Q: A childless couple, A and B, wanted to have a child
they could call their own. C, an unwed mother, sold
her newborn baby to them. Thereafter, A and B caused
their names to be stated in the birth certificate of the
child as his parents. This was done in connivance with
the doctor who assisted in the delivery of C. What are
the criminal liabilities, if any, of the couple A and B, C,
and the doctor? (2002 BAR)
A: The couple A and B, and the doctor shall be liable for
the crime of Simulation of Birth, penalized under Art. 347
of the RPC, as amended. The act of making it appear in the
birth certificate of a child that the persons named therein
are the parents of the child when they are not really the
biological parents of said child constitutes the crime of
simulation of birth.
While C, the unwed mother, is criminally liable for “child
trafficking,” a violation of Art. IV, Sec. 7 of R.A. No. 7610.
The law punishes inter alia the act of buying and selling of
a child.ALTERNATIVE ANSWER: The couple A and B, the unwed
mother C, and the doctor being all involved in the
simulation of birth of the newborn child, violate R.A. No.
7610. Their acts constitute child trafficking which are
penalized under Art. IV of said law. (UPLC Suggested
Answers)
NOTE: In Pulido v. People, (G.R. No. 220149, 27 July 2021, J.
Hernando), the Supreme Court abandoned its earlier
pronouncements and held that “a judicial declaration of
absolute nullity is not necessary to prove a void ab initio
prior and subsequent marriages in a bigamy case.
Consequently, a judicial declaration of absolute nullity in
the first and/or second marriages presented by the
accused in the prosecution for bigamy is a valid defense,
irrespective of the time within which they are secured.”
Q:
(a) What are the elements of the crime of bigamy?
(2012 BAR)
(b) If you were the judge in a bigamy case where the
defense was able to prove that the first
marriage was null and void or a nullity, would
you render a judgment of conviction or
acquittal? Explain your answer. (2012 BAR)
(c) Assuming the existence of the first marriage
when accused contracted the second marriage
and the subsequent judicial declaration of
nullity of the second marriage on the ground of
psychological incapacity, would you render a
judgment of conviction or acquittal? Explain
your answer. (2012 BAR)
(a) In Marbella-Bobis v. Bobis (G.R. No. 138509, 31 July
2000), the Supreme Court laid down the elements of
bigamy thus: (1) the offender has been legally married; (2)
the first marriage has not been legally dissolved, or in case
his or her spouse is absent, the absent spouse has not been
judicially declared presumptively dead; (3) he contracts a
subsequent marriage; and (4) the subsequent marriage
would not have been valid had it not been for the
existence of the first.
(b) I would render a judgment of acquittal. A void ab initio
marriage is a valid defense in the prosecution for bigamy
even without a judicial declaration of absolute nullity.
(Pulido v. People, G.R. No. 220149, 27 July 2021, J.
Hernando)
(c) I would render a judgment of acquittal. In the case of
Pulido v. People (G.R. No. 220149, 27 July 2021, J.
Hernando), the SC held that a judicial declaration of
absolute nullity is not necessary to prove a void ab initio
prior and subsequent marriages in a bigamy case.
Consequently, a judicial declaration of absolute nullity ofthe first and/or second marriages presented by the
accused in the prosecution for bigamy is a valid defense,
irrespective of the time within which they are secured.
The aforesaid conclusion is anchored on and justified by
the retroactive effects of a void ab initio marriage, the
legislative intent of Art. 40 of the Family Code and the
fundamental rules of construction governing penal laws.
The Family Code specifically provides that certain
marriages are considered void ab initio namely, Arts. 35,
36 (on Psychological Incapacity), 37, 38, 44 and 53. These
marriages are void from the beginning. To all legal intents
and purposes, the void ab initio marriage does not exist
and the parties thereto, under the lens of the law, were
never married. While Art. 40 of the Family Code provides
that there must be a judicial declaration of the nullity of a
previous marriage, the SC ruled that said requirement
under Art. 40 is merely for purposes of remarriage and
does not affect the accused’s right to collaterally attack the
validity of the void ab initio marriage in criminal
prosecution for bigamy. (Pulido v. People G.R. No. 220149,
27 July 2021, J. Hernando)
Q: CBP is legally married to OEM. Without obtaining a
marriage license, CBP contracted a second marriage to
RST. Is CBP liable for bigamy? Reason briefly. (2004
BAR)
A: Whether CBP could be held liable for bigamy or not,
depends on whether the second marriage is invalid or
valid even without a marriage license. Although as a
general rule, marriages solemnized without license are
null and void ab initio, there are marriages exempted from
license requirement under Chapter 2, Title 1 of the Family
Code, such as in Art. 27 which is a marriage in articulo
mortis. If the second marriage was valid even without a
marriage license, then CBP would be liable for bigamy.
