LAST MINUTE REVIEWER IN CRIMINAL LAW

2018 BAR EXAMINATIONS

BY:

ATTY. SALVADOR N. MOYA II, LL.M.

Managing Partner, Moya Ablola Ebarle Law Firm
Lifetime Member, IBP, Bulacan Chapter
Member, Board of Directors, Philippine Trial Lawyers, Inc.
Member, Vanguard of the Philippine Constitution Inc.
Advance, Pre-Bar, Pre-week Reviewer and Mock Bar Examiner in
Remedial Law, UP Law Center
Pre-Bar Reviewer in Chair’s Cases (Criminal Law), Legal EDGE Review Center
Pre-week Reviewer in Criminal Law and Remedial Law, Magnificus Juris Reviews
and Seminars, Inc.
Bar Reviewer in Remedial Law, Powerhaus Review Center
Special Lecturer in Remedial Law, Villasis Law Center
Bar Reviewer in Criminal Law, Recoletos Law Center
Member, Expert Committee in Remedial Law, UP Law Center
MCLE Lecturer on Trial Advocacy
Author, The 2000 Rules of Criminal Procedure, Notes and Cases
Bar Notes and Cases in Criminal Law
The Revised Guidelines on Continuous Trial in Criminal Cases in Relation to
The 2000 Rules of Criminal Procedure
Bar Notes and Cases in Remedial Law
The Revised Rules of Evidence, Notes and Cases
The 1997 Rules of Civil Procedure As Amended, Notes and Cases (Vol. 1)
Provisional Remedies and Special Civil Actions, Notes and Cases (Vol. 2)
The Rules of Special Proceedings, Notes and Cases
Cross-Examination as a Science and Not an Art (The Contrarian System)
Professor, Tarlac State University College of Law in Remedial Law Review, Evidence,
Criminal Procedure, Election Law, Environmental Law, and Conflict of Laws
Professor, New Era University College of Law in Civil Procedure,
Criminal Procedure and Remedial Law Review
Professor, San Sebastian College-Recoletos, Institute of Law, Manila
in Criminal Law Review and Remedial Law Review
Professor, University of the East College of Law in Remedial Law Review
Professor, Bulacan State University College of Law in Remedial Law Review I
and Criminal Procedure
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-- BOOK I --

1. Article 4. Criminal liability.

Q. What is indispensable in order that a person could be held criminally liable for a
felony that is different from what he intended to commit?

A. In order that a person may be criminally liable for a felony different from what he
intended to commit, it is indispensable that:

(a) a felony was committed; and

(b) the wrong done to the aggrieved person be the direct consequence of the crime
committed by the perpetrator. (People vs. Sales, 658 SCRA 367, 3 October
2011.)

2. Article 8. Conspiracy and proposal to commit felony.

Q. When can there be conspiracy in the commission of a crime?

A. Conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. The essence of conspiracy is the unity of
action and purpose. Its elements, like the physical acts constituting the crime itself, must
be proved beyond reasonable doubt. When there is conspiracy, the act of one is the act of
all. (People vs. Sumilhig, 731 SCRA 102, 28 July 2014; People vs. Alawig, 706 SCRA
88, 18 September 2013; Quidet vs. People, 618 SCRA 1, 8 April 2010.)

Conspiracy can be inferred from and established by the acts of the accused
themselves when said acts point to a joint purpose and design, concerted action
and community of interests. However, in determining whether conspiracy exists, it is
not sufficient that the attack be joint and simultaneous for simultaneousness does not of
itself demonstrate the concurrence of will or unity of action and purpose which are the
bases of the responsibility of the assailants. What is determinative is proof establishing
that the accused were animated by one and the same purpose. (See also Ho Wai Pang vs.
People (659 SCRA 624, 19 October 2011)

Q. When can a person be considered as a conspirator?

A. In the case of Bug-atan vs. People (630 SCRA 537, 15 September 2010), the Supreme
Court held that: In conspiracy, proof of the agreement need not rest on direct evidence. 
Conspiracy may be deduced from the acts of the accused before, during and after
the commission of the crime which indubitably point to and are indicative of a
joint purpose, concert of action and community of interest.  To be a conspirator, one
need not participate in every detail of the execution nor take part in every act and may
not even know the exact part to be performed by the others in the execution of the
conspiracy. But once conspiracy is shown, the act of one is the act of all. (Castillo vs.
Prudentialife Plans, Inc., 720 SCRA 129, 26 March 2014.)
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Q. How is conspiracy proven?

A. Conspiracy need not be proved by direct evidence and may be inferred from the
conduct of the accused before, during and after the commission of the crime,
which are indicative of a joint purpose, concerted action and concurrence of
sentiments.  Conspiracy is present when one concurs with the criminal design of
another, indicated by the performance of an overt act leading to the crime committed. It
may be deduced from the mode and manner in which the offense was perpetrated.
(People vs. Agacer, 662 SCRA 461, 14 December 2011.)

Q. In case of doubt as to the existence of conspiracy, how will the court resolve it?

A. In Quidet vs. People, supra, the Supreme Court said that conspiracy must be proved as
clearly and convincingly as the commission of the offense itself for it is a facile device by
which an accused may be ensnared and kept within the penal fold. In case of reasonable
doubt as to its existence, the balance tips in favor of the milder form of criminal
liability as what is at stake is the accused’s liberty.

Q. If conspiracy was established, is it necessary to determine who among the

conspirators delivered the fatal blow against the victim?

A. No. Having established conspiracy, the assertion that each of them can only be made
liable for his own acts deserves no merit. Evidence as to who among the appellants
delivered the fatal blow is therefore no longer indispensable since in conspiracy, a
person may be convicted for the criminal act of another. In a conspiracy, the act of one is
deemed the act of all. (People vs. Agacer, supra.)

Q. In conspiracy, is the agreement of the parties before the commission of the crime
necessary to hold them liable as conspirators?

A. No. It is not required for conspiracy to exist that there be an agreement for an
appreciable period prior to the occurrence. It is sufficient that at the time of the
commission of the offense, the accused had the same purpose and were united in its
execution. Direct proof of such agreement is not necessary. It may be deduced from the
mode and manner in which the offense was perpetrated, or inferred from the acts of the
accused which point to a joint purpose and design, concerted action and community of
interest. (People vs. Alvarez, 748 SCRA 674, 2 February 2015; People vs.
Bustamante, 616 SCRA 203, 19 March 2010.)

3. Article 11. Justifying circumstances.

Q. What are the requisites for the justifying circumstance of self-defense?

A. To successfully invoke the justifying circumstance of self-defense, the following

requisites must be present:

(1) unlawful aggression;

(2) reasonable necessity of the means employed to prevent or repel

it;
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(3) lack of sufficient provocation on the part of the person defending

himself.

Unlawful aggression is the indispensable element of self-defense, for if no

unlawful aggression attributed to the victim is established, self-defense is
unavailing as there is nothing to repel. The unlawful aggression of the victim must
put the life and personal safety of the person defending himself in actual peril. A mere
threatening or intimidating attitude does not constitute unlawful aggression. (People
vs. Ramos, 702 SCRA 204, 24 July 2013; People vs. Concillado, 661 SCRA 363, 28
November 2011; People vs. Campos, 653 SCRA 99, 4 July 2011.)

Q. What are the elements of the justifying circumstance of Defense of Relative?

A. There are three elements, to wit:

(1) there was unlawful aggression on the part of the victim;

(2) there was reasonable necessity of the means employed to prevent or

repel it; and

(3) in case of provocation given by the person being attacked, the person
making defense had no part therein.

Like in the case of self-defense, unlawful aggression is also an indispensable

element in defense of relative. (People vs. Agacer, 662 SCRA 461, 14
December 2011.)

4. Article 12. Circumstances which exempt from criminal liability.

Q. What are the requisites in order to avail the exempting circumstance that the
accused acted under the impulse of an uncontrollable fear of an equal or greater
injury?

A. To avail of this exempting circumstance, the evidence must establish:

(1) the existence of an uncontrollable fear;

(2) that the fear must be real and imminent; and

(3) the fear of an injury is greater than or at least equal to that

committed. 

A threat of future injury is insufficient. The compulsion must be of such a character as to

leave no opportunity for the accused to escape. (People vs. Baron 621 SCRA 646, 28
June 2010),
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5. Article 13. Mitigating circumstances.

Q. How can voluntary surrender be considered as a mitigating circumstance in the

commission of a crime?

A. A surrender to be voluntary must be spontaneous, showing the intent of the accused

to submit himself unconditionally to the authorities either because:

(a) he acknowledges his guilt; or

(b) he wishes to save them the trouble and expense necessarily incurred in his
search and capture. (People vs. Agacer, 662 SCRA 461, 14 December 2011.)

Q. What is the essence of voluntary surrender?

A. To save the authorities the trouble and expense that may be incurred for his search and
capture is the essence of voluntary surrender. The presentation by appellant of
himself to the police officer on duty in a spontaneous manner is a manifestation of
this intent. (People vs. Sales, 658 SCRA 367, 3 October 2011.)

6. Article 14. Aggravating circumstances.

Q. When can there be abuse of superior strength in the commission of a crime?

A. There is abuse of superior strength when the offenders took advantage of their
combined strength in order to consummate the offense. (People vs. Torres, 735
SCRA 687, 22 September 2014.)

Q. Will the presence of abuse of superior strength in the special complex crime of
robbery with homicide qualify the crime committed?

A. No. In People vs. Torres supra, the Supreme Court held that: The presence of abuse of
superior strength should not result in qualifying the offense to murder.  When
abuse of superior strength obtains in the special complex crime of robbery with
homicide, it is to be regarded as a generic circumstance, robbery with homicide
being a composite crime with its own definition and special penalty in the Revised
Penal Code. With the penalty of reclusion perpetua to death imposed for
committing robbery with homicide, the generic aggravating circumstance of
abuse of superior strength attending the killing of the victim qualifies the
imposition of the death penalty on appellant.” In view, however, of Republic Act No.
9346, entitled “An Act Prohibiting the Imposition of the Death Penalty in the
Philippines,” the penalty that must be imposed on appellant is reclusion
perpetua without eligibility for parole.

Q. When can there be treachery in the commission of a crime?

A. Treachery is present when the offender employs means, methods, or forms in the
execution of the crime which tend directly and especially to insure its execution
without risk to himself arising from any defensive or retaliatory act which the
victim might make. What is decisive is that the execution of the attack, without the
 6

slightest provocation from a victim who is unarmed, made it impossible for the victim to
defend himself or to retaliate. (People vs. De la Cruz, 784 SCRA 327, 17 February
2016; People vs. Yanson, 658 SCRA 385, 3 October 2011; People vs. Napalit, 616
SCRA 245, 19 March 2010.)

Q. What is the essence of treachery?

A. The essence of treachery is the sudden and unexpected attack by the aggressor on
an unsuspecting victim, depriving him of any real chance to defend himself. Even
when the victim was forewarned of the danger to his person, treachery may still be
appreciated since what is decisive is that the execution of the attack made it impossible
for the victim to defend himself or to retaliate. (People vs. Alvarez, 748 SCRA 674, 2
February 2015; People vs. Amora, 742 SCRA 667, 26 November 2014; People vs.
Zulieta, 709 SCRA 202, 11 September 2013; People vs. Agacer, 662 SCRA 461, 14
December 2011; People vs. Lucero, 636 SCRA 535, 6 December 2010; Bug-atan vs.
People, 630 SCRA 537, 15 September 2010.)

Q. Can treachery be appreciated in case of robbery with homicide to increase the

imposable penalty? Explain.

A. Yes. In People vs. Baron (621 SCRA 646, 28 June 2010), the Supreme Court said that
Robbery with Homicide is a single indivisible crime punishable with reclusion
perpetua to death under paragraph 1, Article 294 of the Revised Penal Code. The
trial court correctly appreciated the aggravating circumstance of treachery, which exists
when the offender commits any of the crimes against persons, employing means,
methods or forms in the execution thereof that tend directly and specifically to insure
its execution without risk to himself arising from the defense that the offended party
might make. The evidence points that one of the co-conspirators tied the hands of the
victim before dragging him to the sugarcane field. Thus, he was unable to defend and
protect himself against his malefactors who were superior in number and armed with
knives and guns.

As thoroughly discussed in People vs. Escote, Jr., treachery is not a qualifying

circumstance but "a generic aggravating circumstance to robbery with homicide
although said crime is classified as a crime against property and a single and
indivisible crime". Corollarily, "Article 62, paragraph 1 of the Revised Penal Code
provides that in diminishing or increasing the penalty for a crime, aggravating
circumstances shall be taken into account. However, aggravating circumstances which
in themselves constitute a crime especially punishable by law or which are included by the
law in defining a crime and prescribing a penalty therefor shall not be taken into account
for the purpose of increasing the penalty". In the case at bar, "treachery is not an element
of robbery with homicide". Neither is it "inherent in the crime of robbery with
homicide". As such, treachery may be properly considered in increasing the penalty
for crime.

Q. What are the elements in order to appreciate Evident Premeditation?

A. Before evident premeditation may be appreciated, the following elements must be

proved:
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a) the time when the accused was determined to commit the crime;

b) an act manifestly indicating that the accused has clung to his determination;
and,

c) sufficient lapse of time between the determination and execution to allow him
to reflect upon the consequences of his act. (People vs. Alvarez, 748 SCRA 674,
2 February 2015; People vs. Alawig, 706 SCRA 88, 18 September 2013;
Bug-atan vs. People, 630 SCRA 537, 15 September 2010.)

Q. What are the requisites in order that the defense of alibi will prosper?

A. In People vs. De la Cruz (784 SCRA 327, 17 February 2016), the defense of alibi was
not given credit by the Supreme Court and thus, the conviction of the accused for
Murder was upheld. According to the Court, for the defense of alibi to prosper, the
accused must prove that:

(a) he was present at another place at the time of the

perpetration of the crime, and

(b) it was physically impossible for him to be at the crime scene

during its commission. 

Physical impossibility refers to the distance and the facility of access between the crime
scene and the location of the accused when the crime was committed. He must
demonstrate that he was so far away and could not have been physically present at the
crime scene and its immediate vicinity when the crime was committed. (People vs.
Amora, 742 SCRA 667, 26 November 2014.)

Q. Is the use of Motor Vehicle in the commission of the crime and eventual escape of
the assailant considered as an aggravating circumstance?

A. Yes. In People vs. Biglete (673 SCRA 546, 18 June 2012) the Supreme Court held that
the aggravating circumstance of use of a motor vehicle attended the commission of the
crime. Appellant was on board his motorcycle when he tried to overtake the jeepney
being driven by the victim. When he was already near the left side of the victim,
appellant shot him at close range. Immediately thereafter, he fled from the crime scene
using his motorcycle. There is therefore no doubt that the motorcycle was used to
facilitate the commission of the crime as well as his escape after the deed has been
accomplished. (also in People vs. Herbias)

Q. Can the aggravating circumstance of dwelling be considered against the accused

when he did the firing of the gun from the outside of the house?

A. Yes. The aggravating circumstance of dwelling can be appreciated against the accused as
held in People vs. Sibbu (G.R. No. 214757, 29 March 2017), although the triggerman
fired the shot from outside the house and his victim was inside. For this circumstance to
be considered, it is not necessary that the accused should have actually entered the
dwelling of the victim to commit the offense; it is enough that the victim was
 8

attacked inside his own house, although the assailant may have devised means to
perpetrate the assault from without.

Q. Is the use of bonnet, to conceal identity in the commission of the crime, be

considered as an aggravating circumstance referred to as “other similar means”
in par. 21 of Art. 14?

A. Yes. In Sibbu, supra, the Supreme Court said that it is correct to appreciate the use of
disguise as an aggravating circumstance such as appellant’s covering of his face with a
bonnet during the shooting incident. There could be no other possible purpose for
wearing a bonnet over appellant's face but to conceal his identity, especially since the
witness and the appellant live in the same barangay and are familiar with each other.

7. Article 48. Penalty for complex crimes.

Q. What is complex crime?

A. A complex crime may refer to a single act which constitutes two or more grave or
less grave felonies or to an offense as a necessary means for committing another.
(Tanenggee vs. People, 699 SCRA 639, 26 June 2013.)

Q. Is estafa through falsification of public, official or commercial document

considered as a complex crime?

