2010 Spl Updates

8/9/2019 2010 Spl Updates

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UPDATEDSPECIAL PENAL LAWS

By:

JUDGE OSCAR B. PIMENTELRegional Trial Cour! Bran"# $%&!Ma'ai Ciy

INDETERMINATE SENTENCE LAW(Act No. 4103 as amended by Act No. 4225)


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W(EN AN ACCUSED IS SENTENCED TO RECLUSION PERPETUA! (E IS NOTENTITLED TO T(E APPLICATION O) T(E INDETERMINATE SENTENCE LAW

Accused-appellant cannot avail of the benefits of the Indeterminate SentenceLaw because Indeterminate Sentence Law does not apply to persons convicted of offenses punishable with reclusion perpetua.

(People v. Aquino; ! "#$%&' )an. "' *%+,

APPLICATION O) INDETERMINATESENTENCE LAW E*PLAINED

In the case of People vs. Gabres the ourt has had occasion to so state that

/0nder the Indeterminate Sentence Law the ma1imum term of the penaltyshall be 2that which in view of the attendin3 circumstances could be properlyimposed2 under the !evised Penal ode and the minimum shall be within the ran3e

of the penalty ne1t lower to that prescribed2 for the offense. 4he penalty ne1t lowershould be based on the penalty prescribed by the ode for the offense without firstconsiderin3 any modifyin3 circumstance attendant to the commission of the crime.4he determination of the minimum penalty is left by law to the sound discretion of the court and it can be anywhere within the ran3e of the penalty ne1t lower withoutany reference to the periods into which it mi3ht be subdivided. 4he modifyin3circumstances are considered only in the imposition of the ma1imum term of theindeterminate sentence.

/4he fact that the amounts involved in the instant case e1ceed P##&&&.&&should not be considered in the initial determination of the indeterminate penalty;instead the matter should be so ta5en as analo3ous to modifyin3 circumstances inthe imposition of the ma1imum term of the full indeterminate sentence. 4hisinterpretation of the law accords with the rule that penal laws should be construedin favor of the accused. Since the penalty prescribed by law for the estafa char3ea3ainst accused-appellant is prision correccional ma1imum to prision mayor minimum the penalty ne1t lower would then be prision correccional minimum tomedium. 4hus the minimum term of the indeterminate sentence should beanywhere within si1 (', months and one (", day to four (6, years and two (#,months . . ./

(People v. Saley; ! "#""7% )uly # *%+,

INDETERMINATE SENTENCE LAW+APPLICABLE ALSO IN DRUG CASES:

4he final query is whether or not the Indeterminate Sentence Law isapplicable to the case now before us. Apparently it does since dru3 offenses arenot included in nor has appellant committed any act which would put him within thee1ceptions to said law and the penalty to be imposed does not involve reclusion

perpetua or death provided of course that the penalty as ultimately resolved wille1ceed one year of imprisonment. 4he more important aspect however is how theindeterminate sentence shall be ascertained. It is true that Section " of said lawafter providin3 for indeterminate sentence for an offense under the !evised Penalode states that /if the offense is punished by any other law the court shallsentence the accused to an indeterminate sentence the ma1imum term of which

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shall not e1ceed the ma1imum fi1ed by said law and the minimum shall not be lessthan the minimum term prescribed by the same/ 8e hold that this quoted portion of the section indubitably refers to an offense under a special law wherein the penaltyimposed was not ta5en from and is without reference to the !evised Penal ode asdiscussed in the precedin3 illustrations such that it may be said that the /offense ispunished/ under that law. 4here can be no sensible debate that the aforequotedrule on indeterminate sentence for offenses under special laws was necessary

because of the nature of the former type of penalties under said laws which werenot included or contemplated in the scale of penalties in Article 7" of the odehence there could be no minimum /within the ran3e of the penalty ne1t lower tothat prescribed by the ode for the offense/ as is the rule for felonies therein. Inthe illustrative e1amples of penalties in special laws hereinbefore provided this ruleapplied and would still apply only to the first and last e1amples. 9urthermoreconsiderin3 the vinta3e of Act :o. 6"& as earlier noted this holdin3 is but anapplication and is


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In /People -vs- Conrado Lucas #6& S!A '' the Supreme ourt declaredthat despite the amendment of Article #7 of the !evised Penal ode reclusion

perpetua remained an indivisible penalty. ?ence the penalty does not have anyminimum medium and ma1imum period. ?ence there is no such penalty of medium period of reclusion perpetua.

(People versus 4iburcio @aculi #6' S!A,

IMPOSITION O) WRONG PENALT-:IT DOES NOT OBTAIN )INALIT-

Suppose the court imposed a penalty of #$ years of reclusion perpetua forthe crime of rape and the accused did not appeal does the


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(People -vs- !olando =adria3a #"" S!A '%+,

T(E REASON W(- RECLUSION PERPETUA (AS A RANGE DESPITE T(E SAMEBEING INDI,ISIBLE

4here we also said that /if reclusion perpetua was reclassified as a divisible penaltythen Article ' of the !evised Penal ode would lose its reason and basis for

e1istence./ 4he imputed duration of thirty (&, years of reclusion perpetua thereforeonly serves as the basis for determinin3 the convict2s eli3ibility for pardon or for theapplication of the three-fold rule in the service of multiple penalties.

(People -vs- Aspolinar !a3anas et al! :o. "&""++ >ctober "# "%%%,

RARE CASE O) APPLICATION O) RPC IN A SUPPLETOR- C(ARACTER DESPITET(E PENALT- BEING LI)E IMPRISONMENT

8here the accused committed qualified violation of P 7&6 (fishin3 with the use of e1plosives, the imposable penalty for which is life imprisonment to death. If the

accused is entitled to a miti3atin3 circumstance of voluntary surrender the court shouldimpose life imprisonment applyin3 in a suppletory character Articles " and ' of the!evised Penal ode. (People -vs- Priscilla @alasa ! :o. "&'$7 September "%%+,ACCUSED W(O IS SENTENCED TO RECLUSION PERPETUA IS STILL ENTITLEDTO EIT(ER )ULL OR / O) (IS PRE,ENTI,E IMPRISONMENT

If durin3 the trial the accused was detained but after trial he was meted thepenalty of reclusion perpetua he is still entitled to the full credit of his preventiveimprisonment because Article #% of the !evised Penal ode does not distin3uishbetween divisible and indivisible penalties.

(People -vs- !olando orpuB#" S!A 6+&,

JUDY JOBY LOP! "#. POPL O$ %& P&'L'PP'N# .*. NO. 1++,10 JUN 2+ 200,

4he Indeterminate Sentence Law provides that if an offense is punished by the!evised Penal ode or its amendments the court shall sentence the accused to anindeterminate penalty the ma1imum term of which shall be that which in view of theattendin3 circumstances can be properly imposed under the rules of the !evised Penalode while the minimum term of which shall be within the ran3e of the penalty ne1tlower to that prescribed by the ode for the offense.

0nder Article "$ as amended by P.. :o. +"+ the penalty of reclusion

temporal is imposed if the amount defraud is over P"#&&&.&& but does not e1ceedP##&&&.&&. 4he amount involved in this case is within the above-mentioned ran3e.Applyin3 the Indeterminate Sentence Law the ma1imum imposable penalty isreclusion temporal while the minimum term should be within the ran3e of the penaltyne1t lower to that prescribed by the ode for the offense which is prision mayor . 4hus the A correctly affirmed the penalty imposed by the trial court which is si1 (',years and one (", day of prision mayor as minimum to twelve years ("#, and one (",day of reclusion temporal as ma1imum.

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-UAL'$'D %&$%

0UALI)IED T(E)T IS PENALI1ED B- RECLUSION PERPETUA I) AMOUNTIN,OL,ED IS O,ER P22!333.33

0nder Article &% of the !evised Penal ode the ma1imum of the penalty for qualified

theft is prision mayor to reclusion temporal. ?owever under Article "& of the !evisedPenal ode the penalty for the crime shall be two (#, de3rees hi3her than the specifiedin Article &% of the ode. 0nder Article 76 of the !evised Penal ode the penaltyhi3her by one de3ree than another 3iven penalty and if such hi3her penalty is deaththe penalty shall be reclusion perpetua of forty (6&, years with the accessory penaltiesof death under Article 6& of the !evised Penal ode. 4he accused shall not be entitledto pardon before the lapse of forty (6&, years.

(People -vs- 9ernando anales #%7 S!A ''7,

%& P*OBA%'ON LA (P.D. /+,)

and ts ANDN%#

PROBATION! ITS MEANING

A disposition under which a defendant after conviction and sentence is sub


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W(AT ARE T(E PRI,ILEGES T(AT MA-BE GI,EN TO T(E ACCUSEDPETITIONER4

". if the accused prior to the promul3ation of decision of conviction is out on bail hemay be allowed on temporary liberty under his bail filed in said case;

#. if he is under detention upon motion he may be allowed temporary liberty if he

cannot post a bond on a reco3niBance of a responsible member of a communitywho shall 3uarantee his appearance whenever required by the court.

IN CASE T(E APPLICANT )OR PROBATION CANNOT BE PRODUCED B- T(ECUSTODIAN ON RECOGNI1ANCE! W(AT (APPENS4

4he custodian must be as5ed to e1plain why he should not be cited for contempt forfailin3 to produce the probationer when required by the court; Summary hearin3 will beheld for indirect contempt and if custodian cannot produce the petitioner nor toe1plain his failure to produce the petitioner the custodian on reco3niBance shall be heldin contempt of court.

W(AT IS A POST SENTENCEIN,ESTIGATION REPORT4

It is a report of the Parole and Probation >fficer after conductin3 post sentenceinvesti3ation and interviews containin3 the circumstances surroundin3 the offense forwhich the petitioner was convicted. 4he findin3s should be drawn from the courtrecords police records statement of defendants the a33rieved party and otherpersons who may 5now the petitioner and all other matters material to the petition.

It will also include the psycholo3ical and social information re3ardin3 the probationer;evaluation of the petitioner; suitability for probation; his potential for rehabilitation;and may include the pro3ram for supervision and su33ested terms of conditions of probation and a recommendation either to deny or 3rant the probation.