Otherwise, CBP is not liable for bigamy but for Illegal
Marriage in Art. 350 for the RPC, specifically designated as
“Marriage Contracted Against Provisions of Laws.” (UPLC
Suggested Answers)
Q: Joe and Marcy were married in Batanes in 1955.
After two years, Joe left Marcy and settled in
Mindanao where he later met and married Linda on
12 June 1960. The second marriage was registered in
the civil registry of Davao City three days after its
celebration. On 10 Oct. 1975 Marcy who remained in
Batanes discovered the marriage of Joe to Linda. On
01 Mar. 1976 Marcy filed a complaint for bigamy
against Joe.
The crime of bigamy prescribed in fifteen years
computed from the day the crime is discovered by the
offended party, the authorities or their agents. Joe
raised the defense of prescription of the crime, more
than 15 years having elapsed from the celebration of
the bigamous marriage up to the filing of Marcy’scomplaint. He contended that the registration of his
second marriage in the civil registry of Davao City was
constructive notice to the whole world of the
celebration thereof thus binding upon Marcy. Has the
crime of bigamy charged against Joe already
prescribed? (1995 BAR)
A: NO, the prescriptive period for the crime of bigamy is
computed from the time the crime was discovered by the
offended party, the authorities or their agents. The
principle of constructive notice which ordinarily applies to
land or property disputes should not be applied to the
crime of bigamy, as marriage is not property. Thus, when
Marcy filed a complaint for bigamy on 07 Mar. 1976, it was
well within the reglementary period as it was barely a few
months from the time of discovery on Oct. 10, 1975.
(Sermonia v. CA, G.R. No. 109454, 14 June 1994) (UPLC
Suggested Answers)
Q: During a seminar workshop attended by
government employees from the Bureau of Customs
and Bureau of Internal Revenue, A, the speaker, in the
course of his lecture, lamented the fact that a great
majority of those serving in said agencies were utterly
dishonest and corrupt.
The following morning, the whole group of employees
in the two bureaus who attended the seminar, as
complainants, filed a criminal complaint against A for
uttering what the group claimed to be defamatory
statements of the lecturer.
In court, A filed a Motion to Quash the Information,
reciting fully the above facts, on the ground that no
crime was committed. If you were the judge, how
would you resolve the motion? (2003 BAR)
A: I would grant the Motion to Quash on the ground that
the facts charged do not constitute an offense, since there
is no definite person or persons dishonored.
The crime of libel or slander is a crime against honor such
that the person/s dishonored must be identifiable even by
innuendoes. Otherwise, the crime against honor is not
committed. Moreover, A was not making a malicious
imputation, but merely stating an opinion; he was
delivering a lecture with no malice at all during a seminar
workshop. Malice being inherently absent in the
utterance, the statement is not actionable as defamatory.
(UPLC Suggested Answers)
Q: Because of a pendency of a labor dispute, two (2)
belligerent labor unions had a confrontation in a
picket line during which the President and the
Secretary of one union shouted to the members and
officers of the rival union composed of men and
women, the following: “Mga tuta, mga walang bayag,
mga kabit ng Intsik, mga tuta, mga segunda mano.”
Are the President and the Secretary of said union
liable for oral defamation/slander? (1993 BAR)
A: NO. The President and the Secretary of the Union are
not liable for oral defamation or slander because there is
no identity of the offended party. The individual defamed
or slandered was not singled out. (People v. Uy Tioco, G.R.