A. Yes. In Domingo vs. People, the Supreme Court held that the falsification of a public,
official, or commercial document may be a means of committing estafa because, before
the falsified document is actually utilized to defraud another, the crime of falsification
has already been consummated, damage or intent to cause damage not being an
element of the crime of falsification of public, official or commercial document.  In other
words, the crime of falsification has already existed.  Actually utilizing that falsified
public, official or commercial document to defraud another is estafa.  But the damage is
caused by the commission of estafa, not by the falsification of the document.  Therefore,
the falsification of the public, official or commercial document is only a necessary means
to commit estafa. (Tanenggee vs. People, supra.)

8. Article 89. How criminal liability is totally extinguished .

Q. What is the effect of the death of the accused/appellant during the pendency of his
appeal?

A. In People vs. Soria (717 SCRA 276, 24 February 2014), the Supreme Court reiterated
its decision in People vs. Amistoso, that the death of the accused pending appeal of
his conviction extinguishes his criminal liability, as well as his civil liability ex
delicto. Since the criminal action is extinguished inasmuch as there is no longer a
defendant to stand as the accused, the civil action instituted therein for recovery of civil
liability ex delicto is ipso facto extinguished, grounded as it is on the criminal case. (See
also People vs. Agacer, 68 SCRA 42, 7 January 2013.)
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-- BOOK II --

9. Article 148. Direct assaults.

Q. What are the two modes of committing the crime of direct assault? Explain.

A. In Gelig vs. People (626 SCRA 48, 28 June 2010), the Supreme Court said that the
provision on direct assaults is clear. Direct assault is an offense against public order
that may be committed in two ways: first, by any person or persons who, without a
public uprising, shall employ force or intimidation for the attainment of any of the
purposes enumerated in defining the crimes of rebellion and sedition; and second, by
any person or persons who, without a public uprising, shall attack, employ force, or
seriously intimidate or resist any person in authority or any of his agents, while engaged
in the performance of official duties, or on occasion of such performance.

Q. What are the elements of the second mode of direct assault?

A. Its elements are as follows:

1. That the offender:

(a) makes an attack,

(b) employs force,
(c) makes a serious intimidation, or
(d) makes a serious resistance.

2. That the person assaulted is a person in authority or his agent.

3. That at the time of the assault the person in authority or his agent (a) is engaged
in the actual performance of official duties, or (b) that he is assaulted by reason
of the past performance of official duties.

4. That the offender knows that the one he is assaulting is a person in authority or
his agent in the exercise of his duties.

5. That there is no public uprising.

Q. Marina, a public classroom teacher, was busy with her paperworks inside the
classroom while supervising and looking after her pupils during the recess
period. Then there suddenly came Marta who was very angry when she
confronted Marina and accused her of calling her son a "sissy". Marta refused to
be pacified despite the efforts of Marina and continued with her verbal abuse
towards the latter, that eventually enraged the victim. Marina then went to the
principal’s office. Marta followed her and with force, slapped and pushed her
against a wall divider. The violent act resulted in Marina’s fall to the floor. As a
consequence thereof, Marina suffered a miscarriage. A medical Certificate was
issued that Marina suffered an abortion. However, the attending physician who
issued the said medical certificate was not presented as witness by the
prosecution.
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1. What was the crime committed by Marta? Explain.

2. Can Marta be held liable for both direct assault and unintentional
abortion? Explain.

A. 1) Marta committed the crime of Direct Assault under Art. 148 of the RPC. Marina,
being a public school teacher, belongs to the class of persons in authority
expressly mentioned in Article 152 of the Revised Penal Code, as amended. The
pertinent portion of the provision reads as follows:

Art. 152. Persons in Authority and Agents of Persons in

Authority–Who shall be deemed as such.–

xxxx

In applying the provisions of articles 148 and 151 of this Code,

teachers, professors, and persons charged with the supervision of
public or duly recognized private schools, colleges and universities, and
lawyers in the actual performance of their professional duties or on the
occasion of such performance shall be deemed persons in authority. (As
amended by Batas Pambansa Bilang 873, approved June 12, 1985.)

2) In Gelig vs. People (626 SCRA 48, 28 July 2010), the Supreme Court held that:
The prosecution’s success in proving that Marta committed the crime of direct
assault does not necessarily mean that the same physical force she employed on
Marina also resulted in the crime of unintentional abortion. There is no evidence
on record to prove that the slapping and pushing of Marina by Marta was the
proximate cause of the abortion. While the medical certificate of Marina’s
attending physician was presented to the court to prove that she suffered an
abortion, there is no data in the document to prove that her medical condition
was a direct consequence of the incident. It was therefore vital for the
prosecution to present the attending physician as a competent witness to
establish a link, if any, between Marta’s assault and Marina’s abortion. Without
the physician’s testimony, there is no way to ascertain the exact effect of the
assault on Marina’s abortion.

10. Article 169. How forgery is committed.

Q. When can there be forgery and how is it established? Explain.

A. Forgery is present when any writing is counterfeited by the signing of another’s

name with intent to defraud. It can be established by comparing the alleged false
signature with the authentic or genuine one.  A finding of forgery does not depend
entirely on the testimonies of government handwriting experts whose opinions do not
mandatorily bind the courts.  A trial judge is not precluded but is even authorized by
law to conduct an independent examination of the questioned signature in order to
arrive at a reasonable conclusion as to its authenticity. (Tanenggee vs. People, 699
SCRA 639, 26 June 2013.)
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11. Article 171. Falsification by public officer, employee or notary or ecclesiastic

minister.

Article 172. Falsification by private individual and use of falsified documents .

Q. What are the elements of the crime of falsification of commercial document under
Art, 172 of the RPC?

A. The elements of the crime of falsification of commercial document under Art. 172 are:

(1) that the offender is a private individual;

(2) that the offender committed any of the acts of falsification;
and
(3) that the act of falsification is committed in a commercial
document.

Q. Explain estafa through falsification of public, official or commercial documents.

A. Before the falsified document is actually utilized to defraud another, the crime of
Falsification has already been consummated, the damage or intent to cause damage not
being an element of the crime of falsification of public, official or commercial document. 
In other words, the crime of falsification has already existed. Actually utilizing that
falsified public, official or commercial document to defraud another is Estafa. Thus, the
damage is caused by the commission of Estafa, not by the falsification of the document. 
Therefore, the falsification of the public, official or commercial document is only a
necessary means to commit the estafa. (People vs. Go, 732 SCRA 216, 6 August 2014.)
 
Q. What are commercial documents in contemplation of Art. 172 of the RPC? Give
examples.

A. Commercial documents are, in general, documents or instruments which are used

by merchants or businessmen to promote or facilitate trade or credit
transactions.  Promissory notes facilitate credit transactions. A check is a means of
payment used in business in lieu of money for convenience in business transactions.  A
cashier’s check necessarily facilitates bank transactions for it allows the person whose
name and signature appear thereon to encash the check and withdraw the amount
indicated therein. (Tanenggee vs. People, 699 SCRA 639, 26 June 2013.)

12. Article 180. False testimony against a defendant.

Article 181. False testimony favorable to the defendants.
Article 182. False testimony in civil cases.
Article 183. False testimony in other cases and perjury in solemn affirmation .

Q. What are the elements of perjury?

A. For perjury to exist:

(1) there must be a sworn statement that is required by law;

(2) it must be made under oath before a competent officer;

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(3) the statement contains a deliberate assertion of falsehood; and

(4) the false declaration is with regard to a material matter. (Masangkay vs.
People, 621 SCRA 231, 18 June 2010.)

Q. Explain the element of materiality in perjury cases?

A. A material matter is the main fact which is the subject of the inquiry or any fact or
circumstance which tends to prove that fact, or corroborate or strengthen the testimony
relative to the subject of inquiry, or which legitimately affects the credit of any witness
who testifies.

Q. Is there perjury if there are two conflicting statements of the accused? What is the
duty of the prosecution to unearth which of the statements is perjured? Explain.

A. A conviction for perjury cannot be obtained by the prosecution by merely showing the
inconsistent or contradictory statements of the accused, even if both statements are
sworn. The prosecution must additionally prove which of the two statements is false
and must show the statement to be false by evidence other than the contradictory
statement. The rationale for requiring evidence other than a contradictory statement is
explained thus:

x x x Proof that accused has given contradictory testimony under oath

at a different time will not be sufficient to establish the falsity of his testimony
charged as perjury, for this would leave simply one oath of the defendant as
against another, and it would not appear that the testimony charged was false
rather than the testimony contradictory thereof. The two statements will simply
neutralize each other; there must be some corroboration of the
contradictory testimony. Such corroboration, however, may be furnished
by evidence aliunde tending to show perjury independently of the
declarations of testimony of the accused.

Q. Can an opinion or judgment found to be false be the subject of a perjury case?

Explain.

A. No. As held in Masangkay vs. People (621 SCRA 231, 18 June 2010), the Supreme
Court said that: Petitioner’s statements in paragraph 5 of the petition for involuntary
dissolution about the nature of the Deed of Exchange are conclusions of law, and not
factual statements which are susceptible of truth or falsity. They are his opinion
regarding the legal character of the Deed of Exchange. He opined that the Deed of
Exchange was fictitious or simulated under Article 1409 of the Civil Code, because MFI
supposedly did not perform its reciprocal obligation to issue stocks to Gilberto in
exchange for his land. His opinion or legal conclusion may have been wrong (as failure
of consideration does not make a contract simulated or fictitious), but it is an opinion or
legal conclusion nevertheless. An opinion or a judgment cannot be taken as an
intentional false statement of facts.
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13. Article 217. Malversation of public funds or property; Presumption of malversation .

Q. In case of malversation under Art. 217 of the RPC, can the payment,
indemnification, or reimbursement of the funds misappropriated be considered
as mitigating circumstance?

A. Yes. In Lumauig vs. People (729 SCRA 191, 7 July 2014), the Supreme Court held that:
In malversation of public funds, the payment, indemnification, or reimbursement
of the funds misappropriated may be considered a mitigating circumstance being
analogous to voluntary surrender. Although this case does not involve malversation
of public funds under Article 217 of the Revised Penal Code but rather failure to render
an account under Article 218 (i.e., the succeeding Article found in the same Chapter), the
same reasoning may be applied to the return or full restitution of the funds that were
previously unliquidated in considering the same as a mitigating circumstance in favor of
petitioner.

14. Article 218. Failure of accountable officer to render accounts .

Q. What are the elements of the felony punishable under Article 218 of the Revised
Penal Code?

A. The elements are as follows:

(1) The offender is a public officer whether in the service or separated therefrom;

(2) He must be an accountable officer for public funds or property;

(3) He is required by law or regulation to render accounts to the COA or to a

provincial auditor; and,

(4) He fails to do so for a period of two months after such account should be
rendered. (Lumauig vs. People, 729 SCRA 191, 7 July 2014.)

Q. Is prior demand to liquidate necessary in order to hold an accountable official

liable for violation of Art. 218 of the RPC? Explain.

A. No. In Lumauig vs. People supra, the Supreme Court held that it is sufficient that there
is a law or regulation requiring him to render an account. The question has been settled
in Manlangit vs. Sandiganbayan where the Court ruled that prior demand to liquidate is
not necessary to hold an accountable officer liable for violation of Article 218 of the
Revised Penal Code.

15. Article 246. Parricide.

Q. What are the elements of the crime of parricide?

A. In the crime of parricide, only the following elements need to be satisfactorily

established:

(1) the death of the deceased;

 14

(2) that he or she was killed by the accused; and

(3) that the deceased was a legitimate ascendant or descendant, or the legitimate
spouse of the accused. (People vs. Zapata, 730 SCRA 313, 21 July 2014;
People vs. Sales, 658 SCRA, 367, 3 October 2011.)

16. Article 248. Murder.

Q. What are the elements of the crime of murder?

A. The elements of the crime of murder are:

(1) a person was killed;

(2) the accused killed him or her;

(3) the killing was attended by any of the qualifying circumstances mentioned in
Article 248 of the Revised Penal Code (RPC); and

(4) that the killing is not parricide or infanticide. (People vs. Alvarez, 748 SCRA
674, 2 February 2015.)

Q. What is murder in contemplation of Art. 248 of the RPC? Explain.

A. Murder is the unlawful killing by the accused of a person, which is not parricide or
infanticide, committed with any of the attendant circumstances enumerated in Article
248 of the Revised Penal Code, one of which is treachery. (People vs. Jalbonian, 700
SCRA 280, 1 July 2013; People vs. Cabtalan, 666 SCRA 174, 15 February 2012;
People vs. Mamaruncas, 664 SCRA 182, 25 January 2012.)

Q. Explain treachery in the context of Art. 248.

A. It is the suddenness of the assault, without the slightest provocation from the victim
who was unarmed and with nary an opportunity to repel the aggression or defend
himself, ineluctably qualified the crime with alevosia. (Vidar vs. People, 611 SCRA
216, 1 February 2010.)

In People vs. Gunda (715 SCRA 505, 5 February 2014), it was held that: There is
treachery when the offender commits [a crime] against the person, employing means,
methods or forms in the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the offended party
might make.

Q. What must be proven by the prosecution in order that treachery will qualify the
crime to murder?

A. For treachery to qualify the crime to murder, it must be shown that:

a) the malefactor employed such means, method or manner of execution as to

ensure his or her safety from the defensive or retaliatory acts of the victim; and
 15

b) the said means, method and manner of execution were deliberately adopted.

The circumstances surrounding the [killing] must be proved as indubitably as the crime
itself. Treachery cannot be presumed. (People vs. Alawig, 706 SCRA 88, 18
September 2013.)

Q. Is the person convicted of murder eligible for parole? Explain your answer.

A. No. In People vs. Gunda supra, the Supreme Court said that: Under Article 248 of the
Revised Penal Code, the penalty for murder is reclusion perpetua to death. There being
no other aggravating circumstance other than the qualifying circumstance of treachery,
the CA correctly held that the proper imposable penalty is reclusion perpetua, the lower
of the two indivisible penalties. It must be emphasized, however, that appellant is not
eligible for parole pursuant to Section 3 of Republic Act No. 9346 which states that
‘persons convicted of offenses punished with reclusion perpetua, or whose sentence
will be reduced to reclusion perpetua by reason of this Act, shall not be eligible for
parole under Act No. 4180, otherwise known as the Indeterminate Sentence Law, as
amended’. (See also People vs. Abaigar, 721 SCRA 73, 7 April 2014.)

Q. In case of conviction of the accused for the crime of murder, what are the damages
and the corresponding amounts to be awarded to the private complainant?

A. The award of P15,000.00 as actual damages is deleted and in lieu thereof, temperate
damages in the amount of P50,000.00 is awarded. The awards of moral damages and
exemplary damages are increased to P75,000.00 each; and the award of P75,000.00 as
civil indemnity is maintained. Finally, all damages shall earn interest at the rate of
6% per annum from the date of finality of this judgment until fully paid. (People vs.
Quita, 816 SCRA 41, 25 January 2017.)

Q. In view of the present trend in jurisprudence, what damages and the amount
thereof shall be awarded to the heirs of the victim of the crimes of Murder,
Parricide, Serious Intentional Mutilation, Infanticide? Cite your basis.

A. In People vs. Sibbu (G.R. No. 214757, 29 March 2017), the Supreme Court made the
following summary of damages for those crimes like, Murder, Parricide, Serious
Intentional Mutilation, Infanticide, and other crimes involving death of a victim where
the penalty consists of indivisible penalties:

1.1. Where the penalty imposed is death but reduced to reclusion perpetua because
of RA 9364:

a) Civil indemnity – P100,000.00

b) Moral damages – P100,000.00
c) Exemplary damages – P100,000.00

1.2. Where the crime committed was not consummated:

a) Frustrated: 

i. Civil indemnity – P75,000.00

 16

ii. Moral damages – P75,000.00

iii. Exemplary damages – P75,000.00 

b) Attempted: 

i. Civil indemnity – P50,000.00

ii. Moral damages – P50,000.00
iii. Exemplary damages –
P50,000.00 (See also People vs. Soriano, G.R. No. 216063, 5 June
2017.)

