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Bar Exam Questions in Criminal Law

Articles 1-15 of the Revised Penal Code and Related Laws

2005

1) Distinguish malum in se from malum prohibitum. [Q# I(5)]

Suggested Answer:

Malum in se is a crime where the act done is inherently bad, evil and wrong in nature, such that it is generally condemned. The moral traits of the offender are taken into account in punishing the crime.

Malum prohibitum is a crime where the act done is not inherently bad, evil or wrong but prohibited by law for public good and welfare. Anyone who voluntarily commits the prohibited act incurs the crime.

2) Belle saw Gaston stealing the prized cock of a neighbor and reported him to the police. Thereafter, Gaston, while driving a car, saw Belle crossing the street. Incensed that Belle had reported him, Gaston decided to scare her by trying to make it appear that he was about to run her over. He revved the engine of his car and drove towards her but he applied the brakes. Since the road was slippery at that time, the vehicle skidded and hit Belle, causing her death. What is the liability of Gaston? [Q# II(1)]

Suggested Answer:

Gaston is criminally liable for homicide in doing the felonious act which caused Belle’s death, although the penalty therefore shall be mitigated by lack of intention to commit so grave a wrong as that committed (Art. 13[2], RPC). The act, having been deliberately done with malice, is felonious, and being the proximate cause of Belle’s death, brings about criminal liability although the wrong done was different from what was intended (Art. 4[1], RPC).

2004

1) RR represented to AA, BB, CC and DD that she could send them to London to work there as sales ladies and waitresses. She collected and received from them various amounts of money for recruitment and placement fees totaling P400,000. After their dates of departure were postponed several times, the four prospects got suspicious and went to POEA. There, they found out that RR was not authorized nor licensed to recruit workers for employment abroad. They sought refund to no avail. Is RR guilty of any grave offense? [Q# I(A)]

Suggested Answer:

Yes, RR is guilty of a grave offense, having engaged in illegal recruitment constituting the offense of economic sabotage, which is punishable with life imprisonment and a fine of P100,000.

Economic sabotage is an offense defined in Article 38(b) of the Labor Code, which is incurred when the illegal recruitment is carried out in large scale or by a syndicate. It is in large scale when there are 3 or more aggrieved parties, individually or as a group. And it is committed by a syndicate when 3 or more persons conspire or cooperate with one another in carrying out the illegal transaction, scheme or activity.

2) On his way home from office, ZZ rode in a jeepney. Subsequently, XX boarded the same jeepney. Upon reaching a secluded pot in QC, XX pulled out a grenade from his bag and

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announced a hold-up. He told ZZ to surrender his watch, wallet and cellphone. Fearing for his life, ZZ jumped out of the vehicle. But as he fell, his head hit the pavement, causing his instant death. Is XX liable for ZZ’s death? [Q# II(A)]

Suggested Answer:

Yes, XX is liable for ZZ’s death because his acts of pulling out a grenade and announcing a hold-up, coupled with a demand for the watch, wallet and cellphone of ZZ is felonious, and such felonious act was the proximate cause of ZZ’s jumping out of the jeepney, resulting in the latter’s death. Stated otherwise, the death of ZZ was the direct, natural, and logical consequence of XX’s felonious act which created an immediate sense of danger in the mind of ZZ who tried to avoid such danger by jumping out of the jeepney (People vs. Arpa, 27 SCRA 1037).

3) BB and CC, both armed with knives, attacked FT. The victim’s son, ST, upon seeing the attack, drew his gun but was prevented from shooting the attackers by AA, who grappled with him for possession of the gun. FT died from knife wounds. AA, BB, and CC were charged with murder.

In his defense, AA invoked the justifying circumstance of avoidance of greater evil or injury, contending that by preventing ST from shooting BB and CC, he merely avoided a greater evil. Will AA’s defense prosper? [Q# III(A)]

Suggested Answer:

No, AA’s defense will not prosper because obviously there was a conspiracy among BB, CC and AA, such that the principle that when there is a conspiracy, the act of one is the act of all, shall govern. The act of ST, the victim’s son, appears to be a legitimate defense of relatives; hence, justified as a defense of his father against the unlawful aggression by BB and CC. ST’s act to defend his father’s life, cannot be regarded as an evil inasmuch as it is, in the eyes of the law, a lawful act. What AA did was to stop a lawful defense, not greater evil, to allow BB and CC to achieve their criminal objective of stabbing FT.