Nos. 9986 & 9891, 22 Dec. 1915)
Q: Mr. L is a newspaper reporter who writes about
news items concerning the judiciary. Mr. L believed
that members of the judiciary can be criticized and
exposed for the prohibited acts that they commit by
virtue of the public nature of their offices. Upon
receiving numerous complaints from private citizens,
Mr. L released a scathing newspaper expose involving
Judge G and his alleged acts constituting graft and
corruption. Consequently, Mr. L was charged with the
crime of Libel.
In response, Mr. L contended that truth is a valid
defense in Libel and in this relation, claimed that he
was only exposing the truth regarding Judge G’s
misdeeds. Further, Mr. L contended that in any event,
his expose on Judge G is based on the complaints he
received from private citizens, and as such, should be
deemed as a mere fair commentary on a matter of
public interest. Are the contentions of Mr. L tenable?
Explain. (2019 BAR)
A: YES. Mr. L’s contention that truth is a valid defense in
libel is tenable. Under Art. 361 of the RPC, if the
defamatory statement is made against a public official
with respect to the discharge of his official duties and
functions, and the truth of the allegations is shown, the
accused will be entitled to an acquittal even though he
does not prove that the imputation was published with
good motives and for justifiable ends. (Lopez v. People, G.R.
No. 172203, 14 Feb. 2011)
Q: A is the president of the corporate publisher of the
daily tabloid, Bulgar; B is the managing editor; and C is
the author/writer. In his column, Direct Hit, C wrote
about X, the head examiner of the BIR-RDO Manila as
follows:“Itong si X ay talagang BUWAYA kaya ang logo ng
Lacoste T shirt niya ay napaka suwapang na buwaya.
Ang nickname niya ay si Atty. Buwaya. Ang PR niya ay
90% sa bayad ng taxpayer at ang para sa RP ay 10%
lang. Kaya ang baba ng collection ng RDO niya.
Masyadong magnanakaw si X at dapat tanggalin itong
bundat na bundat na buwaya na ito at napakalaki na
ng kurakot.”
A, B, and C were charged with libel before the RTC of
Manila. The three (3) defendants argued that the
article is within the ambit of qualified privileged
communication; that there is no malice in law and in
fact; and that defamatory comments on the acts of
public officials which are related to the discharge of
their official duties do not constitute libel.
Was the crime of libel committed? If so, are A, B, and C
all liable for the crime? Explain. (2016 BAR)
A: YES, the crime of libel is committed. Fair comment on
acts of public officers related to the discharge of their
duties is a qualified privileged communication, hence, the
accused can still be held liable for libel if actual malice is
shown. In fair comment, actual malice can be established
by showing that comment was made with knowledge that
it was false or with reckless disregard of whether it was
false or not. (Guingguing v. The Honorable CA, G.R. No.
128959, 30 Sept. 2005) Journalists bear the burden of
writing responsibly when practicing their profession, even
when writing about public figures or matters of public
interest.
The report made by C describing a lawyer in the Bureau of
Customs as corrupt cannot be considered as “fair” and
“true” since he did not do research before making his
allegations, and it has been shown that these allegations
were baseless. The articles are not “fair and true reports,”
but merely wild accusations. He has written and published
the subject articles with reckless disregard of whether the
same were false or not. (Erwin Tulfo v. People, G.R. No.
161032, 16 Sept. 2008)
A, president of the publishing company, B, managing
editor, and C, writer of the defamatory articles, are all
liable for libel. Under Art. 360 of the RPC, the publisher,
and editor of newspaper, shall be responsible for the
defamations contained therein to the same extent. The law
makes the publisher and editor liable for libel as if they
were the author. (Tulfo v. People, supra) (UPLC Suggested
Answers)
Q: A was nominated Secretary of a Department in the
Executive Branch of the government. His nomination
was thereafter submitted to the Commission on
Appointments for confirmation. While the
Commission was considering the nomination, a group
of concerned citizens caused to be published in the
newspapers a full-page statement objecting to A’s
appointment. They alleged that A was a drug dependent, that he had several mistresses, and that he
was corrupt, having accepted bribes or favors from
parties transacting business in his previous office, and
therefore he was unfit for the position to which he had
been nominated. As a result of the publication, the
nomination was not confirmed by the Commission on
Appointments. The official sued the concerned
citizens and the newspapers for libel and damages on
account of his non-confirmation. How will you decide
the case? (2002 BAR)
A: I will acquit the concerned citizens and the newspapers
involved from the crime of libel. One of the requisites of
libel is the existence of malice on the part of the accused.