Q. When can there be an award of exemplary damages in criminal cases?

A. In People vs. Angeles, 596 SCRA 304 (14 August 2009).the Supreme Court said that
"under Article 2230 of the Civil Code, exemplary damages may be awarded in
criminal cases when the crime was committed with one or more aggravating
circumstances (in this case, abuse of superior strength). This is intended to serve as
deterrent to serious wrongdoings and as vindication of undue sufferings and wanton
invasion of the rights of an injured, or as a punishment for those guilty of outrageous
conduct. The imposition of exemplary damages is also justified under Article 2229 of the
Civil Code in order to set an example for the public good."

Q. When can the aggravating circumstance of “abuse of superior strength” be

appreciated in murder cases? Explain.

A. "Abuse of superior strength is present whenever there is a notorious inequality of

forces between the victim and the aggressor, assuming a situation of superiority of
strength notoriously advantageous for the aggressor selected or taken advantage of by
him in the commission of the crime."

In the case of People vs. Beduya (627 SCRA 275, 9 August 2010), the Supreme Court
held that: The fact that there were two persons who attacked the victim does not per se
establish that the crime was committed with abuse of superior strength, there being no
proof of the relative strength of the aggressors and the victim. The evidence must
establish that the assailants purposely sought the advantage, or that they had the
deliberate intent to use this advantage. "To take advantage of superior strength”
means to purposely use excessive force out of proportion to the means of defense
available to the person attacked. The appreciation of this aggravating
circumstance depends on the age, size, and strength of the parties.

Q. What is the proper penalty if the offender is a minor at the time of the commission
of the crime of murder? Explain.

A. In People vs. Agacer (688 SCRA 42, 7 January 2013), the Supreme Court held that: The
privileged mitigating circumstance of minority is embodied in Article 68(2) of the
Revised Penal Code. It provides that when the offender is a minor over 15 and under
18 years, the penalty next lower than that prescribed by law shall be imposed on
the accused but always in the proper period. The rationale of the law in extending
such leniency and compassion is that because of his age, the accused is presumed to
have acted with less discernment. This is regardless of the fact that his minority was not
 17

proved during the trial and that his birth certificate was belatedly presented for
consideration, since to rule accordingly will not adversely affect the rights of the state,
the victim and his heirs.

17. Article 249. Homicide.

Q. What crime was committed if it resulted to death but there is no intent to kill?
Explain.

A. When death resulted, even if there was no intent to kill, the crime is homicide, not
just physical injuries, since with respect to crimes of personal violence, the penal law
looks particularly to the material results following the unlawful act and holds the
aggressor responsible for all the consequences thereof.

In Seguritan vs. People (618 SCRA 406, 19 April 2010), the Supreme Court
emphasized Article 4 of the Revised Penal Code, stated in this wise:

Art. 4. Criminal liability – Criminal liability shall be incurred:

1. By any person committing a felony (delito) although the

wrongful act done be different from that which he intended.

x-x-x-x-x

Q. What is the penalty for homicide?

A. The penalty for Homicide under Article 249 of the Revised Penal Code is reclusion
temporal the range of which is from 12 years and one day to 20 years . Applying the
Indeterminate Sentence Law, the penalty next lower in degree is prision mayor, the
range of which is from six years and one day to 12 years. In the case of Seguritan vs.
People supra, the Supreme Court ruled that the mitigating circumstance of no intention
to commit so grave a wrong as that committed, attended the commission of the crime.
Thus, the appellate court correctly imposed the indeterminate penalty of six years and
one day of prision mayor, as minimum, to 12 years and one day of reclusion temporal, as
maximum.

Q. What are the elements of Frustrated Homicide?

A. The elements of frustrated homicide are:

(1) the accused intended to kill his victim, as manifested by his use of a deadly
weapon in his assault;

(2) the victim sustained fatal or mortal wound/s but did not die because of timely
medical assistance; and

(3) none of the qualifying circumstances for murder under Article 248 of the
Revised Penal Code exist. (Olarte vs. People, 761 SCRA 576, 6 July 2015.)
 18

18. Article 266-A. Rape;  When And How Committed.

Article 266-B. Penalty.
Article 266-C. Effect of Pardon.
Article 266-D. Presumptions.

Q. Explain the concept of Republic Act No. 8353, otherwise known as the Anti-Rape
Law of 1997?

A. The enactment of R.A. No. 8353, otherwise known as the Anti-Rape Law of 1997,
reclassified the crime of rape as a crime against persons. It also amended Article
335 of the RPC and incorporated therein Article 266-A.

I. ORGAN RAPE OR PENILE RAPE

Thus, rape can now be committed either through sexual intercourse or through
sexual assault. In rape under paragraph 1 or rape through sexual intercourse,
carnal knowledge is the crucial element which must be proven beyond reasonable
doubt. This is also referred to as “organ rape” or “penile rape” and must be attended
by any of the circumstances enumerated in subparagraphs (a) to (d) of paragraph 1. 
There must be evidence to establish beyond reasonable doubt that the
perpetrator’s penis touched the labia of the victim or slid into her female organ,
and not merely stroked the external surface thereof, to ensure his conviction of
rape by sexual intercourse.

II. INSTRUMENT OR OBJECT RAPE, ALSO GENDER-FREE RAPE, OR THE

NARROWER HOMOSEXUAL RAPE

On the other hand, rape under paragraph 2 of the above-quoted article is commonly
known as rape by sexual assault.  The perpetrator, under any of the attendant
circumstances mentioned in paragraph 1, commits this kind of rape by inserting his
penis into another person’s mouth or anal orifice, or any instrument or object
into the genital or anal orifice of another person.  It is also called “instrument or
object rape”, also “gender-free rape”, or the narrower “homosexual rape.”(People
vs. Gaduyon, 709 SCRA 129, 11 November 2013.)

Q. What are the elements of rape by sexual intercourse under paragraph 1, Art. 266-
A of the RPC to overcome the presumption of innocence of the accused?

A. The elements are as follows:

(1) the offender is a man;

(2) the offender had carnal knowledge of a woman;

(3) such act was accomplished by using force, threat or intimidation. (People vs.
Delfin, 744 SCRA 413, 10 December 2014.)

In People vs. Tionloc (G.R. No. 212193, 15 February 2017), the Supreme Court
emphasized that in rape cases alleged to have been committed by force, threat or
intimidation, it is imperative for the prosecution to establish that the element of
 19

voluntariness on the part of the victim be absolutely lacking. The prosecution must
prove that force or intimidation was actually employed by accused upon his victim to
achieve his end. Failure to do so is fatal to its cause.

Q. What are the circumstances in order to constitute the acts as rape?

A. Under Article 266-A of the RPC, rape is committed by having carnal knowledge of a
woman under any of the following circumstances:

1. By using force, threat, or intimidation;

2. When the offended party is deprived of reason or is otherwise unconscious;

3. By means of fraudulent machination or grave abuse of authority; and 

4. When the offended party is under twelve (12) years of age or is demented, even
though none of the circumstances mentioned above be present. (People vs.
Caga, 801 SCRA 231, 22 August 2016; People vs. Asetre, 651 SCRA 441, 8
June 2011.)

Q. Explain the elements of force and intimidation employed by the accused against
the rape victim.

A. In People vs. Tionloc supra, the Supreme Court had the occasion to explain “force and
intimidation” as elements of rape, in this wise: Force, as an element of rape, must be
sufficient to consummate the purposes which the accused had in mind. On the other
hand, intimidation must produce fear that if the victim does not yield to the bestial
demands of the accused, something would happen to her at that moment or even
thereafter as when she is threatened with death if she reports the incident. Intimidation
includes the moral kind as the fear caused by threatening the girl with a knife or pistol.

Q. Should force and intimidation be necessarily be established in case the rape victim was
unconscious and extremely intoxicated?

A. In People vs. Caga (801 SCRA 231, 22 August 2016), the Supreme Court held that: It is
altogether immaterial that the prosecution's evidence failed to establish the presence of
physical force, threat, or intimidation because the evidence showed that the accused
raped an unconscious and extremely intoxicated woman - a fact that was duly alleged in
the Information and duly established by the prosecution's evidence during the trial.
Thus, physical force, threat or intimidation is not necessary, for the simple reason that
an unconscious and extremely intoxicated woman, cannot freely and voluntarily give
her consent to engaging in sexual intercourse. (See also People vs. Soria, 685 SCRA
483, 14 November 2012.)

Q. If the victim is drunk at the time that the alleged rape was committed, will the
accused be adjudged guilty?

A. No. In People vs. Tionloc supra, the Supreme Court held that: The fact that "AAA" was
tipsy or drunk at that time cannot be held against the appellant. There is authority to
the effect that where consent is induced by the administration of drugs or liquor, which
 20

incites her passion but does not deprive her of her will power, the accused is not guilty
of rape.

Q. What is the gravamen of the crime of rape?

A. The gravamen of the offense of rape is sexual intercourse with a woman against her will
or without her consent. (People vs. Dumadag, 652 SCRA 535, 22 June 2011.)

In People vs. Gabriel (G.R. No.213390, 15 March 2017), the Supreme Court reiterated
the ruling in the 1901 case of United States vs. Ramos, et al., that when a woman
testifies that she has been raped, she says, in effect, that all that is necessary to
constitute the commission of this crime has been committed. It is merely a question
then, whether or not this court accepts her statement." Jurisprudence has clung with
unrelenting grasp to till precept.

Q. Is hymenal laceration, whether fresh or healed, an element of the crime of rape?

A. No. Hymenal laceration, whether fresh or healed, is not an element of the crime of rape.
Even a medical examination is not necessary as it is merely corroborative. (People vs.
Guillen, 710 SCRA 533, 25 November 2013.)

In People vs. De Jesus (706 SCRA 763, 7 October 2013), the Supreme Court reiterated
the ruling in People vs. Amistoso 688 SCRA 376 (9 January 2013). that the fact that the
examining doctor found healed lacerations “does not negatively affect AAA’s credibility
nor disprove her rape.” Citing People vs. Orilla, the Court further said that the absence
of fresh lacerations in the victim’s hymen does not prove that appellant did not rape her.
A freshly broken hymen is not an essential element of rape and healed lacerations do
not negate rape. In addition, a medical examination and a medical certificate are merely
corroborative and are not indispensable to the prosecution of a rape case. The credible
disclosure of a minor that the accused raped her is the most important proof of sexual
abuse.

Q. Is resistance of the rape victim an element of the crime?

A. No. In the case of People vs. Barcela (637 SCRA 599, 8 December 2010), it was held
that: Even if it were true that "AAA" did not seriously resist appellant’s offense, her
failure cannot be considered to diminish the credibility of her testimony. "It must be
stressed that the resistance of the victim is not an element of the crime of rape," and
"the law does not impose on the prosecution the burden of establishing the
same." "As long as the force or intimidation is present, whether it was more or less
irresistible is beside the point."

Q. When should resistance be made by the rape victim in order to convict the
accused for rape?

A. In People vs. Tionloc supra, the accused was acquitted because there was no resistance
from the alleged victim during the commission of the crime. The Supreme Court said
that resistance should be made before the rape is committed. Citing the case of People
vs. Amogis, the Court further said that resistance must be manifested and tenacious. A
mere attempt to resist is not the resistance required and expected of a woman
 21

defending her virtue, honor and chastity. And granting that it was sufficient, "AAA"
should have done it earlier or the moment appellant's evil design became manifest. In
other words, it would be unfair to convict a man of rape committed against a woman
who, after giving him the impression thru her unexplainable silence of her tacit consent
and allowing him to have sexual contact with her, changed her mind in the middle and
charged him with rape.

Q. Can rape be committed in places where people congregate?

A. In People vs. Cial (707 SCRA 285, 9 October 2013), the Supreme Court said that: It is a
settled jurisprudence that rape can be committed even in places where people
congregate. 

Q. What is rape by sexual assault? Explain.

A. Under Article 266-A (2) of the RPC, rape by sexual assault is committed by any
person who, under any of the circumstances mentioned in paragraph 1 thereof, inserted
his penis into another person’s mouth or anal orifice, or any instrument or object, into
the genital or anal orifice of another person. (People vs. Alfonso, 628 SCRA 431, 18
August 2010.)

Q. What is the penalty for simple rape?

A. Article 266-B in relation to Article 266-A (1)(a) of the RPC provides that the penalty for
simple rape is reclusion perpetua. It must be emphasized, however, that appellant shall
not be eligible for parole pursuant to Section 3 of Republic Act No. 9346 which states
that ‘persons convicted of offenses punished with reclusion perpetua, or whose
sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be
eligible for parole under Act No. 4180, otherwise known as the Indeterminate Sentence
Law, as amended.’ (People vs. Delfin supra; See also People vs. Manigo, 714 SCRA
551, 27 January 2014.)

Q. What is statutory rape?

A. Statutory rape is provided under Art. 266-A(1)(d) of the RPC. When the offended
party is under 12 years of age, the crime committed is termed statutory rape as it
departs from the usual modes of committing rape. What the law punishes is carnal
knowledge of a woman below 12 years of age. Thus, the only subject of inquiry is the
age of the woman and whether carnal knowledge took place. The law presumes that the
victim does not and cannot have a will of her own on account of her tender years.
(People vs. Sato, 741 SCRA 133, 19 November 2014.)

Q. What are the elements of statutory rape?

A. The elements of statutory rape are:

(1) The accused had carnal knowledge of a woman; and

 22

(2) The woman is below 12 years of age. (People vs. Lujeco, 721 SCRA 37, 7 April
2014; People vs. Santiago, 720 SCRA 516, 2 April 2014; People vs. Alfonso,
628 SCRA 431, 18 August 2010.)

Q. What is the imposable penalty for statutory rape?

A. The imposable penalty is reclusion temporal. Applying the Indeterminate Sentence

Law, and there being no other aggravating or mitigating circumstance, the proper
imposable penalty shall be prision mayor as minimum, to reclusion temporal, as
maximum.  The CA thus correctly imposed the penalty of eight (8) years and one (1) day
of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion
temporal, as maximum, for each count of sexual assault. (People vs. Crisostomo, 715
SCRA 99, 29 January 2014.)

Q. Can the inconsistencies of the rape victim’s testimonies impair her credibility?

A. No. In People vs. Crisostomo supra, the Supreme Court held that:  “Inconsistencies in
a rape victim’s testimony do not impair her credibility, especially if the
inconsistencies refer to trivial matters that do not alter the essential fact of the
commission of rape.”   It was also held in People vs. Piosang that: “testimonies of
child–victims are normally given full weight and credit, since when a girl, particularly if
she is a minor, says that she has been raped, she says in effect all that is necessary to
show that rape has in fact been committed.  When the offended party is of tender age
and immature, courts are inclined to give credit to her account of what transpired,
considering not only her relative vulnerability but also the shame to which she would be
exposed if the matter to which she testified is not true.  Youth and immaturity are
generally badges of truth and sincerity. 

Q. Can the accused be convicted solely based on the testimony of the rape victim
even if without Medical Certificate?

A. Yes. In People vs. Vilanueva (629 SCRA 720, 1 September 2010), it was held that: "In
rape cases, the accused may be convicted solely on the testimony of the victim, provided
the testimony is credible, natural, convincing, and consistent with human nature and the
normal course of things." The medical certificate would only serve as corroborative
evidence. (See also People vs. Banig, 679 SCRA 133, 23 August 2012.)

Q. Is the sweetheart theory a valid defense in rape case? Explain.

A. No. In People vs. Lagangga (777 SCRA 363, 9 December 2015), the appellant admitted
having sexual intercourse with "AAA" at the latter's house although he claimed that the
sexual intercourse was consensual since they were lovers. The Supreme Court said
that it cannot subscribe to appellant's "sweetheart" theory and exculpate him
from the charge. For one, such claim is self-serving since it was not substantiated by
the evidence on record. And even if "AAA" and appellant were sweethearts, this fact
does not necessarily negate rape. As has been consistently ruled, "a love affair
does not justify rape, for the beloved cannot be sexually violated against her
will. Love is not a license for lust." More importantly, what destroyed the veracity of
appellant's "sweetheart" defense are "AAA's" credible declaration that he is not her
 23

sweetheart and her vehement denial that he courted her. (See also People vs.
Bunagan, 730 SCRA 634, 23 July 2014.)

Q. In rape cases, how can the sweetheart theory be given credence?

A. A sweetheart defense, to be credible, should be substantiated by some documentary

or other evidence of relationship [such as notes, gifts, pictures, mementos] and
the like. (People vs. Dumadag, 652 SCRA 535, 22 June 2011.)

Q. What is the implication of asking forgiveness and offer of compromise in rape

cases?