W(AT ARE T(E MANDATOR-CONDITIONS O) PROBATION4

a. 4o present himself to the probation officer concerned for supervision within 7#hours from receipt of said order and

b. to report to the probation officer at least once a month durin3 the period of probation.

W(AT ARE T(E OT(ER

CONDITIONS O) PROBATION4

a. cooperate with a pro3ram of supervision;b. meet his family responsibilities;c. devote himself to a specific employment and not to char3e said employment

without prior written approval of the probation officer;d. comply with a pro3ram of payment of civil liability to the victim of his heirs;e. under3o medical psycholo3ical or psychiatric e1amination and treatment andEor

enter and remain in a specific institution when required for that purposes;f. pursue a prescribed secular study or vocational trainin3;

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3. attend or reside in a facility established for instruction or recreation of personson probation;

h. refrain from visitin3 houses of ill-repute;i. abstain from drin5in3 into1icatin3 bevera3es to e1cess;


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MODI)ICATION O) CONDITIONOR PERIOD O) PROBATION

4he court on motion or motu propio modify the conditions of probation ormodify the period of probation as circumstances may warrant.

W(O ARE DIS0UALI)IEDTO UNDERGO PROBATION

". 4hose sentenced to serve a ma1imum term of imprisonment of more than si1years.

#. 4hose convicted of any offense a3ainst the security of the state;. 4hose who have been previously convicted by final


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JU*'#P*UDN

UNDERL-ING P(ILOSOP(- O) PROBATION

4he underlyin3 philosophy of probation is indeed one of liberality towards theaccused. It is not served by a harsh and strin3ent interpretation of the statutory

provisions. Probation is a ma


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Althou3h an order denyin3 probation is not appealable the accused may file amotion for ertiorari from said order (?eirs of 9rancisco Abue3 v. .A. #"% S!A 7+,

E))ECT O) )ILING PETITION )OR PROBATION! WAI,ER O) RIG(T TO APPEALAND )INALIT- O) JUDGEMENT

A


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4here is no doubt that dru3-pushin3 is a crime which involves moral turpitudeand implies /every thin3 which is done contrary to


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Probation is a mere privile3e and its 3rant rests solely upon the discretion of thecourt. As aptly noted in 0.S. vs. ur5em this discretion is to be e1ercised primarily forthe benefit of or3aniBed society and only incidentally for the benefit of the accused.(4olentino v. Alconcel .!. :o. '6&& E"+E+,. Gven if a convicted person is notincluded in the list of offenders disqualified from the benefits of a decree the 3rant of probation is nevertheless not automatic or ministerial (Pablo @ernardo v. @ala3ot #"$S!A $#', therefore a petition for probation may be denied by the ourt.

4he main criterion laid down by the Probation law in determinin3 who may be3ranted probation is based on the penalty imposed and not on the nature of the crime.@y the relative li3htness of the offense as measured by the penalty imposed morethan by its nature as the law so ordains the offender is not such a serious menace tosociety as to be wrested away therefrom as the more dan3erous type of criminalsshould be. ?ence in the case at bar the first reason 3iven by the respondent


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T(E PURPOSE O) ENACTING PD $6$2

4he Anti-9encin3 Law was made to curtail and put an end to the rampantrobbery of 3overnment and private properties. 8ith the e1istence of /ready buyers/the /business/ of robbin3 and stealin3 have become profitable. ?ence a law wasenacted to also punish those who buy stolen properties. 9or if there are no buyers thenthe malefactors could not profit from their wron3 doin3s.

W(AT IS T(E ANTI)ENCING LAW AND (OW IT CAN BE COMMITTED

/9encin3/ is the act of any person who with intent to 3ain for himself or foranother shall buy receive possess 5eep acquire conceal sell or dispose of or shallbuy and sell or in any other manner deal in any article item ob


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RULES REGARDING BU- AND SELL O) GOODS PARTICULARL- SECOND(AND GOODS

4he law requires the establishment en3a3ed in the buy and sell of 3oods toobtain a clearance or permit to sell /used second hand items/ to 3ive effect to thepurpose of the law in puttin3 an end to buyin3 and sellin3 stolen items. 9ailure of which

ma5es the owner or mana3er liable as a fence.

4he Implementin3 !ules provides for the 3uidelines of issuance of clearances orpermits to sell used or secondhand items. It provided for the definition of the followin3termsD

". /0sed secondhand article/ shall refer to any 3oods article itemsober?i. )ailureo =e"ure "learan"e8>er?i =#all ;e >uni=#e< a= a 9en"e! #a ?ay re=ul o#e "an"ellaion o9 ;u=ine== li"en=e.

". 4he Station ommander shall require the owner of a store or thePresident mana3er or responsible officer in havin3 in stoc5 used secondhand articlesto submit an initial affidavit within thirty (&, days from receipt of notice for thepurpose thereof and subsequent affidavits once every fifteen ("$, days within five ($,days after the period covered which shall containD

a. complete inventory of such articles includin3 the names andaddresses from whom the articles were acquired.

b. 9ull list of articles to be sold or offered for sale includin3 the time andplace of sale

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c. Place where the articles are presently deposited.

4he Station ommander may require the submission of an affidavitaccompanied by other documents showin3 proof of le3itimacy of acquisition.

#. 4hose who wish to secure the permitEclearance shall file an applicationwith the Station ommander concerned which statesD

a. name address and other pertinent circumstancesb. article to be sold or offered for sale to the public and the name and

address of the unlicensed dealer or supplier from whom such articlewas acquired.

c. Include the receipt or document showin3 proof of le3itimacy of acquisition.

. 4he Station ommander shall e1amine the documents attached to theapplication and may require the presentation of other additional documents if necessary to show satisfactory proof of the le3itimacy of acquisition of the articlesub


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or denyin3 the same. enial of an application shall be in writin3 and shall state in brief the reasonEs thereof.

+. Any party not satisfied with the decision of the Station ommander mayappeal the same within "& days to the proper I:P (now P:P, istrict Superintendentand further to the I:P (now P:P, irector. 4he decision of the irector can still beappealed top the irector-eneral within "& days whose decision may be appealed

with the =inister (now Secretary, of :ational efense within "$ days which decision isfinal.

PRESUMPTION O) )ENCING

=ere possession of any 3ood article item ob


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measly sum and this should have apprised :orma of the possibility that they werestolen 3oods. 4he appro1imate total value of the


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4he state may thus choose to prosecute him either under the !P or P :>."'"# althou3h the preference for the latter would seem inevitable considerin3 thatfencin3 is a malum proibitum and P :o. "'"# creates a presumption of fencin3 andprescribes a hi3her penalty based on the value of the property. (supra,

MERE POSSESSION O) STOLEN ARTICLE

PRIMA )ACIE E,IDENCE O) )ENCING

Since Sec. $ of P :>. "'"# e1pressly provides that Jmere possession of any3ood article item ob


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elective position -/Sec. 6& isqualifications - (a, 4hose sentenced by final


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PROO) O) PURC(ASE W(EN GOODSARE IN POSSESSION O) O))ENDER NOT NECESSAR- IN ANTI)ENCING

4he law does not require proof of purchase of the stolen articles by petitioner asmere possession thereof is enou3h to 3ive rise to a presumption of fencin3.

It was incumbent upon petitioner to overthrow this presumption by sufficientand convincin3 evidence. (aoili v. A; ! "#+'% "#E##E%7,

BA%A# PABAN#A BL. 22BOUN'N &:# LA

ACTS PUNIS(ABLE:

a. any person who ma5es or draws and issues any chec5 to apply on account or for

value 5nowin3 at the time of issue that he does not have sufficient funds in or creditwith the drawee ban5 for the payment of such chec5 in full upon its presentmentwhich chec5 is subsequently dishonored by the drawee ban5 for insufficiency of fundsor credit or would have been dishonored for the same reason had not the draweewithout any valid reason ordered the ban5 to stop payment.

b. Any person who havin3 sufficient funds in or credit with the drawee ban5 whenhe ma5es or draws and issues a chec5 shall fail to 5eep sufficient funds or to maintaina credit to cover the full amount of the chec5 if presented within a period of ninety daysfrom date appearin3 thereon for which reason it is dishonored by the drawee ban5.

(OW TO ESTABLIS( GUILTO) ACCUSED IN BP 22

4o establish her 3uilt it is indispensable that the chec5s she issued for whichshe was subsequently char3ed be offered in evidence because the 3ravamen of theoffense char3ed is the act of 5nowin3ly issuin3 a chec5 with insufficient funds. learlyit was error to convict complainant on the basis of her letter alone. :everthelessdespite this incorrect interpretation of a rule on evidence we do not find the same assufficiently constitutive of the char3es of 3ross i3norance of the law and of 5nowin3lyrenderin3 an un


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4he drawee ban5 has the duty to cause to be written printed or stamped inplain lan3ua3e thereon or attached thereto the reason for the drawee*s dishonor orrefusal to pay the same. If the drawee ban5 fails to do so prosecution for violation of @P ## may not prosper.

RULE IN CASE O) DIS(ONOR

DUE TO STOP PA-MENT

4he drawee ban5 has not only the duty to indicate that the drawer stopped thepayment and the reason for the stop payment. 4he drawee ban5 is further obli3ated tostate whether the drawer of the chec5 has sufficient funds in the ban5 or not.

AGREEMENT O) PARTIESREGARDING T(E C(EC@IS NOT A DE)ENSE

In the case of People vs itafan #"$ S!A the a3reement of the parties inrespect to the issuance of the chec5 is inconsequential or will not affect the violation of

@P ## if the chec5 is presented to the ban5 and the same was dishonored due toinsufficiency of funds.

C(EC@S ISSUED IN PA-MENTO) INSTALLMENT

hec5s issued in payment for installment covered by promissory note and saidchec5s bounced the drawer is liable if the chec5s were drawn a3ainst insufficient fundsespecially that the drawer upon si3nin3 of the promissory note closed his account.Said chec5 is still with consideration. (aram !esources v. ontreras,

In this case the )ud3e was even held administratively liable.