4) OZ and YO were both courting their co-employee, SUE. Because of their bitter rivalry, OZ decided to get rid of YO, by poisoning him. OZ poured a substance into YO’s coffee, thinking it was arsenic. It turned out that the substance was white sugar substitute known as Equal. Nothing happened to YO after he drank the coffee. What criminal liability did OZ incur, if any? [Q# VII(B)]

Suggested Answer:

OZ incurred criminal liability for an impossible crime of murder. Criminal liability shall be incurred by any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means (Art. 4, par. 2, RPC).

In the problem given, the impossibility of accomplishing the crime of murder, a crime against persons, was due to the employment of ineffectual means which OZ thought was poison. The law imputes criminal liability to the offender although no crime resulted, only to suppress his criminal propensity because subjectively, he is a criminal though objectively, no crime was committed.

5) Distinguish between justifying and exempting circumstance. [Q# X]

Suggested Answer:

Justifying circumstance affects the act, not the actor; while exempting circumstance affects the actor, not the act. In justifying circumstance, no criminal and generally, no civil liability is incurred; while in exempting circumstance, civil liability is generally incurred although there is no criminal liability.

6) Distinguish between intent and motive in the commission of an offense. [Q# X]

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Suggested Answer:

Intent is the purpose for using a particular means to achieve the desired result; while motive is the moving power which impels a person to act for a definite result. Intent is an ingredient of dolo or malice and thus an element of deliberate felonies; while motive is not an element of a crime but only considered when the identity of the offender is in doubt.

2003

1) Distinguish, in their respective concepts and legal implications, between crimes mala in se and crimes mala prohibita. [Q# I]

Suggested Answer:

In concept:

Crimes mala in se are those where the acts or omissions penalized are inherently bad, evil, or wrong that they are almost universally condemned.

Crimes mala prohibit are those where the acts penalized are not inherently bad, evil, or wrong but prohibited by law for public good, public welfare or interest and whoever violates the prohibition are penalized.

In legal implications:

In crimes mala in se, good faith or lack of criminal intent/negligence is a defense, while in crimes mala prohibita, good faith or lack of criminal intent or malice is not a defense; it is enough that the prohibition was voluntarily violated.

Also, criminal liability is generally incurred in crimes mala in se even when the crime is only attempted or frustrated, while in crimes mala prohibita, criminal liability is generally incurred only when the crime is consummated.

Also, in crimes mala in se, mitigating and aggravating circumstances are appreciated in imposing the penalties, while in crimes mala prohibita, such circumstances are not appreciated unless the special law has adopted the scheme or scale of penalties under the RPC.

2) The accused lived with his family in a neighborhood that often was the scene of frequent robberies. At one time, past midnight, the accused went downstairs with a loaded gun, to investigate what he thought were footsteps of an uninvited guest. After seeing what appeared to him as an armed stranger looking around and out to rob the house, he fired his gun, seriously injuring the man. When the lights were turned on, the unfortunate victim turned out to be a brother-in-law on his way to the kitchen to get some light snacks. The accused was indicted for serious physical injuries. Should the accused, given the circumstances, be convicted or acquitted? [Q# II]

Suggested Answer:

The accused should be convicted because, even assuming the facts to be true in his belief, his act of shooting a burglar when there is no unlawful aggression on his person is not justified. Defense of property or property right does not justify the act of firing a gun at a burglar unless the life and limb of the accused is already in imminent and immediate danger. Although the accused acted out of a misapprehension of the facts, he is not absolved from criminal liability.

3) When would qualifying circumstances be deemed, if at all, elements of a crime? [Q# IV(b)]

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Suggested Answer:

A qualifying circumstance would be deemed an element of a crime when:

(a) It changes the nature of the crime, bringing about a more serious crime and a heavier penalty;

(b) It is essential to the crime involved, otherwise some other crime is committed; and

(c) Like an aggravating circumstance under the present Rules of Criminal Procedure, it is also specifically alleged in the Information and proven during the trial.