A. No one would ask for forgiveness unless he had committed some wrong and a plea for
forgiveness may be considered as analogous to an attempt to compromise. Settled is the
rule that in criminal cases, except those involving quasi-offenses or those allowed by
law to be settled through mutual concessions, an offer of compromise by the accused
may be received in evidence as an implied admission of guilt.

Q. What are the recoverable damages in rape cases?

A. The following damages, as enshrined in our jurisprudence, are recoverable by the rape
victim:

a) If the crime of rape is qualified by circumstances which warrant the imposition

of the death penalty by applicable amendatory laws, the complainant should
be awarded ₱75,000.00 for each count of rape as civil indemnity.

b) Moral damages are awarded to rape victims without need of proof other
than the fact of rape under the assumption that the victim suffered moral
injuries for the experience she underwent.

c) Exemplary damages are given by way of public example and to protect the
young from sexual abuse. The moral and exemplary of ₱75,000.00 and
₱30,000.00 consistent with relevant jurisprudence should be awarded to the
victim.

In addition, interest at the rate of six percent (6%) per annum shall be imposed
on all damages awarded from the date of finality of judgment, pursuant to
prevailing jurisprudence.(People vs. Relanes, 648 SCRA 325, 12 April 2011.)

Q. What is the quantum of evidence required against the accused if the rape victim is
mentally retardate?

A. In People vs. Madeo (602 SCRA 425, 2 October 2009), the Supreme Court held that:
The basic postulate in criminal prosecution anchored on the constitution is that the
prosecution is burdened to prove the guilt of the accused for the crime charged beyond
cavil of doubt. The prosecution is burdened to prove conclusively and indubitably not
only that appellant had carnal knowledge of AAA but also that she was a mental
retardate. The conviction of an accused of rape based on the mental retardation of
 24

AAA must be anchored on proof beyond reasonable doubt of her mental

retardation.

Q. Can mental disability of the rape victim be considered as qualifying circumstance

if it was not allege in the information that the accused knew the mental condition
of the victim? Explain.

A. No. As held in People vs. Limio: By itself, the fact that the offended party in a rape case
is a mental retardate does not call for the imposition of the death penalty, unless
knowledge by the offender of such mental disability is specifically alleged and
adequately proved by the prosecution.

This was reiterated in People vs. Obogne (719 SCRA 696, 24 March 2014), when the
Supreme Court held that the mental disability could not be considered as a
qualifying circumstance because the Information failed to allege that appellant
knew of such mental condition at the time of the commission of the crime. Thus,
the trial court and the Court of Appeals correctly found appellant guilty of simple rape
and properly imposed  upon him the penalty of reclusion perpetua pursuant to Article
266-B, par. 1 of the Revised Penal Code. 

Q. What is the requirement in order that the defense of denial shall prosper?

A. Mere denials of involvement in a crime cannot take precedence over the positive
testimony of the offended party. For alibi to prosper, it is not enough for the
defendant to prove that he was somewhere else when the crime was committed; he
must likewise demonstrate that it is physically impossible for him to be at the scene
of the crime at the time. (People vs. Madeo supra.)

Q. Why is it not necessary to prove the elements of force and intimidation in the
prosecution of rape of a mentally retardate woman?

A. Carnal knowledge of a woman who is a mental retardate is rape. A mental

condition of retardation deprives the complainant of that natural instinct to resist a
bestial assault on her chastity and womanhood. For this reason, sexual intercourse with
one who is intellectually weak to the extent that she is incapable of giving consent to the
carnal act already constitutes rape, without requiring proof that the accused used force
and intimidation in committing the act. Only the facts of sexual congress between the
accused and the victim and the latter’s mental retardation need to be proved. (People
vs. Suansing, 704 SCRA 515, 2 September 2013.)

Q. What is the effect of the concurrence of minority and relationship in the crime of
rape? Explain.

A. Under Article 266-B of the Revised Penal Code (RPC), as amended by Republic Act (RA)
No. 8353 or The Anti-Rape Law of 1997, the concurrence of minority and relationship
qualifies the crime of rape. To warrant the imposition of the death penalty however,
both the minority and the relationship must be alleged in the Information and proved
during the trial. (People vs. Ending, 685 SCRA 180, 12 November 2012.)
 25

Q. Is the testimony of the rape victim a sufficient to prove her age in order to qualify
the crime of rape?

A. No. In People vs. Albalate, Jr. (608 SCRA 535, 18 December 2009), the Informations
alleged that the victim was a 12-year old minor when she was ravished by her uncle, a
relative by consanguinity within the 3rd civil degree. The prosecution’s evidence as to
the age of the victim constituted merely of the victim’s testimony. The Supreme Court
found this bare testimony insufficient proof of her age. As held in People vs.
Manalili, “the minority of the victim and her relationship to the offender must be alleged in
the criminal complaint or information and proved conclusively and indubitably as the
crime itself.” The Court also reiterated its ruling in People vs. Tabanggay that xxx there
must be independent evidence proving the age of the victim, other than the
testimonies of prosecution witnesses and the absence of denial by the accused. xxx

Q. What are the guidelines in the appreciation of the age of the rape victim as an
element of the crime or as a qualifying circumstance?

A. In People vs. Asis (618 SCRA 436, 19 April 2010), the Supreme Court reiterated the
guidelines set forth in People vs. Pruna (2002) in appreciating the age, either as an
element of the crime or as a qualifying circumstance, viz:

1. The best evidence to prove the age of the offended party is an original or
certified true copy of the certificate of live birth of such party.

2. In the absence of a certificate of live birth, similar authentic documents such as

baptismal certificate and school records which show the date of birth of the
victim would suffice to prove age.

3. If the certificate of live birth or authentic document is shown to have been lost
or destroyed or otherwise unavailable, the testimony, if clear and credible, of the
victim’s mother or a member of the family either by affinity or consanguinity
who is qualified to testify on matters respecting pedigree such as the exact age
or date of birth of the offended party pursuant to Section 40, Rule 130 of the
Rules on Evidence shall be sufficient under the following circumstances:

a. If the victim is alleged to be below 3 years of age and what is sought to

be proved is that she is less than 7 years old;

b. If the victim is alleged to be below 7 years of age and what is sought to

be proved is that she is less than 12 years old;

c. If the victim is alleged to be below 12 years of age and what is sought to

be proved is that she is less than 18 years old.

4. In the absence of a certificate of live birth, authentic document or the testimony

of the victim’s mother or relatives concerning the victim’s age, the
complainant’s testimony will suffice provided that it is expressly and
clearly admitted by the accused.
 26

5. It is the prosecution that has the burden of proving the age of the offended
party. The failure of the accused to object to the testimonial evidence regarding
age shall not be taken against him.

6. The trial court should always make a categorical finding as to the age of the
victim.

Q. Will the failure of the rape victim to immediately report the incident diminish her
credibility? Explain

A. No. In People vs. Pojo (636 SCRA 545, 6 December 2010), the Supreme Court said
that, in several cases where the delay consisted of years and months, the same were
considered reasonable and did not in any way diminish the credibility of the
complaining witness. Said "delay" was inconsequential and did not touch on the
elements of the crime.

Also, in People vs. Lumaque (697 SCRA 383, 5 June 2013), the Supreme Court
emphasized that: The filing of complaints of rape months, even years, after their
commission may or may not dent the credibility of witness and of testimony, depending
on the circumstances attendant thereto. The Court also explained that the delay does
not diminish the complainant’s credibility or undermine the charges of rape when it can
be attributed to the pattern of fear instilled by the threats of bodily harm, specially by
one who exercises moral ascendancy over the victim. In People vs. Domingo, (2008) it
was ruled that the effect of fear and intimidation instilled in the victim’s mind cannot be
measured against any given hard-and-fast rule such that it is viewed in the context of
the victim’s perception and judgment not only at the time of the commission of the
crime but also at the time immediately thereafter. In any event, "the failure of the
victim to immediately report the rape is not necessarily an indication of a
fabricated charge. (People vs. Tejero, 674 SCRA 244, 20 June 2012).

Further, in People vs. Prodenciado (744 SCRA 429, 10 December 2014), it was said
that: “Time and again, the Court has repeatedly held that it is not incumbent upon
the victim to establish the date when she was raped for purposes of convicting the
perpetrator. This is because “[i]n rape cases, the date of commission is not an essential
element of the offense; what is material is its occurrence.” 

Q. What are the elements of Qualified Rape?

A. The elements of qualified rape are:

(1) sexual congress;

(2) with a woman;
(3) done by force and without consent;
(4) the victim is under 18 years of age at the time of the rape;
(5) the offender is a parent (whether legitimate, illegitimate or adopted) of the
victim.” (People vs. Colentava, 750 SCRA 165, 9 February 2015.)
 27

Q. In incestuous rape, can moral ascendancy be a substitute for the elements of

force, violence and intimidation? Explain.

A. Yes. In People vs. Nachor (638 SCRA 317, 14 December 2010), it was said that: “In
incestuous rape, the father’s "moral ascendancy and influence over his daughter
sufficiently substitutes for force and intimidation." He "takes advantage of his blood
relationship, proximity, ascendancy, and moral influence over his victim both to commit
the rape and to intimidate the victim into silence.

This was reiterated in People vs. Colentava (750 SCRA 165, 9 February 2015).
According to the Court, “settled is the rule that in incestuous rape, the father’s moral
ascendancy and influence over his daughter substitutes for violence and intimidation.”

Q. What are the elements of the special complex crime of Rape with Homicide?

A. In the special complex crime of rape with homicide, the following elements must
concur:

(1) the appellant had carnal knowledge of a woman;

(2) carnal knowledge of a woman was achieved by means of force, threat or

intimidation; and

(3) by reason or on occasion of such carnal knowledge by means of force, threat or

intimidation, the appellant killed a woman.

When the victim is a minor, however, it is sufficient that the evidence proves that the
appellant had sexual intercourse or sexual bodily connections with the victim. (Diega
vs. Court of Appeals, 615 SCRA 399, 15 March 2010; People vs. Villarino, 614 SCRA
372, 5 March 2010.)

Q. Will the absence of spermatozoa lead to a conclusion that rape was not
committed?

A. The absence of spermatozoa does not necessarily result in the conclusion that
rape was not committed. Convictions for rape with homicide have been sustained on
purely circumstantial evidence. In those cases, the prosecution presented other tell-
tale signs of rape such as the laceration and description of the victim’s pieces of
clothing, especially her undergarments, the position of the body when found and
the like.

Q. What are the guiding principles in the review of rape cases? Explain.

A. The guiding principles are as follows:

a) An accusation for rape is easy to make, difficult to prove and even more difficult
to disprove;

b) In view of the intrinsic nature of the crime, the testimony of the complainant
must be scrutinized with utmost caution; and
 28

c) The evidence of the prosecution must stand on its own merits and cannot draw
strength from the weakness of the evidence for the defense. (People vs.
Estrada, 610 SCRA 222, 15 January 2010; See also People vs. Nachor, 638
SCRA 317, 14 December 2010; People vs. Barcela, 637 SCRA 599, 8
December 2010.)

19. Article 293. Who are guilty of robbery.

Q. What are the two ways of committing robbery? Explain.

A. Robbery may be committed in two ways:

(a) with violence against, or intimidation of persons; and

(b) by the use of force upon things.

With respect to robbery by the use of force upon things, same is contained under
Section Two, Chapter 1, Title Ten of the RPC. Falling under said section two, among
others, are Article 299 which refers to robbery in an inhabited house or public building
or edifice devoted to worship and Article 302, to robbery in an uninhabited place or in a
private building.

When the value of the property taken does not exceed 250 pesos, the penalty next lower
in degree shall be imposed. (Marquez vs. People, 686 SCRA 723, 3 December 2012.)

20. Article 294. Robbery with violence against or intimidation of persons—Penalties.

Q. What are the elements of robbery with homicide?

A. To sustain a conviction for robbery with homicide, the prosecution must prove the
following elements:

(1) taking of personal property belonging to another;

(2) with intent to gain;
(3) with the use of violence or intimidation against a person;
and
(4) on the occasion or by reason of the robbery, the crime of
homicide, as used in its generic sense, was committed.

A conviction requires certitude that the robbery is the malefactor’s main purpose and
objective, and the killing is merely incidental to the robbery. The intent to rob must
precede the taking of human life, but the killing may occur before, during, or after
the robbery. (People vs. Baron, 621 SCRA 646, 28 June 2010; Vidar vs. People, 611
SCRA 216, 1 February 2010; See also People vs. Buenamer, 802 SCRA 37, 31
August 2016; People vs. Peralta, 792 SCRA 80, 1 June 2016; People vs. Torres, 735
SCRA 687, 22 September 2014; Crisostomo vs. People, 629 SCRA 590, 1 September
2010.)
 29

Q. What is the corpus delicti in the crime of robbery with homicide? Explain.

A. Corpus delicti refers to the fact of the commission of the crime charged or to the body or
substance of the crime.  In its legal sense, it does not refer to the ransom money in
the crime of kidnapping for ransom or to the body of the person murdered or to the
weapons used in the commission of robbery with homicide.  Since the corpus
delicti is the fact of the commission of the crime, the Court has ruled that even a
single witness’ uncorroborated testimony, if credible may suffice to prove it and
warrant a conviction therefor.  Corpus delicti may even be established by
circumstantial evidence. (People vs. Torres, supra.)

Q. Will the delay in reporting a crime affect the integrity of the witnesses? Explain.

A. No. In Vidar vs. People supra, the Supreme Court said that the delay did not greatly
weaken the credibility of the testimonies of the prosecution witnesses. The delay in
reporting to the police authorities the attendant facts of the crime for which the
petitioners have been charged is consistent with normal human behavior considering
that after a tragic incident, the last thing that the bereaved would want is to provoke
further reprisals from the perpetrators of the felonious act. Although there is a natural
tendency to seek the ends of justice for the treacherous killing of a dearly departed,
personal safety takes priority as dictated by our culture. Moreover, considering private
complainant’s honest belief that petitioners are known to be members of the NPA, the
fear of reprisal from them was ever present which caused her momentary silence. After
all, delay in reporting the occurrence of a crime or other unusual event in rural areas is
well known. Others reveal the perpetrator of the crime only after the lapse of one year or
so to make sure that the possibility of a threat to his life or to his loved ones is already
diminished if not totally avoided. In People vs. Gornes, (1994) the charge against the
appellant was initiated only three and a half years after the commission of the crime,
but the fact of delay alone does not work against the witness.

Q. Explain the Court’s totality of circumstances test in ascertaining whether an out-

of-court identification is positive or derivative?

A. In adopting the totality of circumstances test, the Court takes into consideration the
following factors:

1) the witness’s opportunity to view the criminal at the time of the crime;
2) the witness’s degree of attention at that time;
3) the accuracy of any prior description given by the witness;
4) the level of certainty demonstrated by the witness at the identification;
5) the length of time between the crime and the identification; and
6) the suggestiveness of the identification procedure.

In Vidar vs. People, supra, the Supreme Court scrutinized with great caution the
witnesses manner of identifying petitioners vis-a-vis the foregoing factors and discerned
nothing irregular that would result in an erroneous identification.

Q. If there is no direct evidence of conspiracy in robbery with homicide, can

circumstantial evidence be enough to implicate the conspirator/s? Explain.
 30

A. Yes. In the case of People vs. Baron (621 SCRA 646, 28 June 2017), there was no direct
evidence proving that the appellant conspired and participated in committing the crime.
However, his complicity may be proved by circumstantial evidence, which consists of proof
of collateral facts and circumstances from which the existence of the main fact may be
inferred according to reason and common experience. Circumstantial evidence is sufficient
to sustain conviction if: (a) there is more than one circumstance; (b) the facts from which
the inferences are derived have been established; (c) the combination of all
circumstances is such as to warrant a finding of guilt beyond reasonable doubt. A
judgment of conviction based on circumstantial evidence can be sustained when the
circumstances proved form an unbroken chain that results to a fair and reasonable
conclusion pointing to the accused, to the exclusion of all others, as the perpetrator.