C(EC@ DRAWN AGAINSTA DOLLAR ACCOUNT. RULE:

A chec5 drawn a3ainst a dollar account in a forei3n country is still violative of the provisions of @P ## so lon3 as the chec5 is issued delivered or uttered in thePhilippines even if the same is payable outside of the Philippines (e Nilla v. A,

GUARANTEE C(EC@S! DRAWER!STILL LIABLE

4he mere act of issuin3 a worthless chec5 is punishable. >ffender cannot claim3ood faith for it is malum prohibitum.

In the case of 'a,no vs CA when accused issued a chec5 as warranty depositfor lease of certain equipment even 5nowin3 that he has no funds or insufficient fundsin the ban5 is not liable if the lessor of the equipment pulled out the loanedequipment. 4he drawer has no obli3ation to ma5e 3ood the chec5 because there is nomore deposit to 3uaranty.

ISSUANCE O) GUARANTEE C(EC@SW(IC( WAS DIS(ONORED IN ,IOLATION

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O) T(E LAW AND ITS PURPOSE

4he intention of the framers of @P ## is to ma5e a mere act of issuin3 aworthless chec5 malum prohibitum. In prosecutions for violation of @P ## thereforepre


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presentment; and (c, the chec5 is subsequently dishonored by the drawee ban5 forinsufficiency of funds or credit or would have been dishonored for the same reason hadnot the drawer without valid reason ordered the ban5 to stop payment. (0y v ourt of Appeals ! ""%&&& )uly #+ "%%7,

JURISDICTION INBP 22 CASES

In respect of the @ouncin3 chec5s case the offense also appears to be continuin3 innature. It is true that the offense is committed by the very fact of its performance(olmenares vs. Nillar :o. L-#7"#' =ay #% "%7& S!A "+',; and that the@ouncin3 hec5s Law penaliBes not only the fact of dishonor of a chec5 but also the actof ma5in3 or drawin3 and issuance of a bouncin3 chec5 (People vs. ?on. Neridiano II:o. L-'##6 "# S!A $#,. 4he case therefore could have been filed also in@ulacan. As held in ue vs. People of the Philippines .!. :os. 7$#"7-"+ September"" "%+7 /the determinative factor (in determinin3 venue, is the place of the issuanceof the chec5/. ?owever it is li5ewise true that 5nowled3e on the part of the ma5er or

drawer of the chec5 of the insufficiency of his funds which is an essential in3redient of the offense is by itself a continuin3 eventuality whether the accused be within oneterritory or another (People vs. ?on. =anBanilla .!. :os. ''&&-&6 ecember """%+7,. Accordin3ly


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estafa if a chec5 is issued in payment of a pre-e1istin3 obli3ation the ourt of Appealspointed out that the petitioner obviously failed to distin3uish a violation of @.P. @l3. ##from estafa under Article "$ (#, Hd of the !evised Penal ode. It further stressedthat @.P. @l3. ## applies even in cases where dishonored chec5s were issued as a3uarantee or for deposit only for it ma5es no distinction as to whether the chec5swithin its contemplation are issued in payment of an obli3ation or merely to 3uaranteethe said obli3ation and the history of its enactment evinces the definite le3islative

intent to ma5e the prohibition all-embracin3. (Ibasco vs A %E$E%',

ACTUAL @NOWLEDGE O) INSU))ICIENC-O) )UNDS ESSENTIAL IN BP 22

Mnowled3e of insufficiency of funds or credit in the drawee ban5 for the paymentof a chec5 upon its presentment is an essential element of the offense. 4here is aprima facie presumption of the e1istence of this element from the fact of drawin3issuin3 or ma5in3 a chec5 the payment of which was subsequently refused forinsufficiency of funds. It is important to stress however that this is not a conclusivepresumption that forecloses or precludes the presentation of evidence to the contrary.

(Lim Lao v A; 'E#&E%7,

W(EN LAC@ O) @NOWLEDGE ANDLAC@ O) POWER TO )UND T(EC(EC@S IN CASES O) BP 22 A DE)ENSE

After a thorou3h review of the case at bar the ourt finds that Petitioner LinaLim Lao did not have actual 5nowled3e of the insufficiency of funds in the corporateaccounts at the time she affi1ed her si3nature to the chec5s involved in this case atthe time the same were issued and even at the time the chec5s were subsequentlydishonored by the drawee ban5.

4he scope of petitioner2s duties and responsibilities did not encompass thefundin3 of the corporation2s chec5s; her duties were limited to the mar5etin3department of the @inondo branch. 0nder the or3aniBational structure of Premiere9inancin3 orporation fundin3 of chec5s was the sole responsibility of the 4reasuryepartment. (Lim Lao v A; 'E#&E%7

LAC@ O) ADE0UATE NOTICE O)DIS(ONOR! A DE)ENSE

4here can be no prima facie evidence of 5nowled3e of insufficiency of funds inthe instant case because no notice of dishonor was actually sent to or received by thepetitioner.

4he notice of dishonor may be sent by the offended party or the drawee ban5.4he trial court itself found absent a personal notice of dishonor to Petitioner Lina LimLao by the drawee ban5 based on the unrebutted testimony of >campo /(t,hat thechec5s bounced when presented with the drawee ban5 but she did not inform anymorethe @inondo branch and Lina Lim Lao as there was no need to inform them as thecorporation was in distress./ 4he ourt of Appeals affirmed this factual findin3.Pursuant to prevailin3


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T(E PENALT- O) IMPRISONMENT IN CASES O) ,IOLATION O) B.P. 22WAS NOT DELETED.

A word on themodified penalty imposed by the !4. ontrary to its reasonin3 the penalty of imprisonment in cases of violation of @.P. ## was not deleted. As clarified byAdministrative ircular "-#&&" the clear tenor and intention of Administrative ircular

"#-#&&& is not to remove imprisonment as an alternative penalty but to lay down arule of preference in the application of the penaltie provided for in @.P. ##.(2ernardo vs. People) G.R. o. "33$45) April 6) 7558%

T(E 53DA- PERIOD IS NOT AN ELEMENT O) T(E O))ENSE

In 8on3 v. ourtof Appeals the ourt ruled that the %&-day period provided in the law is not an elementof the offense. :either does it dischar3e petitioner from his duty to maintain sufficientfunds in the account within a reasonable time from the date indicated in the chec5.Accordin3 to current ban5in3 practice the reasonable period within which to present a

chec5 to the drawee ban5 is si1 months. 4hereafter the chec5 becomes stale and thedrawer is dischar3ed from liability thereon to the e1tent of the loss caused by the delay.(Arceo) Jr. vs. People) G.R. o. "73") July "8) 755$%

,IOLATION O) B.P. 22

8here a creditor has collected more than a sufficient amount to cover the value of thechec5s char3in3 the debtor with a criminal offense under the @ouncin3 chec5s Law Q alon3 time after the collection is no lon3er tenable nor


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4he law is broad enou3h to include within its covera3e the ma5in3 andissuance of a chec5 by one who has no account with a ban5 or where such account hasalready been closed when the chec5 was presented for payment. As the ourt inLoBano e1plainedD J4he effect of the issuance of a wortheless chec5s transcends theprivate interests of the parties directly involved in the transaction and touches theinterests of the community at lar3e. 4he mischief it creates is not only a wron3 to the

payee or holder but also an in


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JO&N DY "#. POPL O$ %& P&'L'PP'N# .*. NO. 15,312 NO"B* 14200,

4o be liable under Section " of 2.P. 2l,. 77 the chec5 must be dishonored bythe drawee ban5 for insufficiency of funds or credit or dishonored for the same reasonhad not the drawer without any valid cause ordered the ban5 to stop payment.

Si3nificantly li5e Article "$ of the !evised Penal ode 2.P. 2l,. 77 also spea5sonly of insufficiency of funds and does not treat of uncollected deposits. 4o repeat wecannot interpret the law in such a way as to e1pand its provision to encompass thesituation of uncollected deposits because it would ma5e the law more onerous on thepart of the accused. A3ain criminal statutes are strictly construed a3ainst theovernment and liberally in favor of the accused.

AN%'7*A$% ; O**UP% P*A%'# A%

(*A NO 301/)

ANTIGRA)T AND CORRUPTPRACTICES ACT

Corrupt practices of public officers.

(a, Persuadin3 inducin3 or influencin3 another public officer to perform an actconstitutin3 a violation of rules and re3ulations duly promul3ated by competentauthority or an offense in connection with the official duties of the latter orallowin3 himself to be persuaded induced or influenced to commit such violationor offense.

(b, irectly or indirectly requestin3 or receivin3 any 3ift present share percenta3eor benefit for himself or for any other person in connection with any contract ortransaction between the overnment and any other part wherein the public officerin his official capacity has to intervene under the law.

(c, irectly or indirectly requestin3 or receivin3 any 3ift present or other pecuniary ormaterial benefit for himself or for another from any person for whom the publicofficer in any manner or capacity has secured or obtained or will secure or obtain

any overnment permit or license in consideration for the help 3iven or to be3iven without pre


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employees of offices or 3overnment corporations char3ed with the 3rant of licensesor permits or other concessions.

(f , :e3lectin3 or refusin3 after due demand or request without sufficient


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althou3h there may be instances where both elements concur. (Santia3o vsarchitorena et al. # ec. %,.