In this case, the publication is made from a moral or social
duty. Thus, there is an absence of malice.
As a nominee for the public position of a Department
Secretary, A’s moral, mental, and physical fitness becomes
a public concern. The publication merely reflects on his
public character and image as a public official. Hence, the
act of publishing such criticisms is bereft of malice. (UPLC
Suggested Answers)
Q: After drinking a bottle of Jack Daniels, Jonjon drove
his BMW sports car at high speed, rammed into a
group of crossing pedestrians, and hit a traffic light
post. The incident caused the death of one (1)
pedestrian, serious injuries to three (3) others, and
the destruction of the traffic light post. If you were the
prosecutor, what would you charge Jonjon? (2013
BAR)
A. Homicide with serious physical injuries
through simple negligence.
B. Damage to property, serious physical injuries
and homicide through reckless negligence.
C. Simple negligence resulting in damage to
property, serious physical injuries and
homicide.
D. Reckless imprudence resulting in homicide,
serious physical injuries and damage to
property.
A: D. Reckless imprudence resulting in homicide, serious
physical injuries, and damage to property.
Q: AB was driving a van along a highway. Because of
her recklessness, the van hit a car which had already
entered the intersection. As a result, CD who was
driving the car suffered physical injuries, while
damage to his car amounted to P8,500.00. What is the
proper charge against AB?
A. AB should be charged with complex crime of
reckless imprudence resulting in damage to
property with slight physical injuries.
B. AB should be charged with reckless imprudence
resulting in slight physical injuries and reckless
imprudence resulting in damage to property.
C. AB should be charged with complex crime of slight
physical injuries with damage to property.
D. AB should be charged with slight physical injuries
and reckless imprudence resulting in damage to
property. (2012 BAR)
A: A. Reckless imprudence under Art. 365 is a single
quasi-offense by itself and not merely a means to commit
other crimes. Hence, conviction or acquittal of such quasioffense
bars subsequent prosecution for the same quasioffense,
regardless of its various consequences. Thus, AB
may be convicted of one crime, either Reckless
Imprudence Resulting in Slight Physical Injuries or
Reckless Imprudence Resulting in Damage to Property.
(Ivler v. Modesto-San Pedro, GR No. 172716, 17 Nov. 2010)
(UPLC Suggested Answers)
Q: Olimpio caught a cold and was running a fever. His
doctor prescribed paracetamol. Olimpio went to a
drug store with the prescription, and the pharmacist
sold him three (3) tablets. Upon arriving home, he
took a tablet. One hour later, he had a seizure and
died. The autopsy showed that the tablet he had taken
was not paracetamol but a pill to which he was
allergic. The pharmacist was charged with murder. Is
the charge proper? If not, what should it be? Explain.
(2008 BAR)
A: The charge was improper. The pharmacist should be
charged with criminal negligence, or reckless imprudence
resulting in homicide, because there was no intent to kill
Olimpio. The accused inexcusably lacked precaution in
failing to dispense the proper medicine to the victim
which caused the latter’s death. (Art. 365, RPC) (UPLC
Suggested Answers)
Q. Eddie brought his son Randy to a local faith healer
known as “Mother Himala.” He was diagnosed by the
faith healer as being possessed by an evil spirit. Eddie
thereupon authorized the conduct of a “treatment”
calculated to drive the spirit from the boy’s body.
Unfortunately, the procedure conducted resulted in
the boy’s death.
The faith healer and three (3) others who were part of
the healing ritual were charged with murder and
convicted by the lower court. If you are appellate
court Justice, would you sustain the conviction upon
appeal? Explain your answer. (2007 BAR)
A: NO, the conviction of murder should not be sustained
because there was no intent kill. The intent of the accused,
on the contrary, is to treat Randy for his illness. However,
considering that proximate cause of Randy’s death is the
ritual, accused may be held criminally liable for Reckless
Imprudence Resulting in Homicide. (UPLC Suggested
Answers)