Q. What is the consequence in case homicide was committed on the occasion of the
robbery among the conspirators?

A. In People vs. Baron supra, it was held that: When a homicide takes place by reason of
or on the occasion of the robbery, all those who took part shall be guilty of the special
complex crime of robbery with homicide whether they actually participated in the
killing, unless there is proof that there was an endeavor to prevent the killing. There
was no evidence adduced in this case that the appellant attempted to prevent the killing.
Thus, regardless of the acts individually performed by the appellant and his co-accused,
and applying the basic principle in conspiracy that the "act of one is the act of all," the
appellant is guilty as a co-conspirator. As a result, the criminal liabilities of the appellant
and his co-accused are one and the same. (See also Crisostomo vs. People, 629 SCRA
590, 1 September 2010.)

Q. What are the elements that must be proven by the prosecution for the crime of
robbery with rape?

A. The State shall establish the following essential elements:

a) the taking of personal property is committed with violence or

intimidation against persons;

b) the property taken belongs to another;

c) the taking is done with animo lucrandi; and

d) the robbery is accompanied by rape.

Under Article 294, paragraph 1, when robbery is accompanied by rape, the penalty is
reclusion perpetua to death. However, pursuant to R.A. 9346, the CA correctly modified
the penalty to reclusion perpetua, without eligibility for parole. (People vs. Gabuya,
793 SCRA 1, 8 June 2016.)

21. Article 308. Who are liable for theft.

Q. What are the elements of theft?

A. The elements of the crime of theft as provided for in Article 308 of the RPC are:
(1) there was taking of personal property;
 31

(2) the property belongs to another;

(3) the taking was done with intent to gain;

(4) the taking without the consent of the owner; and

(5) the taking was accomplished without the use of violence against or intimidation
of persons or force upon things. (People vs. Tanchanco, 670 SCRA 130, 18
April 2012; San Miguel Corporation vs. Puzon, Jr., 631 SCRA 48, 22
September 2010.)

22. Article 310. Qualified theft.

Q. What is “grave abuse of confidence” that would qualify theft?

A. Under Article 310 of the RPC, theft becomes qualified when it is, among others,
committed with grave abuse of confidence. The grave abuse of confidence must be
the result of the relation by reason of dependence, guardianship, or vigilance,
between the appellant and the offended party that might create a high degree of
confidence between them which the appellant abused. (People vs. Tanchanco, 670
SCRA 130, 18 April 2012.)

Q. What are the offenses punishable under Section 68 of P.D. No. 705 (Revised
Forestry Code of the Philippines, as amended)?

A. There are two distinct and separate offenses punished under Section 68 of P.D. No. 705,
to wit:

(1) Cutting, gathering, collecting and removing timber or other forest products from
any forest land, or timber from alienable or disposable public land, or from
private land without any authorization; and

(2) Possession of timber or other forest products without the legal documents
required under existing forest laws and regulations. (Villarin vs. People, 656
SCRA 500, 31 August 2011.)

Q. What is the penalty for violations of Section 68 of P.D. No. 705?

A. Violation of Section 68 of P.D. No. 705, as amended, is penalized as qualified theft under
Article 310 in relation to Article 309 of the RPC (Villarin vs. People, supra). However,
the provision of Article 309 on Penalties was amended by Section 81 of R.A. No.
10951 (An Act Adjusting the Amount or the Value of Property and Damage on which a
Penalty is Based, and the Fines Imposed Under the Revised Penal Code, Amending for the
Purpose Act No. 3815, otherwise known as “The Revised Penal Code”, As Amended,
approved on 29 August 2017), to wit:

Article 309. Penalties.—Any person guilty of theft shall be punished

by:
 32

1. The penalty of prisión mayor in its minimum and medium

periods, if the value of the thing stolen is more than One million two hundred
thousand pesos (P1,200,000) but does not exceed Two million two hundred
thousand pesos (P2,200,000); but if the value of the thing stolen exceeds the
latter amount, the penalty shall be the maximum period of the one prescribed in
this paragraph, and one (1) year for each additional One million pesos
(P1,000,000), but the total of the penalty which may be imposed shall not
exceed twenty (20) years. In such cases, and in connection with the accessory
penalties which may be imposed and for the purpose of the other provisions of
this Code, the penalty shall be termed prisión mayor or reclusion temporal, as
the case may be.

2. The penalty of prisión correccional in its medium and

maximum periods, if the value of the thing stolen is more than Six hundred
thousand pesos (P600,000) but does not exceed One million two hundred
thousand pesos (P1,200,000).

3. The penalty of prisión correccional in its minimum and medium

periods, if the value of the property stolen is more than Twenty thousand pesos
(P20,000) but does not exceed Six hundred thousand pesos (P600,000).

4. Arresto mayor in its medium period to prisión correccional in

its minimum period, if the value of the property stolen is over Five thousand
pesos (P5,000) but does not exceed Twenty thousand pesos (P20,000).

5. Arresto mayor to its full extent, if such value is over Five

hundred pesos (P500) but does not exceed Five thousand pesos (P5,000).

6. Arresto mayor in its minimum and medium periods, if such

value does not exceed Five hundred pesos (P500).

7. Arresto menor or a fine not exceeding Twenty thousand pesos

(P20,000), if the theft is committed under the circumstances enumerated in
paragraph 3 of the next preceding article and the value of the thing stolen does
not exceed Five hundred pesos (P500). If such value exceeds said amount, the
provisions of any of the five preceding subdivisions shall be made applicable.

8. Arresto menor in its minimum period or a fine of not exceeding

Five thousand pesos (P5,000), when the value of the thing stolen is not over
Five hundred pesos (P500), and the offender shall have acted under the impulse
of hunger, poverty, or the difficulty of earning a livelihood for the support of
himself or his family.

23. Article 315. Swindling (estafa).

Q. How is estafa committed in general? Explain.

A. Estafa is generally committed when:

(a) the accused defrauded another by abuse of confidence, or by means of deceit,

and
 33

(b) the offended party or a third party suffered damage or prejudice capable of
pecuniary estimation.
Deceit is the false representation of a matter of fact, whether by words or conduct, by
false or misleading allegations, or by concealment of that which should have been
disclosed which deceives or is intended to deceive another so that he shall act upon it to
his legal injury. (Tanenggee vs. People, 699 SCRA 639, 26 June 2013.)

Q. What are the elements of estafa through abuse of confidence under Art. 315(1)(b)
of the RPC?

A. The elements are as follows:

(a) that money, goods or other personal property is received by the offender
in trust or on commission, or for administration, or under any other
obligation involving the duty to make delivery of or to return the same;

(b) that there be misappropriation or conversion of such money or property by

the offender, or denial on his part of such receipt;

(c) that such misappropriation or conversion or denial is to the prejudice of

another; and

(d) there is demand by the offended party to the offender. (People vs. Go, 732
SCRA 216, 6 August 2014; D’Aigle vs. People, 675 SCRA 206, 27 June 2012.)

Q. Explain the words “convert” and “misappropriate.”

A. The words ‘convert’ and ‘misappropriate’ connote an act of using or disposing of

another’s property as if it were one’s own, or of devoting it to a purpose or use different
from that agreed upon.  To misappropriate for one’s own use includes not only
conversion to one’s personal advantage, but also every attempt to dispose of the
property of another without right. x x x In proving the element of conversion or
misappropriation, a legal presumption of misappropriation arises when the accused
fails to deliver the proceeds of the sale or to return the items to be sold and fails to give
an account of their whereabouts. Thus, the mere presumption of misappropriation or
conversion is enough to conclude that a probable cause exists for the indictment x x x.”
(People vs. Go, supra.)

Q. Can the prosecution prove through circumstantial evidence the element of

misappropriation or conversion?

A. Yes. Misappropriation or conversion may be proved by the prosecution by direct

evidence or by circumstantial evidence. The failure to account upon demand, for funds
or property held in trust, is circumstantial evidence of misappropriation.

In D’Aigle vs. People, supra, the petitioner failed to account for, upon demand, the
properties of SPI which were received by him in trust. According to the Supreme Court,
this already constitutes circumstantial evidence of misappropriation or conversion of
said properties to petitioners own personal use. Even if petitioner merely retained the
properties for the purpose of preserving his right of lien over them, same is immaterial
 34

because, to reiterate, failure to return upon demand the properties which one has the
duty to return is tantamount to appropriating the same for his own personal use.
Q. In the prosecution for estafa, when is demand not necessary? Explain.

A. In People vs. Go, supra, the Supreme Court said that, in a prosecution for estafa,
demand is not necessary where there is evidence of misappropriation or
conversion. Thus, strictly speaking, demand is not an element of the offense of estafa
through abuse of confidence; even a verbal query satisfies the requirement. Indeed, in
several past rulings of the Court, demand was not even included as an element of the
crime of estafa through abuse of confidence, or under paragraph 1(b). The accused may
therefore be convicted of the felony under Article 315, paragraph 1(b) of the Revised
Penal Code if the prosecution proved misappropriation or conversion by the accused of
the money or property subject of the Information. 

Q. How is estafa under Art. 315(2)(a) of the RPC committed?

A. Article 315, par. 2(a) of the Revised Penal Code penalizes fraud or deceit when
committed by means of using fictitious name, or actions, falsely pretending to possess
power, influence, qualification, property, credit, agency, business or imaginary
transactions, or by means of other similar deceits, executed prior to or simultaneously
with the commission of fraud. (Franco vs. People, 643 SCRA 474, 16 February 2011.)

Q. What are the elements of estafa under Art. 315(2)(a) of the RPC?

A. The elements of the crime of estafa under the foregoing provision are:

(1) there must be a false pretense, fraudulent acts or fraudulent means;

(2) such false pretense, fraudulent act or fraudulent means must be made or
executed prior to or simultaneously with the commission of the fraud;

(3) the offended party must have relied on the false pretense, fraudulent act or
fraudulent means and was thus induced to part with his money or property; and

(4) as a result thereof, the offended party suffered damage. (Franco vs. People,
supra.)

Q. What are the elements of estafa through falsification of public document under Art.
315(2)(a) of the RPC?

A. In Ansaldo vs. People (616 SCRA 556, 26 March 2010), the Supreme Court said that,
for the petitioner to be convicted of the complex crime of estafa through falsification of
public document, all the elements of the two crimes of estafa and falsification of public
document must exist.

To secure a conviction for estafa under Article 315, paragraph 2(a) of the RPC, the
following requisites must concur:
 35

(1) The accused made false pretenses or fraudulent representations

as to his power, influence, qualifications, property, credit, agency,
business or imaginary transactions;

(2) The false pretenses or fraudulent representations were made

prior to or simultaneous with the commission of the fraud;

(3) The false pretenses or fraudulent representations constitute the

very cause which induced the offended party to part with his
money or property;

(4) That as a result thereof, the offended party suffered damage.

On the other hand, the following requisites must concur to convict an accused of the
crime of falsification of a public document penalized under Article 172 of the RPC:

(1) That the offender is a private individual or a public officer or

employee who took advantage of his official position;

(2) That he committed any of the acts of falsification enumerated in

Article 171 of the RPC (which in this case involves forging a
signature);

(3) That the falsification was committed in a public or official or

commercial document.

Q. Is novation a ground for extinguishing criminal liability in estafa cases? Explain.

A. No. In Metropolitan Bank and Trust Company vs. Reynado (627 SCRA 88, 9 August
2010), the Supreme Court said that novation is not one of the grounds prescribed by the
Revised Penal Code for the extinguishment of criminal liability.

In a catena of cases, it was ruled that criminal liability for estafa is not affected by a
compromise or novation of contract. In Firaza vs. People (2007) and Recuerdo vs.
People,(2006) the Court ruled that in a crime of estafa, reimbursement or belated
payment to the offended party of the money swindled by the accused does not
extinguish the criminal liability of the latter. It was also held in People vs. Moreno
(1999) and in People vs. Ladera (2000) that "criminal liability for estafa is not affected
by compromise or novation of contract, for it is a public offense which must be
prosecuted and punished by the Government on its own motion even though complete
reparation should have been made of the damage suffered by the offended party."
Similarly in the case of Metropolitan Bank and Trust Company vs. Tonda, (2000) it
was held that in a crime of estafa, reimbursement of or compromise as to the
amount misappropriated, after the commission of the crime, affects only the civil
liability of the offender, and not his criminal liability.

Q. Can a person be held criminally liable separately for illegal recruitment in large
scale and Estafa for the same acts?
 36

A. Yes. Illegal recruitment in large scale is punishable under a special law, the Labor Code,
and estafa is punishable under Art. 315 of the Revised Penal Code, a general law.
(People vs. Martinez, 614 SCRA 254, 5 March 2010.)

Q. If the accused in illegal recruitment in large scale and estafa returned portion of
the money of the complainants, will it affect his criminal liability?

A. No. In People vs. Martinez, supra, the Supreme Court held that the criminal liability for
estafa already committed is not affected by the fact that the accused returned a portion
of their money. Compromise or novation of contract pertains and affects only the civil
aspect of the case. Estafa is a public offense that must be prosecuted and punished by
the Court in its motion even though complete reparation should have been made of the
damage suffered by the offended party.

24. Article 336. Acts of Lasciviousness.

Q. What are the elements of acts of lasciviousness?

A. The elements are as follows:

1. That the offender commits any acts of lasciviousness or lewdness;

2. 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; or

c) When the offended party is under 12 years of age; and

3. That the offended party is another person of either sex. (People vs. Lomaque,
697 SCRA 383, 5 June 2013.)

25. Article 353. Definition of libel.

Q. What are the elements of libel?

A. The crime of libel has the following elements:

1. imputation of a crime, vice or defect, real or imaginary or any act, omission,

condition, status or circumstance;

2. the imputation must be malicious;

3. it must be given publicity; and

4. the victim must be identifiable. (Lopez vs. People, 642 SCRA 668, 14 February
2011; Corpuz vs. Del Rosario, 638 SCRA 369, 15 December 2010.)
 37

Q. What are the elements of an imputation in order to be libelous?

A. For an imputation to be libelous, the following requisites must concur:

a) it must be defamatory;
b) it must be malicious;
c) it must be given publicity; and
d) the victim must be identifiable. (Lagaya vs. People, 677 SCRA 478, 25 July
2012.)

Q. When can an allegation be considered defamatory? Explain.

A. An allegation is considered defamatory if it ascribes to a person the commission of a

crime, the possession of a vice or defect, real or imaginary, or any act, omission,
condition, status or circumstance which tends to dishonor or discredit or put him in
contempt or which tends to blacken the memory of one who is dead. In determining
whether a statement is defamatory, the words used are to be construed in their
entirety and should be taken in their plain, natural and ordinary meaning as they
would naturally be understood by persons reading them, unless it appears that they
were used and understood in another sense. (Lagaya vs. People, supra; See also
Lopez vs. People, supra.)

Q. Does personal hurt or embarrassment or offense, even if real, constitutes

defamation?

A. Personal hurt or embarrassment or offense, even if real, is not automatically equivalent

to defamation, words which are merely insulting are not actionable as libel or slander
per se, and mere words of general abuse however opprobrious, ill-natured, or vexatious,
whether written or spoken, do not constitute bases for an action for defamation in the
absence of an allegation for special damages. The fact that the language is offensive to
the plaintiff does not make it actionable by itself, as the Court ruled in MVRS
Publications, Inc. vs. Islamic Da’ Wah Council of the Phils., Inc. (2003) (Lopez vs.
People, supra.)

26. Article 354. Requirement for publicity.

Q. How can malice be established in libel?

A. Article 354 of the RPC provides that every defamatory imputation is presumed to be
malicious, even if it be true, if no good intention and justifiable motive for making it is
shown. Thus, malice, which is the doing of an act conceived in the spirit of mischief or
criminal indifference to the rights of others or which must partake of a criminal or
wanton nature, is presumed from any defamatory imputation, particularly when it
injures the reputation of the person defamed.

In Lagaya vs. People, supra, the Court had perused the second paragraph contained in
the subject memorandum and since the same, on its face, shows the injurious nature of
the imputations to the private respondent, there is then a presumption that petitioner
acted with malice.   To buttress his defense of lack of malice, petitioner claimed that
when he issued the memorandum, he was motivated by good intention. Such goodness,
 38

however, is not sufficient justification considering the details of the entire contents of
the memorandum. Thus, in United States vs. Prautch,(1908) it was held that "the
existence of justifiable motives is a question which has to be decided by taking into
consideration not only the intention of the author of the publication but all the other
circumstances of each particular case.”

Q. Explain publication under the law on libel.

A. Publication, in the law of libel, means the making of the defamatory matter, after it
has been written, known to someone other than the person to whom it has been
written.