In 'eoroda v 9andi,anbayan the Supreme ourt has ruled that the offender incausin3 undue in


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c. the public officer acted with manifest partiality evident bad faith or 3rossine1cusable ne3li3ence; and

d. his action caused undue in


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Li5ewise it was specifically declared in the case of *n,co vs. 9ance0 .!. :o.L-###& "+ ecember "%'7 #" S!A "#%# that /4he rulin3 therefore that 2when thepeople have elected a man to office it must be assumed that they did this with5nowled3e of his life and character and that they disre3arded or for3ave his faults ormisconduct if he had been 3uilty of any2 refers only to an action for removal from officeand does not apply to a criminal case/

learly even if the alle3ed unlawful appointment was committed durin3=a3hiran32s first term as baran3ay chairman and the =otion for his suspension wasonly filed in "%%$ durin3 his second term his re-election is not a bar to his suspensionas the suspension sou3ht for is in connection with a criminal case. (onducto v.=onBon; A.=. :o. =4)-%+-""67 )uly # "%%+,

REELECTION IN PUBLIC O))ICEE*TINGUIS(ING ONL- (ISADMINISTRATI,E LIABILIT- BUTNOT (IS CRIMINAL LIABILIT-

As early as "+ ecember "%'7 in *n,co v. 9ance0 "7 this ourt e1plicitly ruledthat the re-election of a public official e1tin3uishes only the administrative but not thecriminal liability incurred by him durin3 his previous term of office thusD

4he rulin3 therefore that /when the people have elected a man to hisoffice it must be assumed that they did this with 5nowled3e of his life and characterand that they disre3arded or for3ave his faults or misconduct if he had been 3uiltyof any/ refers only to an action for removal from office and does not apply tocriminal case because a crime is a public wron3 more atrocious in character thanmere misfeasance or malfeasance committed by a public officer in the dischar3e of his duties and is in


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3rounds set out in !ule ""7 of the !ules of ourt. @ut once a proper determination of the validity of the information has been made it becomes the ministerial duty of thecourt to forthwith issue the order of preventive suspension. 4he court has no discretionfor instance to hold in abeyance the suspension of the accused official on the prete1tthat the order denyin3 the latter2s motion to quash is pendin3 review before theappellate courts. (Se3ovia v. Sandi3anbayan; ! "#6&'7 =ar. #7 "%%+,

GUIDELINES TO BE )OLLOWEDIN PRE,ENTI,E SUSPENSION CASES

/In the leadin3 case of Luciano) et al. vs. 'ariano et al. (L-#%$& )uly &"%7" 6& S!A "+7, we have set out the 3uidelines to be followed by the lowercourts in the e1ercise of the power of suspension under Section " of the law towitD

(c, @y way of broad 3uidelines for the lower courts in the e1erciseof the power of suspension from office of public officers char3ed under a validinformation under the provisions of !epublic Act :o. &"% or under the

provisions of the !evised Penal ode on bribery pursuant to section " of saidAct it may be briefly stated that upon the filin3 of such information the trialcourt should issue an order with proper notice requirin3 the accused officer toshow cause at a specific date of hearin3 why he should not be orderedsuspended from office pursuant to the cited mandatory provisions of the Act.8here either the prosecution seasonably files a motion for an order of suspension or the accused in turn files a motion to quash the information orchallen3es the validity thereof such show-cause order of the trial court wouldno lon3er be necessary. 8hat is indispensable is that the trial court duly hearthe parties at a hearin3 held for determinin3 the validity of the informationand thereafter hand down its rulin3 issuin3 the correspondin3 order of suspension should it uphold the validity of the information or withhold suchsuspension in the contrary case.

(d, :o specific rules need be laid down for such pre-suspensionhearin3. Suffice it to state that the accused should be 3iven a fair andadequate opportunity to challen3e the validity of the criminal proceedin3sa3ainst him e.3. that he has not been afforded the ri3ht of due preliminaryinvesti3ation the act for which he stands char3ed do not constitute a violationof the provisions of !epublic Act :o. &"% or of the bribery provisions of the!evised Penal ode which would warrant his mandatory suspension from officeunder Section " of the Act or he may present a motion to quash theinformation on any of the 3rounds provided in !ule ""7 of the !ules of ourt.4he mandatory suspension decreed by the act upon determination of thependency in court or a criminal prosecution for violation of the Anti-raft Act

or for bribery under a valid information requires at the same time that thehearin3 be e1peditious and not unduly protracted such as to thwart theprompt suspension envisioned by the Act. ?ence if the trial court say findsthe 3round alle3ed in the quashal motion not to be indubitable then it shall becalled upon to issue the suspension order upon its upholdin3 the validity of theinformation and settin3 the same for trial on the merits.2 (Se3ovia v.Sandi3anbayan,

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W(EN MA- A PUBLIC O))ICER BELIABLE )OR CAUSING UNDUE INJUR-UNDER SEC. e o9 RA 3$5

111 111 111

(c, ausin3 any undue in


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It would appear that petitioner2s failure or refusal to act on the complainant2svouchers or the delay in his actin3 on them more properly falls under Sec. HfD

/(f, :e3lectin3 or refusin3 after due demand or request withoutsufficient


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UNDUE DELA- IN PRELIMINAR-IN,ESTIGATIONS ,IOLATI,E O)DUE PROCESS AND A GROUND TO DISMISS

After a careful review of the facts and circumstances of this case we are

constrained to hold that the inordinate delay in terminatin3 the preliminaryinvesti3ation and filin3 the information in the instant case is violative of theconstitutionally 3uaranteed ri3ht of the petitioner to due process and to a speedydisposition of the cases a3ainst him. Accordin3ly the informations in riminal ases:os. "&6%% "&$&& "&$&" "&$ and "&$& should be dismissed. In view of thefore3oin3 we find it unnecessary to rule on the other issues raised by petitioner.(4atad v. Sandi3anbayan,

SECTION B! RA 3$5

ELEMENTS

". 4he offender is a public officer#. 8ho requested or received a 3ift a present a share a percenta3e or a benefit

. >n behalf of the offender or any other person

6. In connection with a contract or transaction with the 3overnment

$. In which the public officer in an official capacity under the law has the ri3ht to

intervene.

(Garcia vs. 9andi,anbayan) G.R. o. "###8) ovember 75) 7553%

SECTION # o9 #e AniGra9 La

ESSENTIAL ELEMENTS

". 4he accused is a public officer;

#. ?e has a direct or indirect financial or pecuniary interest in any business contract

or transaction;

. ?e eitherD

a. Intervenes or ta5es part in his official capacity in connection with such interest;

or

b. Is prohibited from havin3 such interest by the onstitution or by law.

TWO MODES B- W(IC( A PUBLIC O))ICER MA- ,IOLATE SEC. ( O) RA3$5

In other words there are two modes by which a public officer who has a director indirect financial or pecuniary interest in any business contract or transaction mayviolate Sec. (h, of !A &"%. 4he first mode is when the public officer intervenes orta5es part in his official capacity in connection with his financial or pecuniary interest inany business contract or transaction. 4he second mode is when he is prohibited fromhavin3 such an interest by the onstitution or by law. (&omin,o vs. 9andi,anbayan)G.R. "$"8#) :ctober 7#) 755#%

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T(E PRESCRIPTI,E PERIOD )OR T(E O))ENSES S(OULD BE COMPUTED )ROMT(E DISCO,ER- O) T(E COMMISSION T(EREO)

4he issue of prescription has lon3 been laid to rest in the aforementionedPresidential Ad 1oc Fact-Findin, Committee on 2eest Loans v. &esierto where the

ourt heldD

1 1 1 it was well-ni3h impossible for the State the a33rieved party tohave 5nown the violations of !.A. :o. &"% at the time the questionedtransactions were made because as alle3ed the public officialsconcerned connived or conspired with the /beneficiaries of the loans.24hus we a3ree with the >==I44GG that the prescriptive period for theoffenses with which respondents in >=@-&-%'-&%'+ were char3edshould be computed from the discovery of the commission thereof andnot from the day of such commission.

4he assertion by the >mbudsman that the phrase 2if the same not be

5nown2 in Section # of Act :o. #' does not mean 2lac5 of 5nowled3e2but that the crime 2is not reasonably 5nowable2 is unacceptable as itprovides an interpretation that defeats or ne3ates the intent of the lawwhich is written in a clear and unambi3uous lan3ua3e and thus providesno room for interpretation but only application.

As to when the period of prescription was interrupted the second para3raph of Section # Act :o. #' as amended provides that prescription is interrupted 2whenproceedin3s are instituted a3ainst the 3uilty person.

!ecords show that the act complained of was discovered in "%%#. 4he complaintwas filed with the >ffice of the >mbudsman on April $ "%%$ or within three (, years

from the time of discovery. 4hus the filin3 of the complaint was well within theprescriptive period of "$ years. (PCGG vs. &esierto) G.R. o. "576") July $) 7558%

JU*'#P*UDN<

L'NDA AD'AO7PALA'O# "#. POPL .*. NO. 1+,544 A*& 31 200/

Section (b, penaliBes three distinct acts Q ", demandin3 or requestin3; #,receivin3; or , demandin3 requestin3 and receivin3 Q any 3ift present sharepercenta3e or benefit for oneself or for any other person in connection with anycontract or transaction between the 3overnment and any other party wherein a public

officer in an official capacity has to intervene under the law. Gach of these modes of committin3 the offense is distinct and different from one another. Proof of e1istence of any of them suffices to warrant conviction.

POPL "#. *OUALD! .*. NO. 1++510 AP*'L 2/ 200/

4he initial filin3 of the complaint in "%+% or the preliminary investi3ation by theP that preceded it could not have interrupted the fifteen ("$,-year prescriptionperiod under !ep. Act :o. &"%. As held in Cru0) Jr. v. 9andi,anbayan) theinvesti3atory power of the P e1tended only to alle3ed ill-3otten wealth casesabsent previous authority from the President for the P to investi3ate such 3raft and

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corruption cases involvin3 the =arcos cronies. Accordin3ly the preliminary investi3ationconducted by the P leadin3 to the filin3 of the first information is void ab initio andthus could not be considered as havin3 tolled the fifteen ("$,-year prescriptive periodnotwithstandin3 the 3eneral rule that the commencement of preliminary investi3ationtolls the prescriptive period. After all a void ab initio proceedin3 such as the firstpreliminary investi3ation by the P could not be accorded any le3al effect by thisourt.

4he rule is that for criminal violations of !ep. Act :o. &"% the prescriptiveperiod is tolled only when the >ffice of the >mbudsman receives a complaint orotherwise initiates its investi3ation. As such preliminary investi3ation was commencedmore than fifteen ("$, years after the imputed acts were committed the offense hadalready prescribed as of such time.

ondcto . on6on= A.. No. %J7/,71149 J>y 2 1//,) =ee al=o =e". $

In 'eoroda v 9andi,anbayan) the Supreme ourt has ruled that the offender incausin3 undue in


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PROSTITUTES CAN BE A ,ICTIM O) RAPE

As to the su33estion that A:ALIA was a prostitute that alone even if it beconceded cannot absolve him of his liability for rape. 9irst prostitutes can be victims of rape. (People v. Alfeche,

REASON W(- DWELLINGIS AN AGGRA,ATING CIRCUMSTANCE

wellin3 is considered an a33ravatin3 circumstance because primarily of thesanctity of privacy the law accords to human abode. 4he dwellin3 need not be ownedby the victim. 4hus in People v. 2asa dwellin3 was appreciated althou3h the victimswere 5illed while sleepin3 as 3uests in the house of another. As aptly stated in Peoplev. 2alansit D /H>ne does not lose his ri3ht of privacy where he is offended in the houseof another because as Han invited 3uest Hor a housemaid as in the instant case hethe stran3er is sheltered by the same roof and protected by the same intimacy of life itaffords. It may not be his house but it is even for a brief moment /home/ to him. ?e

is entitled to respect even for that short moment./ (People v. Alfeche,

W(EN RELATIONS(IP IS NOT ANALTERNATI,E CIRCUMSTANCEUNDER ART. $7 O) T(E RPC

learly then the father-dau3hter relationship in rape cases or between accusedand !elanne in this case has been treated by on3ress in the nature of a specialcircumstance which ma5es the imposition of the death penalty mandatory. ?encerelationship as an alternative circumstance under Article "$ of the !evised Penal odeappreciated as an a33ravatin3 circumstance should no lon3er be applied in view of theamendments introduced by !.A. :o. 7'$%. It may be pointed however that withoutthe fore3oin3 amendment relationship would still be an a33ravatin3 circumstance inthe crimes of rape (Article $, and acts of lasciviousness (Article ',. $7

If relationship in the instant case were to be appreciated under Article "$ of the!evised Penal ode the penalty imposable on accused then would not be death butmerely reclusion perpetua for assumin3 that !elanne2s testimony in court would haveconfirmed what she narrated in her sworn statement (G1hibit //, no circumstancethen attended the commission of the rape which could brin3 the crime under anyprovision of Article $ which imposes a penalty hi3her than reclusion perpetua or of reclusion perpetua to death. (People v. =anyuhod )r.,

W(EN O))ENDER IS STEP GRANDPARENT!(E IS NOT CONSIDERED AN ASCENDANTUNDER RA &7 AND RA F675

4he trial court has thus held incorrectly in considerin3 appellant who is le3allymarried to !o1an2s natural 3randmother as amon3 those named in the enumeration.Appellant is merely a step-3randparent who obviously is neither an /ascendant/ nor a/step-parent/ of the victim. In the recent case of People vs. Atop #6 the ourt re


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W(- DEAT( PENALT- IS NOT A CRUEL AND UNUSUAL PUNIS(MENT

/4he penalty complained of is neither cruel un


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(7, !obbery with homicide rape or intentional mutilation (Sec. %,;(+, estructive arson if what is burned is (a, one or more buildin3s or

edifice; (b, a buildin3 where people usually 3ather; (c, a train ship orairplane for public use; (d, a buildin3 or factory in the service of public utilities; (e, a buildin3 for the purpose of concealin3 ordestroyin3 evidence >r a crime; (f, an arsenal firewor5s factory or3overnment museum; and (3, a storehouse or factory of e1plosive

materials located in an inhabited place; or re3ardless of what isburned if the arson is perpetrated by two or more persons (Sec. "&,;

(%, !ape attended by any of the followin3 circumstancesD (a, the rape iscommitted with a deadly weapon; (b, the rape is committed by twoor more persons; and (c, the rape is attempted or frustrated andcommitted with homicide (Sec. "",;

("&, Plunder involvin3 at least P$& million (Sec. "#,;("", Importation of prohibited dru3s

(Sec. ",;("#, Sale administration delivery distribution and transportation of

prohibited dru3s (id.,;(", =aintenance of den dive or resort for users of prohibited dru3s (id.,;

("6, =anufacture of prohibited dru3s (id.,;("$, Possession or use of prohibited dru3s in certain specified amounts(id.,;

("', ultivation of plants which are sources of prohibited dru3s (id.,("7, Importation of re3ulated dru3s

(Sec. "6,;("+, =anufacture of re3ulated dru3s (id.,;("%, Sale administration dispensation delivery transportation and

distribution of re3ulated dru3s (id.,;(#&, =aintenance of den dive or resort for users of re3ulated dru3s (Sec.

"$,;(#", Possession or use of re3ulated dru3s in specified amounts (Sec. "',;(##, =isappropriation misapplication or failure to account dan3erous dru3s

confiscated by the arrestin3 officer (Sec. "7,;(#, Plantin3 evidence of dan3erous dru3s in person or immediate vicinity

of another to implicate the latter (Sec. "%,; and(#6, arnappin3 where the owner driver or occupant of the carnapped

motor vehicle is 5illed or raped (Sec. #&,.(People v. Gche3aray,

W(AT ARE T(E MANDATOR-CRIMES PUNIS(ABLE B- MANDATOR-DEAT( PENALT- UNDER RA F675

>n the other hand under !.A. :o. 7'$% the mandatory penalty of death is imposed inthe followin3 crimesD

("% ;ualified bribery

/If any public officer is entrusted with law enforcement and he refrains fromarrestin3 or prosecutin3 an offender who has committed a crime punishable byreclusion perpetua andEor death in consideration of any offer promise 3ift or presenthe shall suffer the penalty for the offense which was not prosecuted.If it is the public officer who as5s or demands such 3ift or present he shall suffer thepenalty of death./ (Sec. 6,

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(7%


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/:otwithstandin3 the provision of Section #& of this Act to the contrary if thevictim of the offense is a minor or should a prohibited dru3 involved in any offenseunder this Section be the pro1imate cause of the death of victim thereof the ma1imumpenalty Hof death herein provided shall be imposed./ (Sec. ",

(3% 'aintenance of den) dive) or resort for users of proibited dru,s =ere te

victim is a minor or te victim dies

/:otwithstandin3 the provisions of Section #& of this Act to the contrary thema1imum of the penalty Hof death shall be imposed in every case where a prohibiteddru3 is administered delivered or sold to a minor who is allowed to use the same insuch place.Should a prohibited dru3 be the pro1imate case of the death of a person usin3 thesame in such den dive or resort the ma1imum penalty herein provided shall beimposed on the maintainer notwithstandin3 the provisions of Section #& of this Act tothe contrary./ (Sec. ",

(8% 9ale) administration) dispensation) delivery) distribution and transportation of

re,ulated dru,s =ere te victim is a minor or te victim dies

/:otwithstandin3 the provisions of Section #& of this Act to the contrary if thevictim of the offense is a minor or should a re3ulated dru3 involved in any offenseunder this Section be the pro1imate cause of the death of a victim thereof thema1imum penalty Hof death herein provided shall be imposed./ (Sec. "6,

(4% 'aintenance of den) dive) or resort for users of re,ulated dru,s =ere tevictim is a minor or te victim dies

/:otwithstandin3 the provisions of Section #& of this Act to the contrary thema1imum penalty Hof death herein provided shall be imposed in every case where are3ulated dru3 is administered delivered or sold to a minor who is allowed to use thesame in such place.Should a re3ulated dru3 be the pro1imate cause of death of a person usin3 the same insuch den dive or resort the ma1imum penalty herein provided shall be imposed on themaintainer notwithstandin3 the provisions of Section #& of this Act to the contrary./(Sec. "$,

($% &ru, offenses if convicted are ,overnment officials) employees or officersincludin, members of police a,encies and armed forces

/4he ma1imum penalties Hof death provided for in Section 6 (", $(", ' 7+ % """# and " of Article II and Sections "6 "6-A "6(", "$A (", "' and "% of Article III Hof the an3erous ru3s Act of "%7# shall be imposed if those found 3uilty

or any of the same offenses are 3overnment officials employees or officers includin3members of police a3encies and the armed forces./ (Sec. "%,

("5% Plantin, of dan,erous dru,s as evidence in dru, offenses =it te mandatory deat penalty if convicted are ,overnment officials) employees or officers

/Any such above 3overnment official employee or officer who isfound 3uilty of 2plantin32 any dan3erous dru3s punished in Section s 67 + % and " of Article II and Sections "6 "6-A "$ and "' of Article III(of the an3erous ru3s Act of "%7#, in the person or in the immediate

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vicinity of another as evidence to implicate the latter shall suffer thesame penalty as therein provided./ (Sec. "%,

(""% *n all te crimes in RA. o. 83#$ in teir >ualified form

/8hen in the commission of the crime advanta3e was ta5en by the offender of his public position the penalty to be imposed shall be in its ma1imum Hof death

re3ardless of miti3atin3 circumstances.

4he ma1imum penalty Hof death shall be imposed if the offense was committedby any person who belon3s to an or3aniBedEsyndicated crime 3roup.

An or3aniBedEsyndicated crime 3roup means a 3roup of two or more personscollaboratin3 confederatin3 or mutually helpin3 one another for purposes of 3ain in thecommission of any crime./ (Sec. #,

(People v. Gche3aray,

TWO INSTANCES W(EN DEAT( MA-BE IMPOSED W(EN CONSTRUEDUNDER RA F675

4hus construin3 !.A. :o. 7'$% in pari materia with the !evised Penal odedeath may be imposed when (", a33ravatin3 circumstances attend the commission of the crime as to ma5e operative the provision of the !evised Penal ode re3ardin3 theimposition of the ma1imum penalty; and (#, other circumstances attend thecommission of the crime which indubitably characteriBe the same as heinous incontemplation of !.A. :o. 7'$% that


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/apital punishment ou3ht not to be abolished solely because it is substantiallyrepulsive if infinitely less repulsive than the acts which invo5e it. Fet the mountin3 Bealfor its abolition seems to arise from a sentimentaliBed hyperfastidiousness that see5s toe1pun3e from the society all that appears harsh and suppressive. If we are to preservethe humane society we will have to retain sufficient stren3th of character and will to dothe unpleasant in order that tranquillity and civility may rule comprehensively. It seemsvery li5ely that capital punishment is a . . . necessary if limited factor in that

maintenance of social tranquillity and ou3ht to be retained on this 3round. 4o dootherwise is to indul3e in the lu1ury of permittin3 a sense of false delicacy to rei3n overthe necessity of social survival./ (People v. Gche3aray,

RA 6%27 AS AMENDED B- RA F675W(EN PENALT- IN NEW LAW NOT )A,ORABLETO ACCUSED IT S(OULD BE RETAINED

Appellant in this case was convicted and meted the penalty of life imprisonmentand fine of twenty thousand pesos under !A '6#$ for transportin3 more or less ' 5ilosof mari


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8hile the number of persons 5illed does not alter the characteriBation of theoffense as robbery with homicide the multiplicity of the victims slain should have beenappreciated as an a33ravatin3 circumstance. 4his would preclude an anomaloussituation where from the standpoint of the 3ravity of the offense robbery with one5illin3 would be treated in the same way that robbery with multiple 5illin3s would be.(People N. 4imple,

ROBBER- WIT( (OMICIDE AND ROBBER- WIT( RAPE+ PRO,ISION O)ARTICLE 25% O) T(E RE,ISED PENAL CODE AS AMENDED B- REPUBLIC ACTF675 CANNOT BE APPLIED RETROACTI,EL-+ CASE AT BAR .