In Lagaya vs. People, supra, on the basis of the evidence on record and as found by
the Sandiganbayan, there is no dispute that copies of the memorandum containing the
defamatory remarks were circulated to all the regional offices of the HPP. Evidence also
showed that petitioner allowed the distribution of the subject memorandum and even
read the contents thereof before a gathering at a meeting attended by more or less 24
participants thereat. The element of publication along with the other essential elements
having been proven, petitioner was found guilty beyond reasonable doubt of the crime
of libel.

Q. What must be established in invoking paragraph 1 of Art. 354 as privilege

communication?

A. Before a statement would come within the ambit of a privileged communication under
paragraph 1 of Article 354, it must be established that:

1) the person who made the communication had a legal, moral or social duty to
make the communication, or at least, had an interest to protect, which interest
may either be his own or of the one to whom it is made;

2) the communication is addressed to an officer or a board, or superior, having

some interest or duty in the matter, and who has the power to furnish the
protection sought; and

3) the statements in the communication are made in good faith and without
malice. 

All these requisites must concur. (Lagaya vs. People, supra.)

27. Article 361. Proof of the truth.

Q. Will the offender be liable for libel if the defamatory imputations were made
against a public elective official with respect to the discharge of his official duties
and functions which were later proven to be true? Explain.

A. Pursuant to Article 361 of the Revised Penal Code, 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
 39

and for justifiable ends. As the Court held in United States vs. Bustos, (1918) the
policy of a public official may be attacked, rightly or wrongly with every argument
which ability can find or ingenuity invent. The public officer "may suffer under a
hostile and an unjust accusation; the wound can be assuaged by the balm of a
clear conscience. A public official must not be too thin-skinned with reference to
comments upon his official acts."
 40

-- SPECIAL LAWS --

I. VIOLATION OF B.P. BLG. 22 (BOUNCING CHECKS LAW)

Q. What are the essential elements in the prosecution for violations of B.P. Blg. 22?
Explain.

A. In order to successfully hold an accused liable for violation of B.P. 22, the
following essential elements must be present:

(1) the making, drawing, and issuance of any check to apply for account or for
value;

(2) the knowledge of the maker, drawer, or issuer that at the time of issue he
does not have sufficient funds in or credit with the drawee bank for the
payment of the check in full upon its presentment; and

(3) the subsequent dishonor of the check by the drawee bank for insufficiency
of funds or credit or dishonor for the same reason had not the drawer,
without any valid cause, ordered the bank to stop payment. (Rico vs. People,
392 SCRA 61, 18 November 2002).
Of the three (3) elements, the second element is the hardest to prove as it involves a
state of mind. Thus, Section 2 of B.P. 22 creates a presumption of knowledge of
insufficiency of funds, which, however, arises only after it is proved that the issuer had
received a written notice of dishonor and that within five days from receipt thereof,
he failed to pay the amount of the check or to make arrangements for its payment.
(Chua vs. People, 762 SCRA 523, 13 July 2015.)

Q. Explain the Notice of Dishonor as an indispensable element in the prosecution of

B.P. Blg. 22 cases.

A. In Chua vs. People supra, the Supreme Court cited several cases previously decided by
the Court on the matter.

First, in Danao vs. Court of Appeals, (2001) the Court reiterated its discussion in King
vs. People, (1999) on the importance of proving the date of actual receipt of the notice
of dishonor, viz:

To hold a person liable under B.P. Blg. 22, it is not enough to establish that a check
issued was subsequently dishonored. It must be shown further that the person who
issued the check knew '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 in full upon its
presentment.' Because this element involves a state of mind which is difficult to
establish, Section 2 of the law creates a prima facie presumption of such knowledge, as
follows:
 41

Section 2. Evidence of knowledge of insufficient funds.— The making,

drawing and issuance of a check payment of which is refused by the drawee
because of insufficient funds in or credit with such bank, when presented within
ninety (90) days from the date of the check, shall be prima facie evidence of
knowledge of such insufficiency of funds or credit unless such maker or drawer
pays the holder thereof the amount due thereon, or makes arrangements for
payment in full by the drawee of such check within five (5) banking days after
receiving notice that such check has not been paid by the drawee.

Thus, the Court further ruled in King that, "in order to create the prima
facie presumption that the issuer knew of the insufficiency of funds, it must be shown
that he or she received a notice of dishonor and, within five banking days
thereafter, failed to satisfy the amount of the check or make arrangement for its
payment."

Indeed, the prima facie presumption in Section 2 of B.P. Blg. 22 "gives the accused an
opportunity to satisfy the amount indicated in the check and thus avert prosecution.”
This opportunity, as stated in Lozano vs. Martinez, (1986) serves to “mitigate the
harshness of the law in its application.

In other words, if such notice of non-payment by the drawee bank is not sent to the
maker or drawer of the bum check, or if there is no proof as to when such notice was
received by the drawer, then the presumption or prima facie evidence as provided
in Section 2 of B.P. Blg. 22 cannot arise, since there would simply be no way of
reckoning the crucial 5-day period.” (Italics in the original, emphasis supplied)(Chua
vs. People, supra.)

Q. Is the acquittal of the accused in B.P. 22 cases includes exoneration of civil

liability? Explain.

A. No. In Chua vs. People supra, it was held that the acquittal of the accused does not
entail the extinguishment of his civil liability for the dishonored checks. San Mateo vs.
People, 692 SCRA 660 (6 March 2013).An acquittal based on lack of proof beyond
reasonable doubt does not preclude the award of civil damages. For this reason, the
acquitted accused must be directed to restitute the total amount of the face value of all
the checks subject of the case with legal interest at the rate of 12% per annum reckoned
from the time the said checks became due and demandable up to June 30, 2013 and
6% per annum from July 1, 2013 until fully paid. (Nacar vs. Gallery Frames, 703 SCRA
439, 13 August 2013).

II. VIOLATION OF R.A. NO. 3019 (THE ANTI-GRAFT AND CORRUPT PRACTICES ACT)

Q. What constitute public officer’s corrupt practices under Section 3(e) of R.A. No.
3019?

A. Section 3(e) of RA 3019 provides:

Section 3. Corrupt practices of public officers.— In addition to acts or

omissions of public officers already penalized by existing law, the following shall
constitute corrupt practices of any public officer and are hereby declared to be unlawful:
 42

xxxx

(e) Causing any undue injury to any party, including the Government, or
giving any private party any unwarranted benefits, advantage or preference in the
discharge of his official, administrative or judicial functions through manifest partiality,
evident bad faith or gross inexcusable negligence. This provision shall apply to officers
and employees of offices or government corporations charged with the grant of licenses
or permits or other concessions.

Q. What are the elements of the offense under Section 3(e) of RA 3019?

A. The elements of the offense are as follows:

(1) that the accused are public officers or private persons charged in conspiracy
with them;

(2) that said public officers commit the prohibited acts during the performance of
their official duties or in relation to their public positions;

(3) that they caused undue injury to any party, whether the Government or a
private party;

(4) that such injury is caused by giving unwarranted benefits, advantage or

preference to such parties; and

(5) that the public officers have acted with manifest partiality, evident bad faith or
gross inexcusable negligence. (Bustillo vs. People, 620 SCRA 483, 12 May
2010; See also Lumauig vs. People, 729 SCRA 191, 7 July 2014.)

Q. Explain the doctrine of presumption of regularity as applied to public officers or

employees in cases of violations of R.A. No. 3019.

A. In Bustillo vs. People (620 SCRA 483, 12 May 2010), the Supreme Court, in acquitting
the accused (petitioners), held that: Petitioners have in their favor the presumption of
regularity in the performance of official duties which the records failed to rebut. The
presumption of regularity of official acts may be rebutted by affirmative evidence of
irregularity or failure to perform a duty. The presumption, however, prevails until it is
overcome by no less than clear and convincing evidence to the contrary. Thus, unless
the presumption in rebutted, it becomes conclusive. Every reasonable intendment
will be made in support of the presumption and in case of doubt as to an officer’s
act being lawful or unlawful, construction should be in favor of its lawfulness.

Q. What must be proven to successfully prosecute violation of Section 3(g) of R.A. No.
3019?

A. The following elements must be proven:

1) the accused is a public officer;

 43

2) the public officer entered into a contract or transaction on behalf of the

government; and

3) the contract or transaction was grossly and manifestly disadvantageous to the

government. 

Q. Can private persons be charged with violation of Section 3(g) of RA 3019?

A. Yes. In Singian, Jr. vs. Sandiganbayan, 3rd Division (706 SCRA 451, 30 September
2013), the Supreme Court ruled that private persons may likewise be charged with
violation of Section 3(g) of RA 3019 if they conspired with the public officer. Thus, if
there is an allegation of conspiracy, a private person may be held liable together with
the public officer, in consonance with the avowed policy of the Anti-Graft and Corrupt
Practices Act which is to repress certain acts of public officers and private persons alike
which may constitute graft or corrupt practices or which may lead thereto.

III. VIOLATION OF R.A. NO. 6539 (ANTI-CARNAPPING ACT OF 1972)

Q. Define carnapping under R.A. No. 6539.

A. Section 2 of RA 6539 defines carnapping as "the taking, with intent to gain, of a motor
vehicle belonging to another without the latter's consent, or by means of violence
against or intimidation of persons, or by using force upon things. (People vs. Mallari,
694 SCRA 284, 1 April 2013.)

Q. What is the penalty for the special complex crime of carnapping with homicide?

A. The crime of carnapping with homicide is punishable under Section 14 of R.A. No. 6539
as amended by R.A. No. 7659. It provides that:

Any person who is found guilty of carnapping, as this term is

defined in Section Two of this Act, shall, irrespective of the value of motor
vehicle taken, be punished by imprisonment for not less than fourteen
years and eight months and not more than seventeen years and four
months, when the carnapping is committed without violence or
intimidation of persons, or force upon things; and by imprisonment for
not less than seventeen years and four months and not more than thirty
years, when the carnapping is committed by means of violence against or
intimidation of any person, or force upon things; and the penalty of
reclusion perpetua to death shall be imposed when the owner, driver or
occupant of the carnapped motor vehicle is killed or raped in the course of
the commission of the carnapping or on the occasion thereof.  (People vs.
Mallari, supra.)

Q. What must be proven in of special complex crime of carnapping with homicide?

A. To prove the special complex crime of carnapping with homicide, there must be proof
not only of the essential elements of carnapping, but also that it was the original
criminal design of the culprit and the killing was perpetrated "in the course of the
commission of the carnapping or on the occasion thereof. (People vs. Mallari, supra.)
 44

IV. VIOLATION OF R.A. NO. 7610 (Special Protection of Children Against Abuse,
Exploitation and Discrimination Act)

Q. Can a convicted accused for violation of R.A. No. 7610, be entitled to the benefits
of the Indeterminate Sentence Law? Explain.

A. Yes. In Pinlac vs. People (774 SCRA 627, 11 November 2015), it was held that: “Under
Section 5, Article III of RA 7610, the penalty of reclusion temporal in its medium period
to reclusion perpetua shall be imposed on those who commit acts of lasciviousness with
a child exploited in prostitution or subjected to other sexual abuse. Notwithstanding
the fact that RA 7610 is a special law, the petitioner in this case may enjoy the
benefits of the Indeterminate Sentence Law. In applying the Indeterminate
Sentence Law, the penalty next lower in degree is prision mayor in its medium
period to reclusion temporal in its minimum period. Thus, the CA correctly
imposed the indeterminate sentence of eight (8) years and one (1) day of prision
mayor as minimum, to seventeen (17) years, four (4) months and one (1) day
of reclusion temporal as maximum.

Q. What is sexual abuse and lascivious conduct in contemplation of R.A. No. 7610?
Explain.

A. Sexual abuse includes the employment, use, persuasion, inducement, enticement or

coercion of a child to engage in, or assist another person to engage in, sexual intercourse
or lascivious conduct or the molestation, prostitution, or incest with children.

Lascivious conduct means the intentional touching, either directly or through the
clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, 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. (People vs. Gaduyon, 709 SCRA 129, 11 November 2013;
People vs. Lomaque, 697 SCRA 383, 5 June 2013.)

Q. What is the criminal liability of a person who commits act of sexual intercourse or
lascivious conduct with a child exploited in prostitution or subjected to other
sexual abuse?

A. Section 5(b), Article III of RA 7610, pertinently provides:

Sec. 5. Child Prostitution and Other Sexual Abuse.— Children,

whether male or female, who for money, profit, or any other consideration or
due to the coercion or influence of any adult, syndicate or group, indulge in
sexual intercourse or lascivious conduct, are deemed to be children exploited in
prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion

perpetua shall be imposed upon the following:

xxxx
 45

(b) Those who commit the act of sexual intercourse or

lascivious conduct with a child exploited in prostitution or subjected to
other sexual abuse: Provided, That when the victim is under twelve (12)
years of age, the perpetrators shall be prosecuted under Article 335,
paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the
Revised Penal Code, for rape or lascivious conduct, as the case may be:
Provided, that the penalty for lascivious conduct when the victim is under
twelve (12) years of age shall be reclusion temporal in its medium period;
x x x. (Emphasis supplied)(People vs. Gaduyon, supra.)

Q. What are the requisites for violation of Section 5(b), Art. III of R.A. No. 7610?

A. In paragraph (b), the following requisites must concur:

(1) the accused commits the act of sexual intercourse or lascivious conduct;

(2) the act is performed with a child exploited in prostitution or subjected to other
sexual abuse; and

(3) the child, whether male or female is below eighteen (18) years of age. 

This paragraph covers not only a situation where a child is abused for profit but also
one in which a child, through coercion, intimidation or influence, engages in sexual
intercourse or lascivious conduct. (People vs. Gaduyon, supra.)

V. VIOLATION OF R.A. NO. 8042 (THE MIGRANT WORKERS AND OVERSEAS FILIPINOS
ACT OF 1995, AS AMENDED)

Q. Define recruitment and placement.

A. Recruitment and placement refers to any act of canvassing, enlisting, contracting,

transporting, utilizing, hiring, or procuring workers, and includes referrals, contract
services, promising or advertising for employment, locally or abroad, whether for profit
or not: Provided, That any person or entity which, in any manner, offers or promises for
a fee employment to two or more persons shall be deemed engaged in recruitment and
placement.

Q. Is mere referral considered as an act of recruitment and placement? Explain.

A. Yes. Mere referral is considered as an act of recruitment as explicitly enumerated in

Article 13(b) of the Labor Code, "recruitment and placement" includes the act of
making referrals, whether for profit or not. Even if the person did no more than
"suggest" to complainants where they could apply for overseas employment, his act
constituted "referral" within the meaning of Article 13(b) of the Labor Code.

Referral is the act of passing along or forwarding of an applicant for employment after
an initial interview of a selected applicant for employment to a selected employer,
placement officer or bureau. (People vs. Martinez, 614 SCRA 254, 5 March 2010.)
 46

Q. What is Illegal Recruitment?

A. Article 38 of the Labor Code defines "illegal recruitment" as:

Article 38. Illegal Recruitment.—

(a) Any recruitment activities, including the prohibited practices

enumerated under Article 34 of this Code, to be undertaken by non-licensees or
non-holders of authority shall be deemed illegal and punishable under Article
39 of this Code. x x x

(b) Illegal recruitment when committed by a syndicate or in large

scale shall be considered an offense involving economic sabotage and shall be
penalized in accordance with Article 39 hereof.

Illegal recruitment is deemed committed by a syndicate if carried out

by a group of three (3) or more persons conspiring and/or confederating with
one another in carrying out any unlawful or illegal transaction, enterprise or
scheme defined under the first paragraph hereof. Illegal recruitment is deemed
committed in large scale if committed against three (3) or more persons
individually or as a group.

Q. What are the elements of illegal recruitment in large scale?

A. The offense of illegal recruitment in large scale has the following elements:

(1) the person charged undertook any recruitment activity as defined under Section
6 of RA 8042;

(2) accused did not have the license or the authority to lawfully engage in the
recruitment of workers; and

(3) accused committed the same against three or more persons individually or as a
group. (People vs. Mateo, 757 SCRA 198, 22 April 2015.)