0nder Article #%6 (", of the !evised Penal ode robbery with homicide ispunishable by reclusion perpetua to death. In view however of the first para3raph of Section "% Article III of the "%+7 onstitution which provides thatD /Sec. "%. (",G1cessive fines shall not be imposed nor cruel de3radin3 or inhuman punishmentinflicted. :either shall death penalty be imposed unless for compellin3 reasonsinvolvin3 heinous crimes the on3ress hereafter provides for it. Any death penaltyalready imposed shall be reduced to reclusion perpetua/ (Gmphasis supplied, only thepenalty of reclusion perpetua could be imposed by the trial court. ?ence the attended

a33ravatin3 circumstances in this case had no impact upon the determination of theproper penalty by the trial court. @y !epublic Act :o. 7'$% (effective " ecember"%%, on3ress re-imposed the death penalty for certain heinous crimes includin3robbery with homicide and robbery with rape. @y the same statute Article #%6 of the!evised Penal ode was amended to read as followsD /Any person 3uilty of robbery withthe use of violence a3ainst or intimidation on any person shall sufferD ". 4he penalty of reclusion perpetua to death when by reason or on occasion of the robbery the crime of homicide shall have been committed or when the robbery shall have beenaccompanied by rape or intentional mutilation or arson. . . . (Gmphasis supplied, Article#%6 of the !evised Penal ode as amended by !.A. :o. 7'$% however cannot beapplied retroactively in this case. 4o do so would be to sub


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b. 4hat the prevention or compulsion is effected by violence either by materialforce or such a display of it as would produce intimidation and consequentlycontrol over the will of the offended party; and

c. that the person who restrains the will and liberty of another has no ri3ht todo so or in other words that the restraint is not made under authority of alaw or in the e1ercise of any lawful ri3ht.

(People -vs- Astor3a,

ACTUAL DETENTION OR LOC@ING UP! AN ESSENTIAL ELEMENT O)@IDNAPPING

Actual detention or /loc5in3 up/ is the primary element of 5idnappin3. If theevidence does not adequately prove this element the accused cannot be held liable for5idnappin3. In the present case the prosecution merely proved that appellant forciblydra33ed the victim toward a place only he 5new. 4here bein3 no actual detention orconfinement the appellant may be convicted only of 3rave coercion.

(People -vs- Astor3a; ! ""&&%7 ecember ## "%%7,

DANGEROUS DRUGS ACT O) $5F2 R.A. NO. 6%27+ SECTIONS $7 AND 23T(EREO) AS AMENDED B- R.A. NO. F675.

In People vs. 'artin 9imon y 9un,a (.!. :o. %+, decided on #% )uly "%%6this ourt ruled as followsD (", Provisions of !.A. :o. 7'$% which are favorable to theaccused shall be 3iven retroactive effect pursuant to Article ## of the !evised Penalode. (#, 8here the quantity of the dan3erous dru3 involved is less than the quantitiesstated in the first para3raph of Section #& of !.A. :o. '6#$ the penalty to be imposedshall ran3e from prision correccional to reclusion temporal and not reclusion perpetua.4he reason is that there is an overlappin3 error probably throu3h oversi3ht in thedraftin3 in the provisions on the penalty of reclusion perpetua as shown by its dualimposition i.e. as the minimum of the penalty where the quantity of the dan3erousdru3s involved is more than those specified in the first para3raph of the amendedSection #& and also as the ma1imum of the penalty where the quantity of thedan3erous dru3s involved is less than those so specified in the first para3raph. (,onsiderin3 that the aforesaid penalty of prision correccional to reclusion temporal shalldepend upon the quantity of the dan3erous dru3s involved each of the componentpenalties thereof prision correccional) prision mayor) and reclusion temporal shallbe considered as a principal imposable penalty dependin3 on the quantity such that thequantity of the dru3s enumerated in the second para3raph should then be divided intothree with the resultin3 quotient and double or treble the same as the bases fordeterminin3 the appropriate component penalty. (6, 4he modifyin3 circumstances inthe !evised Penal ode may be appreciated to determine the proper period of the

correspondin3 imposable penalty or even to effect its reduction by one or morede3rees; provided however that in no case should such 3raduation of penalties reducethe imposable penalty lower than prision correccional . ($, In appropriate instances theIndeterminate Sentence Law shall be applied and considerin3 that !.A. :o. 7'$% hasunqualifiedly adopted the penalties under the !evised Penal ode with their technicalsi3nification and effects then the crimes under the an3erous ru3s Act shall now beconsidered as crimes punished by the !evised Penal ode; hence pursuant to Section" of the Indeterminate Sentence Law the indeterminate penalty which may be imposedshall be one whose ma1imum shall be within the ran3e of the imposable penalty andwhose minimum shall be within the ran3e of the penalty ne1t lower in de3ree to theimposable penalty. 8ith the fore3oin3 as our touchstones and it appearin3 that the

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quantity of the shabu recovered from the accused in this case is only &.&%$+ 3ram theimposable penalty under the second para3raph of Section #& of !.A. :o. '6#$ asfurther amended by Section "7 of !.A. :o. 7'$% should be prision correccional .Applyin3 the Indeterminate Sentence Law the accused may then be sentenced tosuffer an indeterminate penalty ran3in3 from si1 (', months of arresto mayor asminimum to si1 (', years of prision correccional as ma1imum.

ELEMENTS O) E,IDENT PREMEDITATION

(", 4he time when the offender determined to commit the crime; (#, an actmanifestly indicatin3 that the offender had clun3 to his determination; and (,sufficient lapse of time between the determination and the e1ecution to allow theoffender to reflect on the consequences of his act. (PP -vs- R:G+L*: GALA')

Accused-Appellant. G.R. o. ""85) Feb. "#) 7555%

DATE O) E))ECTI,IT- O) RA F675! ETC.

!epublic Act :o. 7'$% too5 effect on " ecember "%%. Accordin3ly the saidlaw only applies to crimes defined therein includin3 rape which were committed afterits effectivity. It cannot be applied retroactively because to do so would 3o a3ainstthe constitutional prohibition on ex post facto la=s. 9or this reason in order for thedeath penalty to be imposable it is incumbent upon the prosecution to establishbeyond a shadow of doubt that the case of the accused is already covered by !epublicAct :o. 7'$%.

AN E* POST )ACTO LAW (AS BEEN DE)INED AS ONE W(IC(

(a% ma5es criminal an act before the passa3e of the law and which was innocentwhen done and punishes such an act;

(b% a33ravate a crime or ma5es it 3reater than it was when committed;

(c% chan3es the punishment and inflicts a 3reater punishment than the law anne1edto the crime when committed;

(d% alters the le3al rules of evidence and authoriBes conviction upon less ordifferent testimony than the law required at the time of the commission of theoffense;

(e% assumin3 to re3ulate civil ri3hts and remedies only in effect imposes penalty or

deprivation of a ri3ht for somethin3 which when done was lawful; and

(f% deprives person accused of a crime of some lawful protection to which he hasbecome entitled such as the protection of a former conviction or acquittal or aproclamation of amnesty. (PP -vs- C1AR*?: *9@G 'AG2A@A) G.R. o."74444) &ec. 6) "$$$%

*PUBL' A% /34+ AN A% P*O&'B'%'N %& 'PO#'%'ON O$ DA%& PNAL%Y 'N %&

P&'L'PP'N#

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DEAT( PENALT- IS PRO(IBITED

4he imposition of the penalty of death is hereby prohibited. Accordin3ly!epublic Act :o. +"77 otherwise 5nown as the Act esi3natin3 eath by lethalin


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SG4I>: ". Section " Presidential ecree :o. "+'' as amended is hereby furtheramended to read as followsD

/SG4I>: ". 0nlawful =anufacture Sale Acquisition ispositionor Possession of 9irearms or Ammunition or Instruments 0sed or

Intended to be 0sed in the =anufacture of 9irearms or Ammunition. 4he penalty of prision correccional in its ma1imum period and a fine of not less than 9ifteen thousand pesos (P"$&&&, shall be imposed uponany person who shall unlawfully manufacture deal in acquire disposeor possess any low powered firearm such as rimfire hand3un .+& or .# and other firearm of similar firepower part of firearm ammunition ormachinery tool or instrument used or intended to be used in themanufacture of any firearm or ammunitionD Provided 4hat no othercrime was committed.

/4he penalty of prision mayor in its minimum period and a fine of 4hirty thousand pesos (P&&&&, shall be imposed if the firearm is

classified as hi3h powered firearm which includes those with bores bi33erin diameter than .+ caliber and % millimeter such as caliber .6& .6" .66 .6$ and also lesser calibered firearms but considered powerful suchas caliber .$7 and caliber .## center-fire ma3num and other firearmswith firin3 capability of full automatic and by burst of two or threeDProvided however 4hat no other crime was committed by the personarrested.

/If homicide or murder is committed with the use of an unlicensedfirearm such use of an unlicensed firearm shall be considered as ana33ravatin3 circumstance.