Q. Is money a material element in the prosecution of illegal recruitment? Explain.

A. No. Money is not material to a prosecution for illegal recruitment considering that
the definition of "illegal recruitment" under the law includes the phrase "whether
for profit or not." Besides, even if there is no receipt for the money given by the private
complainants to appellants, the former's respective testimonies and affidavits clearly
narrate the latter's involvement in the prohibited recruitment. (People vs. Mateo
supra.)

Q. Can a person who is charged with illegal recruitment be also prosecuted for estafa
under the Revised Penal Code for the same acts?

A. Yes. Well-settled is the rule that a person convicted for illegal recruitment under the
may, for the same acts, be separately convicted for estafa under Article 315, par. 2(a) of
the Revised Penal Code. The elements of estafa are:
 47

(1) the accused defrauded another by abuse of confidence or by means of deceit;

and

(2) the offended party or a third party suffered damage or prejudice capable of
pecuniary estimation."

VI. VIOLATION OF R.A. NO. 9165 (COMPREHENSIVE DANGEROUS DRUGS ACT OF

2002)

Section 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and

Transportation of Dangerous Drugs and/or Controlled Precursors and Essential
Chemicals.

Section 11. Possession of Dangerous Drugs.

ILLEGAL SALE OF DANGEROUS DRUGS

Q. What are the elements of Illegal Sale of dangerous drugs?

A. The offense of illegal sale of dangerous drugs has the following elements:

(1) identities of the buyer and seller, object, and consideration of the sale; and

(2) delivery of the thing sold and the payment therefor.

What is material to the prosecution for illegal sale of dangerous drugs is the proof that
the transaction or sale actually occurred, coupled with the presentation in court of the
substance seized as evidence. (People vs. Alberto, 611 SCRA 706, 5 February 2010;
See also People vs. Abenes, 796 SCRA 56, 7 July 2016; People vs. Cunanan, 753
SCRA 275, 16 March 2015; People vs. Nepomuceno, 750 SCRA 209, 9 February
2015; People vs. Opiana, 745 SCRA 144, 12 January 2015; People vs. Dela Cruz,
743 SCRA 667, 3 December 2014; People vs. Baturi, 734 SCRA 55, 1 September
2014; People vs. Marcelo, 733 SCRA 223, 18 August 2014; People vs. Montevirgen,
712 SCRA 459, 11 December 2013; People vs. Gonzaga, 632 SCRA 551, 11 October
2010; People vs. Berdadero, 622 SCRA 196, 29 June 2010.)

Q. What must the prosecution do to successfully prosecute a case involving the

illegal sale of dangerous drugs?

A. (1) The transaction or sale that took place must be proven;

(2) The corpus delicti or the illicit drug presented as evidence; and

(3) The buyer and seller must be identified.

The commission of the offense of illegal sale of dangerous drugs requires merely the
consummation of the selling transaction, which happens the moment the buyer receives
the drug from the seller. Settled is the rule that as long as the police officer went
through the operation as a buyer and his offer was accepted by appellant and the
dangerous drugs delivered to the former, the crime is considered consummated by the
delivery of the goods. (People vs. Aplat, 720 SCRA 260, 31 March 2014.)
 48

Q. What are the grounds for the acquittal of the accused in cases of illegal sale of
dangerous drugs?

A. In People vs. Ismael (G.R. No. 208093, 20 February 2017), the Supreme Court found
that the prosecution failed to:

(1) overcome the presumption of innocence which appellant enjoys;

(2) prove the corpus delicti of the crime;
(3) establish an unbroken chain of custody of the seized drugs; and
(4) offer any explanation why the provisions of Section 21, RA 9165 were not
complied with.

Thus, the Court was constrained to acquit the appellant based on reasonable doubt.

Q. What is buy bust operation in drug cases? Explain.

A. In People vs. Aplat supra, it was defined as a form of entrapment whereby ways and
means are resorted to for the purpose of trapping and capturing the lawbreakers in the
execution of their criminal plan." In this regard, police authorities are given a wide
discretion in the selection of effective means to apprehend drug dealers and the
Court is hesitant to establish on a priori basis what detailed acts they might
credibly undertake in their entrapment operations for there is no prescribed
method on how the operation is to be conducted. As ruled in People vs. Salazar, a
buy-bust operation deserves judicial sanction as long as it is carried out with due regard
to constitutional and legal safeguards.

Q. Is prior coordination of the police officers with PDEA indispensable in the conduct
of buy-bust operation? Explain.

A. No. In People vs. Gabuya (750 SCRA 560, 16 February 2015), the Supreme Court
clarified that: The failure of the police officers to coordinate with the PDEA is not a
serious procedural defect. It will not result in appellant’s exoneration.  It is not a fatal
flaw since coordination of the buy-bust operation with the PDEA is not an indispensable
element of the crimes of illegal sale and possession of dangerous drugs such as shabu.

Q. Is the arrest of the accused illegal if made by the police without prior
coordination with PDEA?

A. No. Section 86 of RA No. 9165 deals with inter-agency relations of the PNP and other
law enforcement agencies with the PDEA. It is an administrative provision designating
the PDEA as the lead agency in dangerous drugs cases. The Court has already ruled that
nothing in RA No. 9165 suggests that it is the intention of the legislature to make an
arrest in drugs cases illegal if made without the participation of the PDEA. The
implementing rules and regulations of RA No. 9165, Section 86(a) thereof clearly states:

(a) Relationship/Coordination between the PDEA and Other Agencies.— The

PDEA shall be the lead agency in the enforcement of the Act, while the PNP,
the NBI and other law enforcement agencies shall continue to conduct
anti-drug operations in support of the PDEA xxx Provided, finally, that
nothing in this IRR shall deprive the PNP, the NBI, other law enforcement
 49

personnel and the personnel of the Armed Forces of the Philippines (AFP)
from effecting lawful arrests and seizures in consonance with the
provisions of Section 5, Rule 113 of the Rules of Court. (Emphasis
supplied)

Q. Will the absence of prior surveillance affect the legality of the buy-bust operation
for drug cases?

A. No. In People vs. Robelo (686 SCRA 417, 26 November 2012), the Supreme Court said
that a prior surveillance, much less a lengthy one, is not necessary during an
entrapment. There is no textbook method of conducting buy-bust operations. The Court
has left to the discretion of police authorities the selection of effective means to
apprehend drug dealers. In this case, the buy-bust operation was set up precisely to test
the veracity of the informant’s tip and to arrest the malefactor if the report proved to be
true. Thus in one case People vs. Gonzales, 430 Phil. 504 (2002) we emphasized our
refusal to establish on a priori basis what detailed acts the police authorities might
credibly undertake in their entrapment operations.

Q. Distinguish inducement or instigation from entrapment?

A. In inducement or instigation — the criminal intent originates in the mind of the

instigator and the accused is lured into the commission of the offense charged in order
to prosecute him. The instigator practically induces the would-be accused into the
commission of the offense and himself becomes a co-principal. This is distinguished
from entrapment wherein ways and means are resorted to for the purpose of
capturing the lawbreaker in flagrante delicto. (People vs. Gayoso, G.R. No. 206590, 27
March 2017.)

Q. Is the conduct of a test-buy operation by the police officers for illegal drugs
prohibited by law? Explain.

A. No. A "test-buy" operation is not prohibited by law. It does not amount to instigation.
The solicitation of drugs from appellant by the poseur buyer merely furnishes evidence
of a course of conduct. The police received an intelligence report that appellant
habitually deals with shabu. They designated a poseur buyer to confirm the report by
engaging in a drug transaction with appellant. There was no proof that the poseur buyer
induced appellant to sell illegal drugs to him. (People vs. Gayoso, supra.)

Q. In illegal sale of dangerous drugs, is it necessary that the agreement on the price
and quantity be established to consummate the offense? Explain.

A. No. In People vs. Dela Cruz supra, the Supreme Court held that: The existence of the
illegal sale of the shabu does not depend on an agreement about its quantity and price
since the offense is consummated after the exchange of the illegal drug for the marked
money.

Q. Is the non-presentation of poseur buyer fatal to the prosecution? Explain.

 50

A. No. The Supreme Court, in the case of People vs. Perondo (751 SCRA 48, 18 February
2015), the presentation of the poseur buyer is not indispensable to the successful
prosecution of the case against appellant.

The Court is not impressed with appellant’s insistence that the failure to present the
poseur-buyer is fatal to the prosecution. It must be noted that whatever relevant
information the poseur-buyer may have was also equally known to the police officers
who testified for the prosecution during trial.  This is considering that they all
participated in the planning and implementation of the buy-bust operation and were all
direct witnesses to the actual sale of the shabu, the appellant’s arrest immediately
thereafter, and the recovery from him of the marked money.  Hence, the testimony of
the poseur-buyer was not indispensable or necessary; it would have been cumulative
merely, or corroborative at best.

Q. Is the buy-bust money necessary to be presented to the court by the prosecution

to strengthen its case? Explain.

A. Neither law nor jurisprudence requires the presentation of any of the money used
in a buy-bust operation. Much less is it required that the money be marked. In fact, not
even the absence or non-presentation of the marked money would weaken the
evidence for the prosecution ommitted are proof that the illicit transaction took place
coupled with the presentation in court of the corpus delicti or the illicit drug. (See also
People vs. Gonzaga, 632 SCRA 551, 11 October 2010.)

TRANSPORTING OF DANGEROUS DRUGS

Q. Can the offender interpose the defense of no criminal intent in transporting a

prohibited drug? Explain.

A. The act of transporting a prohibited drug is a malum prohibitum because it is punished

as an offense under a special law. As such, the mere commission of the act is what
constitutes the offense punished and same suffices to validly charge and convict an
individual caught committing the act so punished regardless of criminal intent. It is
basic that affirmative testimony of persons who are eyewitnesses of the events or facts
asserted easily overrides negative testimony. (Ho Wai Pang vs. People, 659 SCRA 624,
19 October 2011.)

Q. If there is doubt as to the identity of the drug subject of the case, can there be
conviction of the accused? Explain.
A. In both illegal sale and illegal possession of [shabu], conviction cannot be sustained if
there is a persistent doubt on the identity of said drug. The identity of the [shabu] must
be established with moral certainty. Apart from showing that the elements of
possession or sale are present, the fact that the [shabu] illegally possessed and sold x x x
is the same [shabu] offered in court as exhibit must likewise be established with the
same degree of certitude as that needed to sustain a guilty verdict.

The chain of custody requirement performs this function in that it ensures that
unnecessary doubts concerning the identity of the evidence are removed. (People vs.
Gayoso, supra.)
DELIVERY OF DANGEROUS DRUGS
 51

Q. To “deliver” and to “sell” are both punishable under Section 5, Article II of R.A.
9165. Differentiate these two acts.

A. Under Article I, Section 3(k) of R.A. 9165, the term “deliver” means “any act of
knowingly passing a dangerous drug to another, personally or otherwise, and by any
means, with or without consideration.” On the other hand, “sell” as defined in Section
3(ii) refers to “any act of giving away any dangerous drug and/or controlled precursor
and essential chemical whether for money or any other consideration.”

Q. What are the elements of illegal delivery of dangerous drugs to establish the guilt
of the accused?

A. To establish the guilt of an accused for the illegal delivery of a dangerous drug, there
must be evidence that:

(1) the accused passed on possession of a dangerous drug to another, personally or

otherwise, and by any means;

(2) such delivery is not authorized by law; and (3) the accused knowingly made the
delivery with or without consideration. (People vs. Reyes, 751 SCRA 65, 18
February 2015.)

Q. Is the presentation of marked money necessary in the case of illegal delivery of

dangerous drugs? Explain.

A. No. The presentation of the marked money is immaterial in this case since the crime of
illegal delivery of a dangerous drug can be committed even without consideration or
payment. (People vs. Reyes, supra.)

ILLEGAL POSSESSION OF DANGEROUS DRUGS

Q. What are the essential elements of illegal possession of Dangerous Drugs?

A. The essential elements in illegal possession of dangerous drugs are:

(1) the accused is in possession of an item or object that is identified to be a

prohibited drug;

(2) such possession is not authorized by law; and

(3) the accused freely and consciously possess the said drug. (Rebellion vs.
People, 623 SCRA 343, 5 July 2010; See also Tionco vs. People, 752 SCRA
589, 11 March 2015; People vs. Bio, 750 SCRA 572, 16 February 2015;
People vs. Eyam, 686 SCRA 408, 26 November 2012.)

Q. What is the significance of the concept of animus possidendi in the prosecution of

violations of the Dangerous Drugs Act?
 52

A. Animus possidendi means intention to possess. In prosecuting violations of the

Dangerous Drugs Act, mere possession of a regulated drug per se constitutes prima
facie evidence of knowledge or animus possidendi sufficient to convict an accused
absent a satisfactory explanation of such possession – the onus probandi is shifted
to the accused, to explain the absence of knowledge or animus possidendi. With the
burden of evidence shifted to the appellant, it was his duty to explain his innocence on
the regulated drug seized from his person. (People vs. Noque, 610 SCRA 195, 15
January 2010.)

Section 14. Possession of Equipment, Instrument, Apparatus and Other

Paraphernalia for Dangerous Drugs During Parties, Social Gatherings or Meetings.

Q. Will the degree of participation of the offenders, who violated Section 14 of R.A.
No. 9165, affect their respective liabilities and the imposable penalty?

A. No. In People vs. Collado (698 SCRA 628, 17 June 2013), the Supreme Court held that:
Illegal possession of equipment, instrument, apparatus and other paraphernalia for
dangerous drugs during parties, social gatherings or meetings under Section 14 of R.A.
No. 9165 is a crime of malum prohibitum, that is, the act is made wrong or evil because
there is a law prohibiting it. x x x

Since violation of Section 14 of R.A. No. 9165 is a crime of mala prohibita, the
degree of participation of the offenders is not considered. All who perpetrated the
prohibited act are penalized to the same extent. There is no principal or
accomplice or accessory to consider. In short, the degree of participation of the
offenders does not affect their liability, and the penalty on all of them are the same
whether they are principals or merely accomplices or accessories.

In addition, Section 98 of RA 9165 specifically provides that notwithstanding any law,

rule or regulation to the contrary, the provisions of the Revised Penal Code (Act No.
3814), as amended, shall not apply to the provisions of this Act, except in the case of
minor offenders. Where the offender is a minor, the penalty for acts punishable by life
imprisonment to death provided herein shall be reclusion perpetua to death. It is
therefore clear that the provisions of the Revised Penal Code, particularly Article 19 on
Accessories, cannot be applied in determining the degree of participation and criminal
liability of the accused.

Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered

Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential
Chemicals, Instruments/ Paraphernalia and/or Laboratory Equipment.

CHAIN OF CUSTODY OF DANGEROUS DRUGS

Q. What is the post seizure procedure for the custody and disposition of seized
drugs?

A. In the case of People vs. Nepomuceno (750 SCRA 209, 9 February 2015), the Supreme
Court said that: “Section 21(1), Article II of RA 9165 clearly outlines the post-seizure
procedure for the custody and disposition of seized drugs. The law mandates that the
officer taking initial custody of the drug shall, immediately after seizure and
 53

confiscation, conduct the physical inventory of the same and take a photograph thereof
in the presence of the accused or the person/s from whom such items were confiscated
and/or seized or his/her representative or counsel, a representative from the media
and the Department of Justice (DOJ), and any elected public official, who shall be
required to sign the copies of the inventory and be given a copy thereof.

The explicit directive of the above statutory provision notwithstanding, the

Implementing Rules and Regulations of the said law provide a saving clause whenever
the procedures laid down in the law are not strictly complied with, to wit:

x x x Provided, further, that non-compliance with these requirements

under justifiable grounds, as long as the integrity and the evidentiary value of
the seized items are properly preserved by the apprehending officer/team, shall
not render void and invalid such seizures of and custody over said items.

Thus, gleaned from a plain reading of the implementing rules, the most important factor
is the preservation of the integrity and the evidentiary value of the seized items as they
will be used to determine the guilt or innocence of the accused. As long as the
evidentiary value and integrity of the illegal drug are properly preserved, strict
compliance of the requisites under Section 21 of RA 9165 may be disregarded. (People
vs. Gandawali, 743 SCRA 405, 1 December 2014; See also People vs. Brita, 741
SCRA 494, 24 November 2014; People vs. Bis, 718 SCRA 250, 10 March 2014.)

Q. What is chain of custody in regard to drug cases?

A. Chain of Custody means the duly recorded authorized movements and custody of
seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory
equipment of each stage, from the time of seizure/confiscation to receipt in the
forensic laboratory to safekeeping to presentation in court. Such record of
movements and custody of seized item shall include the identity and signature of the
person who had temporary custody of the seized item, the date and time when such
transfer of custody was made in the course of safekeeping and use in court as evidence,
and the final disposition.” (People vs. Salvador, 715 SCRA 617, 10 February 2014;
See also People vs. Araza, 740 SCRA 437, 17 November 2014; People vs. Aneslag,
686 SCRA 150, 21 November 2013.)

Q. What are the requirements of the chain of custody rule?

A. In People vs. Havana, 778 SCRA 524 (11 January 2016).the Court expounded the
custodial chain procedure in this wise:

As a method of authenticating evidence, the chain of custody rule

requires that the admission of an exhibit be preceded by evidence
sufficient to support a finding that the matter in question is what the
proponent claims it to be. It would include testimony about every link in
the chain, from the moment the item was picked up to the time it is offered
in evidence, in such a way that every person who touched the exhibit
would describe how and from whom it was received, where it was and
what happened to it while in the witness' possession, the condition in
which it was received and the condition in which it was delivered to the
next link in the chain. These witnesses would then describe the
 54

precautions taken to ensure that there had been no change in the

condition of the item and no opportunity for someone not in the chain to
have possession of the same.

While the testimony about a perfect chain is not always the

standard because it is almost always impossible to obtain, an unbroken
chain of custody becomes indispensable and essential when the item of
real evidence is not distinctive and is not readily identifiable, or when its
condition at the time of testing or trial is critical, or when a witness has
failed to observe its uniqueness. The same standard obtains in case the
evidence is susceptible of alteration, tampering, contamination and even
substitution and exchange. In other words, the exhibit's level of
susceptibility to fungibility, alteration or tampering - without regard to
whether the same is advertent or otherwise not - dictates the level of
strictness in the application of the chain of custody rule.

Q. What are the four links in the chain of custody that must be established by the
prosecution?

A. First, the seizure and marking, if practicable, of the illegal drug recovered from the
accused by the apprehending officer;

Second, the turnover of the illegal drug seized by the apprehending officer to the
investigating officer;

Third, the turnover by the investigating officer of the illegal drug to the forensic chemist
for laboratory examination; and

Fourth, the turnover and submission of the marked illegal drug seized from the forensic
chemist to the court. (People vs. Salvador, supra.)

Q. What is the effect of failure establish the chain of custody in the prosecution of
illegal possession or sale of prohibited drugs?

A. The failure to establish the evidence’s chain of custody is fatal to the prosecution’s case.
Under no circumstance can the court consider or even safely assume that the integrity
and evidentiary value of the drug was properly preserved by the apprehending officers.
There can be no crime of illegal possession of a prohibited drug when nagging
doubts persist on whether the item confiscated was the same specimen examined
and established to be the prohibited drug.

Q. May the accused still be found guilty despite the failure of the prosecution to
observe the requirements under Section 21 of R.A. No. 9165? Justify your answer.

A. Yes. In People vs. Diaz (752 SCRA 17, 25 February 2015), the Supreme Court said that:
it is “settled that an accused may still be found guilty, despite the failure to faithfully
observe the requirements provided under Section 21 of R.A. No. 9165, for as long as the
chain of custody remains unbroken. In the said case, it was beyond cavil that the
prosecution was able to establish the necessary links in the chain of custody of the
subject specimen from the moment it was seized from appellant up to the time it was
presented during trial as proof of the corpus delicti. 
 55

Q. Is the non-compliance with the provision of Section 21, R.A. No. 9165 on the Chain
of Custody, such as no inventory conducted and photographs taken at the scene of
the crime, fatal to the prosecution? Explain.

A. No. In Tionco vs. People (752 SCRA 589, 11 March 2015), the Supreme Court held that:
“While there was indeed no physical inventory conducted and no photograph of the
seized item was taken, the Court has already ruled in several cases that the failure of the
arresting officers to strictly comply with the law is not fatal and will not render an
accused's arrest illegal or the items seized/confiscated from him inadmissible. “What is
of utmost importance is the preservation of the integrity and the evidentiary value of
the seized items, as the same would be utilized in the determination of the guilt or
innocence of the accused." (See also People vs. Cunanan, 753 SCRA 2, 16 March
2015; People vs. Bio, 750 SCRA 572, 16 February 2015.)

Q. What is “marking” in contemplation of the chain of custody of illegal drugs?

A. Marking is the placing by the arresting officer or the poseur-buyer of his/her initials and
signature on the items after they have been seized. It is the starting point in the custodial
link. It is vital that the seized items be marked immediately since the succeeding
handlers thereof will use the markings as reference. The chain of custody rule also
requires that the marking of the seized contraband be done (1) in the presence of
the apprehended violator, and (2) immediately upon confiscation. (People vs.
Gayoso, supra.)

Q. In one buy-bust operation, the police officers failed to mark 2 sachets of the seized
items of shabu out of 5 submitted to the crime laboratory. Is it a violation of the
Chain of Custody Doctrine that might lead to the acquittal of the accused? Explain.

A. Yes. In People vs. Butial (749 SCRA 591, 4 February 2015), where the accused was
acquitted, the Supreme Court held that: Clearly, the absence of markings creates an
uncertainty that the two sachets seized during the buy-bust operation were part of the
five sachets submitted to the police crime laboratory. The prosecution’s evidence
failed to establish the marking of the two sachets of shabu subject of this case,
which is the first link in the chain of custody and which would have shown that the
shabu presented in evidence was the same specimen bought from appellant during
the buy-bust operation.  The lack of certainty therefore on a crucial element of the
crime i.e., the identity of the corpus delicti, warrants the reversal of the judgment
of conviction.

Moreover, there was no testimony from the police officers that they conducted a physical
inventory and took photographs of the sachets of shabu confiscated from appellant. Their
sworn statements did not mention any inventory-taking or photographing of the same. 
They also did not bother to offer any justification for this omission. At this point, it is apt
to restate the Court’s pronouncement in People vs. Pepino-Consulta,(2013) in this wise:

“The Court cannot emphasize enough that zealousness on the part of

law enforcement agencies in the pursuit of drug peddlers is indeed laudable.
However, it is of paramount importance that the procedures laid down by law
be complied with, especially those that involve the chain of custody of the illegal
drugs. This is necessary in order to dispel even the most infinitesimal of doubts
 56

on the outcome of arrests and buy-bust operations, so as not to render naught

the efforts and the resources put forth in the apprehension and prosecution of
violators of our drug laws.”

Q. In case of warrantless seizures of illegal drugs, is it a violation of R.A. No. 9165 if

the inventory and markings was conducted in another place other than where it
was seized? Explain.

A. No. In People vs. Aplat supra, it was held that: The fact that the inventory and
marking of the subject item were not made onsite is of no moment and will not lead
to appellant’s exoneration. From a cursory reading of Section 21(a) of the
Implementing Rules and Regulations of RA 9165, it can be gleaned that in cases of
warrantless seizures, inventory and marking of the seized item can be conducted
at the nearest police station or office of the apprehending authorities, whichever is
practicable, and not necessarily at the place of seizure. As held in People vs.
Resurreccion, (2009) "marking upon immediate confiscation" does not exclude the
possibility that marking can be done at the police station or office of the apprehending
team.

Q. What if the police officers secured a search warrant prior to the operation, is the
marking of the illegal drugs allowed in the nearest police station instead of the
place where it was confiscated? Explain.

A. No. While marking of the evidence is allowed in the nearest police station, this
contemplates a case of warrantless searches and seizures.

In People vs. Gayoso supra, the police officers secured a search warrant prior to their
operation. They therefore had sufficient time and opportunity to prepare for its
implementation. However, the police officers failed to mark immediately the plastic
sachets of shabu seized inside appellant's house in spite of an Inventory of Property
Seized that they prepared while still inside the said house. The failure of the arresting
officers to comply with the marking of evidence immediately after confiscation
constitutes the first gap in the chain of custody.

PROSECUTION OF DRUG CASES

Q. What is the most important element to be established in order to convict an

accused for violations of the Dangerous Drugs Act?

A. Sale or possession of a dangerous drug can never be proven without seizure and
identification of the prohibited drug. In People vs. Magat, (2008)  it was held that the
existence of dangerous drugs is a condition sine qua non for conviction for the
illegal sale and possession of dangerous drugs, it being the very corpus delicti of the
crime. In prosecutions involving narcotics, the narcotic substance itself constitutes
the corpus delicti of the offense and the fact of its existence is vital to sustain a
judgment of conviction beyond reasonable doubt. Of paramount importance
therefore in these cases is that the identity of the dangerous drug be likewise
established beyond reasonable doubt. (Note: This is otherwise known as the Chain of
Custody Rule.)
 57

Furthermore, in People vs. Bombasi (802 SCRA 373, 7 September 2016), where the
conviction of the accused was reversed and set aside for having not proven the guilt of
appellant beyond reasonable doubt due to failure of the prosecution to preserved
properly the identity of the corpus delicti, the Supreme Court held that:

For a successful prosecution of the offense of illegal sale of dangerous drugs

like shabu, the prosecution is bound to establish the following elements:

(1) identity of the buyer and the seller, the object and consideration of the sale
and

(2) the delivery of the thing sold and the payment therefor but also it is equally
essential that the prohibited drug confiscated or recovered from the suspect
is the very same substance offered in court as exhibit; and that the identity of
said drug be established with the same unwavering exactitude as that
requisite to make a finding of guilt. The presumption of regularity in the
performance of official duty invoked by the prosecution and relied upon by
the courts a quo cannot by itself overcome the presumption of innocence nor
constitute proof of guilt beyond reasonable doubt.

Q. Explain presumption of regularity in the performance of official duty of police

officers in the context of illegal drugs operations.

A. In People vs. Nepomuceno (750 SCRA 209, 9 February 2015), the Supreme Court
explained that: “In cases involving the illegal sale of dangerous drugs, “credence should
be given to the narration of the incident by the prosecution witnesses, especially when
they are police officers who are presumed to have performed their duties in a regular
manner, unless there is evidence to the contrary. Moreover, in the absence of proof of
motive to falsely impute such a serious crime against the appellant, the presumption of
regularity in the performance of official duty, as well as the findings of the trial court on
the credibility of witnesses, shall prevail over [appellant’s] self-serving and
uncorroborated denial.” Appellant therefore had the burden to overcome the
presumption that the police officers regularly and properly discharged their
duties which she failed to do. Against the evidence of the prosecution, her defenses of
alibi, denial and frame-up crumble. Aside from being weak and uncorroborated, such
defenses are viewed with disfavor since they can easily be concocted and are common
and standard ploy in prosecutions for violation of the Dangerous Drugs Act.

Thus, the prosecution of cases involving illegal drugs largely depends on the credibility of
police officers serving as prosecution witnesses. In this regard and as the Supreme Court
held in People vs. Dela Cruz, (2008) the rule is that the findings of the trial court, its
calibration of the testimonies of the witnesses and its assessment of the probative weight
thereof, as well as its conclusions anchored on said findings, are accorded respect, if not
conclusive effect. This is more true if such findings were affirmed by the appellate court,
because in such a case, said findings are generally binding upon the Supreme Court.
(People vs. Fernandez, 692 SCRA 614, 6 March 2013.)

Q. Is the non-presentation of the forensic chemist in the prosecution for drug cases a
ground for acquittal of the accused?
 58

A. In People vs. Quebral (2009) the accused-appellants pointed out that, since the chemist
who examined the seized substance did not testify in court, the prosecution was unable
to establish the indispensable element of corpus delicti. According to the Supreme Court,
this claim is unmeritorious. The corpus delicti in dangerous drugs cases constitutes the
dangerous drug itself. This means that proof beyond doubt of the identity of the
prohibited drug is essential. The corpus delicti has nothing to do with the testimony of
the laboratory analyst. In fact, the Court has ruled that the report of an official forensic
chemist regarding a recovered prohibited drug enjoys the presumption of regularity in
its preparation. Corollarily, under Section 44 of Rule 130, Revised Rules of Court, entries
in official records made in the performance of official duty are prima facie evidence of the
facts they state.

Thus, in People vs. Fernandez, Jr. (680 SCRA 181, 5 September 2012), the Court
reiterated its earlier rulings in a number of cases that non-presentation of the forensic
chemist in illegal drugs cases is an insufficient cause for acquittal.

The non-presentation as witnesses of other persons who had custody of the illegal
drugs is not a crucial point against the prosecution. It is the prosecution which has
the discretion as to how to present its case and it has the right to choose whom it
wishes to present as witnesses. What is important is that the integrity and
evidentiary value of the seized drugs are properly preserved.

Q. In the prosecution of drug cases, is it necessary that the testimony of a single

witness be corroborated in order to be believed by the trial court? Explain.

A. No. There is no law requiring that in drug cases the testimony of a single witness
has to be corroborated to be believed. Corroborative evidence is vital only when there
are reasons to suspect that the witness twisted the truth, or that his or her observation
was inaccurate. Evidence is assessed in terms of quality, not quantity. It is to be
weighed, not counted. Thus, it is not uncommon to reach a conclusion of guilt on the
basis of the testimony of a lone witness.

In People vs. Gayoso, supra, it is on record that the appellant no longer required the
presentation of corroborative testimony. During the trial, the prosecution was ready to
present another witness in the person of PO1 Santos. However, the parties agreed to
dispense with his testimony since it would only be corroborative in nature.

Q. Is the presentation of an informant necessary in the prosecution of drug cases?

Explain.

A. No. The presentation of an informant is not a requisite in a prosecution for drug cases.
The failure of the prosecution to present the informant does not vitiate its cause as the
latter’s testimony is not indispensable to a successful prosecution for drug-pushing, since
his testimony would be merely corroborative of and cumulative with that of the poseur-
buyer who was presented in court and who testified on the facts and circumstances of
the sale and delivery of the prohibited drug. Failure of the prosecution to produce the
informant in court is of no moment, especially when he is not even the best witness to
establish the fact that the buy-bust operation has indeed been conducted. (People vs.
Gonzaga, 632 SCRA 51, 11 October 2010.)
 59

Q. What are the penalties for the unauthorized sale of and illegal possession of
dangerous drugs?

A. Under the law, the penalty for the unauthorized sale, regardless of its quantity and
purity, is life imprisonment to death and a fine ranging from P500,000.00 to P10 million. 
However, with the enactment of RA 9346, only life imprisonment and fine shall be
imposed.  Further, the accused is also not eligible for parole pursuant to Section 2 of the
Indeterminate Sentence Law. 

The penalty for illegal possession of dangerous drugs, on the other hand, is
imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine
ranging from P300,000.00 to P400,000.00, if the quantity of the dangerous drug is less
than five (5) grams. 

The Supreme Court reiterated, in People vs. Opiana (745 SCRA 144, 12 January 2015),
the most echoed constitutional guarantee that an accused in criminal prosecutions is
presumed innocent until his guilt is proven beyond reasonable doubt. To overcome the
presumption of innocence and arrive at a finding of guilt, the prosecution is duty
bound to establish with moral certainty the elemental acts constituting the
offense. In prosecutions involving narcotics, the narcotic substance itself constitutes
the  corpus delicti  of the offense and the fact of its existence is vital to sustain a judgment of
conviction beyond reasonable doubt. The identity of the narcotic substance must
therefore be established beyond reasonable doubt.

The Supreme Court acquitted the appellant because the prosecution miserably failed to
establish the identity of the substance allegedly seized from him. In addition, there was a
break in the chain of custody thereby casting doubt on the integrity and evidentiary
value of the substance allegedly seized from the appellant. (People vs. Suan, 613 SCRA
366, 2 February 2010; See also People vs. Morales, 616 SCRA 223, 19 March 2010.)

Q. Will the defense of frame-up prosper in violations of the Dangerous Drugs Law?
Explain.

A. No. The defense of frame-up is viewed with disfavor since, like alibi, it can easily be
concocted and is a common ploy in most prosecutions for violations of the
Dangerous Drugs Law. In fact, aside from the bare assertions of the appellant that she
was a victim of frame-up and extortion, there is no clear and convincing evidence to
substantiate such claim. (People vs. Gayoso, supra.)

GOOD LUCK AND GOD BLESS!

MAY ALL OF YOU REACH THE UNREACHABLE STAR.