/If the violation of this Section is in furtherance of or incident toor in connection with the crime of rebellion or insurrection sedition orattempted coup d2etat such violation shall be absorbed as an element of the crime of rebellion or insurrection sedition or attempted coup d2etat.

/4he same penalty shall be imposed upon the owner presidentmana3er director or other responsible officer of any public or privatefirm company corporation or entity who shall willfully or 5nowin3ly allowany of the firearms owned by such firm company corporation or entity tobe used by any person or persons found 3uilty of violatin3 the provisionsof the precedin3 para3raphs or willfully or 5nowin3ly allow any of them touse unlicensed firearms or firearms without any le3al authority to becarried outside of their residence in the course of their employment.

/4he penalty of arresto mayor shall be imposed upon any personwho shall carry any licensed firearm outside his residence without le3alauthority therefor./

SG4I>: #. Section of Presidential ecree :o. "+'' as amended is hereby furtheramended to read as followsD

/SG4I>: . 0nlawful =anufacture Sale Acquisition ispositionor Possession of G1plosives. 4he penalty of prision mayor in its

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In crimes involvin3 ille3al possession of firearm the prosecution has the burdenof provin3 the elements thereof viBD

a. the e1istence of the sub


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4hus the unauthoriBed use of a weapon which has been duly licensed in thename of its ownerEpossessor may still a33ravate the resultant crime. In the case atbar althou3h appellants may have been issued their respective licenses to possessfirearms their carryin3 of such weapons outside their residences and theirunauthoriBed use thereof in the 5illin3 of the victim may be appreciated as ana33ravatin3 circumstance in imposin3 the proper penalty for murder. (Pp. N. =olina;r ""$+$-'; )uly ## "%%+,

ILLEGAL POSSESSION O) )IREARM ONL-SPECIAL AGGRA,ATING CIRCUMSTANCEIN CRIMES O) (OMICIDE! ETC.

8here murder or homicide was committed the separate penalty for ille3alpossession shall no lon3er be meted out since it becomes merely a special a33ravatin3circumstance.

4his statutory amendment may have been an offshoot of our remar5s inPp. . ?ac-an and Pp. . ;uiada D

Beiter is te 7nd para,rap of 9ec." meant to punis omicide or murder =it deat if eiter crime is committed =it te use of an

unlicensed firearm) i.e.) to consider suc use merely as a >ualifyin,circumstance and not as an offense. ?at could not ave been teintention of te la=maer because te term BpenaltyD in te subect

provision is obviously meant to be te penalty for ille,al possession of firearm and not te penalty for omicide or murder. Ee explicitly stated in ?ac-an

?ere is no la= =ic renders te use of an unlicensed firearm as an

a,,ravatin, circumstance in omicide or murder. @nder an informationcar,in, omicide or murder) te fact tat te deat =eapon =as an

unlicensed firearm cannot be used to increase te penalty for te 7 nd

offense of omicide or murder to deat (or reclusion perpetua under te "$48 Constitution%. ?e essential point is tat te unlicensed caracter or condition of te instrument used in destroyin, uman lifeor committin, some oter crime) is not included in te inventory of a,,ravatin, circumstances set out in Article " of te Revised Penal Code.

A law may of course be enacted ma5in3 use of an unlicensed firearm as aqualifyin3 circumstance.K (People v. =olina; ! ""$+$-' )uly ## "%%+,

NEW PENALT- )OR LOW POWERED

)IREARM IN ILLEGAL POSSESSIONO) )IREARMS

Petitioner fortunately for him is nonetheless not entirely bereft of relief. 4heenactment and approval on &' )un "%%7 of !A +#%6 bein3 favorable to him shouldnow apply. 0nder this new law the penalty for possession of any low powered firearmis only prision correccional in its ma1imum period and a fine of not less thanP"$&&&.&&.

Applyin3 the Indeterminate Sentence Law the present penalty that may beimposed is anywhere from two years four months and one day to four years and two

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months of prision correccional in its medium period as minimum up to anywhere fromfour years two moths and one day to si1 years of prision correccional in its ma1imumperiod as ma1imum.. 4he court in addition may impose a fine consistent with theprinciple that an appeal in a criminal case throws the whole case open for review by theappellate tribunal. (=ario !abact +E%7,

ACTS PUNIS(ABLE:

". Jupon any person who shall unlawfully manufacture deal in acquire dispose orpossess any low powered firearm such as rimfire hand3un .+& or .# and otherfirearm of similar firepower part of firearm ammunition or machinery tool orinstrument used or intended to be used in the manufacture of any firearm orammunitionK

#. /If homicide or murder is committed with the use of an unlicensed firearm suchuse of an unlicensed firearm shall be considered as an a33ravatin3 circumstance.K

. /If the violation of this Section is in furtherance of or incident to or in connection

with the crime of rebellion or insurrection sedition or attempted coup d2etat suchviolation shall be absorbed as an element of the crime of rebellion or insurrectionsedition or attempted coup d2etat.K

6. /4he same penalty shall be imposed upon the owner president mana3er director orother responsible officer of any public or private firm company corporation or entitywho shall willfully or 5nowin3ly allow any of the firearms owned by such firm companycorporation or entity to be used by any person or persons found 3uilty of violatin3 theprovisions of the precedin3 para3raphs or willfully or 5nowin3ly allow any of them touse unlicensed firearms or firearms without any le3al authority to be carried outside of their residence in the course of their employment.K

$. J4he penalty of arresto mayor shall be imposed upon any person who shall carryany licensed firearm outside his residence without le3al authority thereforK

'. JAny person who shall unlawfully tamper chan3e deface or erase the serialnumber of any firearmK.

7. JAny person who shall unlawfully repac5 alter or modify the composition of anylawfully manufactured e1plosivesK.

MALUM PRO(IBITUM

4he offense of ille3al possession of firearm is a malum prohibitum punished by aspecial law in which case 3ood faith and absence of criminal intent are not valid

defenses. (People v e racia 7E'E%6,

". =anufacture deal in acquire dispose or possess. It is these acts relative tofirearms. 4he obvious underlyin3 principle is the undesirability of the proliferation of firearms and their free traffic and possession. 4his is clear from the first two

JwhereasK clause of P.. "+''. It is then clear that ille3al possession etc. is amalum proibitum. 9or purpose of simplicity we will confine our analysis to

JpossessionK althou3h what we will discuss hereunder applies to manufacturedealin3 in acquirin3 or disposin3 as well.

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It is not correct to say without qualification that JintentK is immaterial. 'ntent as to ?ossesson s mmatea> . 'ntenton to ?ossess smatea>. 8hatever the purpose of the possession may be isconsistently immaterial. 4hat one was in possession of an unlicensedfirearms merely for one*s protection without intendin3 harm onanybody is a fruitless defense. It is the clear doctrine of such casesas People v. de la Rosa) #+6 S!A "$+ that Jmere possession

without criminal intent is sufficient on which to render a 8GNG! ?ossesson mst be estab>s@ed beyond easonab>edobt and in view of the special meanin3 that JpossessionK has incriminal law discovery by police officers alone of a firearmin theba33a3e or 3loves compartment of a car will not necessarily besufficient to sustain a conviction of the car owner or driver. Gssentialto the le3al concept of JpossessionK in ille3al possession cases isanimus possidendio. (People v. de la Rosa supra; People v. 9ayan,""& Phil $'$,.

?ow is animus possidendi establishedC 4here must be proved either by direct

or circumstantial evidence the JintentK of the accused to possess orto 5eep the firearm.

a.% Animus Possidendi is determined by recourse to overt acts prior to orsimultaneous with possession and other surroundin3 circumstances. (Peoplev. de la Rosa, when it is established that the accused purchased the weaponin question a 3ood case for animus possidendi is made.

b., Animus possidendi may also be inferred from the fact that an unlicensedfirearms was under the apparent control and power of the accussed. (Peoplev. erces S!A "76,

c.% People v. de Gu0man) .!. ""7%$#-$ (9ebruary "6 #&&", holds that the J3ravamenK for the offense of violation of P.."+'' is the possession of firearm without the necessary permit andEor license. J4he crime isimmediately consummated upon mere possession of a firearm devoid of le3al authority since it is assumed that the same is possed with Janimus

possidendi K oes it then follow that everyone found with the firearm is in JpossessionK thereof for the purpose of prosecution and conviction under P.."+'' as amended by !.A. +#%6C 4he results would be patently absurd.

i. A person who finds a firearms and ta5es it with him to the policestation for the purpose of turnin3 it over to the police should becommended rather than prosecuted.

ii. A person who is stopped at a chec5-point at which it isdiscovered that there is firearms Q placed either advertently orinadvertently in his ba33a3e compartment t@ot @sno>edCe - cannot be held liable for ille3al possession.

iii. If the offender was in possession of an unlicensed only on theoccasion of the shootin3 for transitory purpose and for the shortmoment in connection with the shootin3 the Supre ourt heldin People v. 'acaslin, #7 S!A #%% that there was noevidence of Janimus possidendiK.

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iv. It then appears to be the more reasonable position that wherea person is apprehended with an unlicensed weapon animuspossidendi will be disputably presumed. 4he accused maycontrovert the presumption of animus possidendi . 4o convictthe court needs proof beyond reasonable doubt of animus

possidendi.

".6 8hat the prosecution must prove for it to succeed under the law istwo-foldD first the e1istence of the firearm; second the absence of a license or a permit to possess. (People v. Ru,ay #%" S!A '%#,

a., 4o prove the e1istence of the firearm it is not absolutelynecessary that the ob


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#." It is clear that where there is no other offense e1cept the unlawfulpossession of a firearm the penalties provided for in the amended Section "shall be imposedD prision correccional in its ma1imum period for low-powered firearms and prision mayor in its ma1imum periods for hi3h-powered firearms. 4hus in People v. une0) .!. ""#&%# (=arch " #&&",holds that a person may be convicted of simple ille3al possession if theille3al possession is proved and the frustrated murder and murder case Q

involvin3 the use of the ille3al possession Q has not been sufficiently proved.People v. Avecilla .!. ""7& (9ebruary "$ #&&", teaches that Jthe crimeof ille3al possession of firearms in its simple form is committed any of thecrimes of murder homicide rebellion insurrection sedition or attemptedcoup d*etatK.

#.#. It is also clear that where either homicide or murder is committed withthe use of an unlicensed firearm such use shall constitute an Ja33ravatin3circumstancesK. It is well 5nown that !.A. +#%6 was initiated by Senator!amon !evilla as a favor to his friend !obin Padilla who was then servin3sentence for ille3al possession. It was therefore meant to be morebenevolent as it is in the penalties it impose. Senator !evilla however

could not see far enou3h (and re3rettably neither could other le3islators,and the effect at least in the case of murder is that it may send the accusedto the lethal in


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dismissed if they arose from the commissionK of crimes other than thoseindicated in Section " and of !.A. +#%6.

#.$ learly the law leads to absurd results for when the use of an unlicensedweapon attends the commission of a crime no matter how trivial the caseof ille3al possession recedes into ne moral lesson can be learnedDLaws passed as favor to one*s friend is a poor laws

OWNERS(IP IS NOT AN ESSENTIALELEMENT O) ILLEGAL POSSESSION

4he rule is that ownership is not an essential element of ille3al possession of firearms and ammunition. 8hat the law requires is merely possession which includesnot only actual physical possession but also constructive possession or the subwnership of the 3un is immaterial or irrelevant in violation of P "+'' asamended. >ne may be convicted of possession of an unlicensed firearm even if he isnot the owner thereof.

(People -vs- !eynaldo ruB ! :o.7'7#+ Au3ust "%++,

Gven if the 3un is /palti5/ there is a need to secure license for the 3un and if found without any license therefor the offender is liable for violation of P "+''.

(People vs- 9ilemon !amos ### S!A $$7,

If an unlicensed firearm is used to commit a crime other than homicide or

murder such a direct assault with attempted homicide the use of an unlicensed firearmis neither an a33ravatin3 circumstances nor a separate offense. Since the law uses theword ?omicide or =urder possession of an unlicensed firearm is not a33ravatin3 inAttempted ?omicide.

(People -vs- 8alpan Lad


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the time of the commission of the offense the death penalty cannot as yet beimposed. ?owever in his concurrin3 opinion hief )ustice ?ilario avide )r. declaredthat under such a factual milieu the char3e of violation of P "+'' should continueand if the accused is found 3uilty he should be meted the death penalty under !epublicAct +#%6.

(People -vs- Nictor =acoy ! :o. "#'#$ Au3ust "' #&&&,

8here the prosecution failed to adduce the 3un in evidence coupled with thefact that per ertification of the 9G0 / no available information re3ardin3 the licensefor the 3un and the inconsistency in the evidence of the prosecution the latter failed todischar3e its burden.

(People -vs- !icolito !u3ay et al. #%" S!A '%#,

=ere possession without criminal intent is sufficient on which to render a


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Section " of P "+'' as amended. A =ission >rder cannot ta5e the place of a license.A =ission >rder can only be issued to one licensed to possess a firearm.(Pedrito Pastrano -vs- ourt of Appeals et al. #+" S!A #+7,

If the accused borrowed a 3un from another who is licensed to possess firearmmay the former be liable for violation of P "+'' as amendedC Fes. Gven if the 3un islicensed to one and lends it to another the latter is liable for violation of P "+'' as

amended. A license to possess a firearm and a permit to carry a licensed firearmoutside of his residence is not transferable.

(Pedrito Pastrano -vs- ourt of Appeals et al. supra,

Gven if the firearm sub


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As lon3 as the accused is proved to have been in possession of the unlicensedfirearm even if the firearm is not adduced in evidence conviction under the law isproper.

(People -vs- 9elicisimo :arvasa supra,

Re>u;li" A" &25% oo' e99e" on July 6! $55F.

If the accused is char3ed of =urder and violation of P "+'' and durin3 thetrial !epublic Act +#%6 too5 effect the accused cannot be convicted of violation of P"+'' as amended. :either should the possession of an unlicensed firearm beconsidered as an a33ravatin3 circumstance as it will be less favorable to the accused. If the accused used a sumpa to 5ill the victim the prosecution must prove that he hadno license or permit to possess the sumpa .

(People -vs- ipriano de Nera.!. :o. "#"6'#-' )une % "%%%,

ompare /People -vs- 8ilfredo 9iloteo/ #%& S!A '#7 where the accused was

convicted of =urder and violation of P "+'' and durin3 the pendency of the appeal!epublic Act +#%6 too5 effect. >ur Supreme ourt affirmed the conviction of theAccused of two (#, crime of ?omicide and violation of P "+'' as amended andapplied the penalty for the crimes under the amendment.

In /People -vs- eriato 'olina) et al.) #%# S!A 76# our Supreme ourt Gn@anc declared that where the accused was convicted of said crimes by the 4rial ourtbut that durin3 the pendency of the appeal with the Supreme ourt !epublic Act +#%6too5 effect the accused should only be convicted of =urder with the use of anunlicensed firearm as mere a special a33ravatin3 circumstance.

=urder under !epublic Act +#%6 is used in its 3eneric term and henceincludes Parricide

(People versus >ctavio =endoBa! :o. "&%#7&-+& )anuary "+"%%%,

A 0nited States carbine =" caliber .-& is a hi3h-powered 3un because it iscapable of emittin3 two or three bullets in one squeeBe.

(People -vs- Gduardo utierreB! :o. "#+7+ September "%%%,

It is not necessary that the firearm be produced and offered in evidence for!epublic Act +#%6 to apply. It is not enou3h that there is evidence of the e1istence of the 3un which can be established either by testimony or presentation of the 3un itself.

Possession of an unlicensed firearm and used in 5illin3 is a special a33ravatin3circumstance.

(People -vs- 9elicisimo :arvasa! :o. "#+'"+ :ovember "+ "%%+,

4he ecision of the Supreme ourt in People versus Rex 2er,ante) et. al.) !:o. "#&'% 9ebruary #7 "%%+ that the use of an unlicensed firearm to commitmurder is only a 3eneric a33ravatin3 circumstance is no lon3er true.

Possession under the law may either be actual physical possession orconstructive possession. ?owever althou3h the crime under P "+'' as amended is

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malum prohibitum however there must be animus possidendi or intent to possess.Animus possidendi may be inferred from the fact that an unlicensed firearm is underthe apparent control and power of the accused. however animus possidendi may becontradicted if a person in possession of an unlicensed firearm does not assert a ri3htthereto.

If the possession of an unlicensed 3un is merely temporary incidental or

transient the same is not punishable under P "+''. ?owever the law does notprovide for a fi1ed period of time for one to be deemed in /possession/ of an unlicensedfirearm. (People -vs- Rolando erces) 766 9CRA "8,. Gach factual milieu must beconsidered.

IMPLICATION B- RA &25% ON PD $&66 ILLEGAL POSSESSION O) )IREARMS

P.. "+'' which codified the laws on ille3al possession of firearms wasamended on )une ' "%%7 by !epublic Act +#'6. Aside from lowerin3 the penalty forsaid crime !.A. +#%6 also provided that i9 #o?i"io==e==ion o9 9irear?! aggraae< ;y #o?i"i>ellan #i?=el9 a


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/=oreover =ai< a


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no separate conviction for the crime of ille3al possession of firearms under P.. :o."+'' in view of the amendments introduced by !epublic Act :o. +#%6. 4hereunderthe use of unlicensed firearm in murder or homicide is simply considered as ana33ravatin3 circumstance in the murder or homicide and no lon3er as a separateoffense. 9urthermore the penalty for ille3al possession of firearms shall be imposedprovided that no crime is committed. In other words where murder or homicide wascommitted the penalty for ille3al possession of firearms is no lon3er imposable since it

becomes merely a special a33ravatin3 circumstance. (PP -vs- A@G@9?: L:R+?:R*G:R) JR.) G.R. o. "76$"4) &ec. $) "$$$%

JURISPRUDENCE:

Peo?>e s. acasa>nC 239 #*A 2//

Inen o Po==e==! or Ani?u= Po==ido 6 .*. No. 9+92, ACst 3 1/,,

>wnership of the 3un is immaterial or irrelevant in violation of P "+'' asamended. >ne may be convicted of possession of an unlicensed firearm even if he is notthe owner thereof.

Peo?>e s $>emon *amos 222#*A 559

Gven if the 3un is Jpalti5K there is a need to secure license for the 3un and if found without any license therefor the offender is liable for violation of P "+''.

Peo?>e s. a>?an Ladaam>am et a>. .*. No. 13+14/751 #e?tembe 1/ 2000

If an unlicensed firearm is used to commit a crime other than homicide ormurder such a direct assault with attempted homicide the use of unlicensed firearm is

neither an a33ravatin3 circumstances nor a separate offenses. Since the law used theword ?omicide of =urder possession of an unlicensed firearm is not a33ravatin3 inAttempted ?omicide.

NoeD 0nder !epublic Act +#%6 the penalty depends upon the caliber of the 3un.Suppose there is no testimony as to the caliber of the 3unC

nesto enca s. Peo?>e 33 #*A 522

8here a security 3uard was 3iven by his employer a security a3ency a firearmand the accused assumed that the employer secured the license for the firearm but it

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turned out that the employer failed to 3et any license the security 3uard is notcriminally liable. 4he security 3uard has the ri3ht to assume that the security a3encysecured the license.

Peo?>e s. Pe>to #oyanC et a>. 110 P@>. 5+5 5,3

If a constabulary soldier entrusted his 3un to the accused for safe5eepin3 and

later the accused found in possession of the 3un the accused is 3uilty of possession of unlicensed firearm. 4o e1culpate himself the accused must prove absence of animuspossidendi.

Peo?>e oE t@e P@>??nes s. Bene ote6 y Natano et.a>. .*. Nos. 131+1/720 $eb. 1 2000

May E>lo=ie= ;e Gien a Per?i or Li"en=e4

In the case of an e1plosive a permit or license to possess it is usually 3ranted to

minin3 corporations military personnel and other le3itimate users.

Peo?>e oE t@e P@&

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