4) The conduct of wife A aroused the ire of her husband B. Incensed with anger almost beyond his control, B could not help but inflict physical injuries on A. Moments after B started hitting A with his fists, A suddenly complained of severe chest pains. B, realizing that A was indeed in serious trouble, immediately brought her to the hospital. Despite efforts to alleviate A’s pains, she died of heart attack. It turned out that she had been suffering from a lingering heart ailment. What crime, if any, could be held guilty of? [Q# V]

Suggested Answer:

B could be held liable for parricide because his act of hitting his wife with fist blows and therewith inflicting physical injuries on her, is felonious. A person committing a felonious act incurs criminal liability although the wrongful consequence is different from what he intended (Art. 4, par.1, RPC).

Although A died of heart attack, the said attack was generated by B’s felonious act of hitting her with his fists. Such felonious act was the immediate cause of the heart attack, having materially contributed to and hastened A’s death. Even though B may have acted without intent to kill his wife, lack of such intent is of no moment when the victim dies. However, B may be given the mitigating circumstance of having acted without intention to commit so grave a wrong as that committed (Art. 13, par. 3, RPC).

5) Distinguish fully between entrapment and instigation in Criminal Law. Exemplify each. [Q# VII]

Suggested Answer:

In entrapment:

(a) The criminal design originates from and is already in the mind of the lawbreaker even before entrapment;

(b) The law enforcers resort to ways and means for the purpose of capturing the lawbreaker in flagrante delicto; and

(c) This circumstance is no bar to prosecution and conviction of the lawbreaker.

Example of Entrapment:

A, an anti-narcotic agent of the Government acted as a poseur buyer of shabu and negotiated with B, a suspected drug pusher who is unaware that A is a police officer. A then issued marked money to B, who handed a sachet of shabu to B. thereupon, A signaled his anti-narcotic team to close-in and arrest B. This is a case of entrapment because the criminal mind is in B already when A transacted with him.

In instigation:

(a) The idea and design to bring about the commission of the crime originated and developed in the mind of the law enforcers;

(b) The law enforcers induce, lure or incite a person who is not minded to commit a crime and would not otherwise commit it, into committing the crime; and

(c) This circumstance absolves the accused from criminal liability (People vs. Marcos, 185 SCRA 154)

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Example of Instigation:

Because the members of an anti-narcotic team are already known to drug pushers, A, the team leader, approached and persuaded B to act as a buyer of shabu and transact with C, the suspected drug pusher. For the purpose, A gave B marked money to be used in buying shabu from C. After C handed the sachet of shabu to B and the latter handed the marked money to C, the team closed-in and placed B and C under arrest. Under the facts, B is not criminally liable for his participation in the transaction because he was acting only under instigation by the law enforcers.

2002

1) A was invited to a drinking spree by friends. After having had a drink too many, A and B had a heated argument during which A stabbed B. As a result, B suffered serious physical injuries. May the intoxication of A be considered aggravating or mitigating? (Q# II)

Suggested Answer:

The intoxication of A may be prima facie considered mitigating since it was merely incidental to the commission of the crime. It may not be considered aggravating as there is no clear indication from the facts of the case that it was habitual or intentional on the part of A. Aggravating circumstances are not to be presumed; they should be proved beyond reasonable doubt.

2) When A arrived home, he found B raping his daughter. Upon seeing A, B ran away. A took his gun and shot B, killing him. Charged with homicide, A claimed he acted in defense of his daughter’s honor. Is A correct? If not, can A claim the benefit of any mitigating circumstance or circumstances? [Q# XV(A)]

Suggested Answer:

No, A cannot validly invoke defense of his daughter’s honor in having killed B since the rape was already consummated; moreover, B already ran away, hence, there was no aggression to defend against and no defense to speak of.

A may, however, invoke the benefit of the mitigating circumstance of having acted in immediate vindication of a grave offense to a descendant, his daughter, under par. 5, Article 12 of the RPC.

3) A chanced upon 3 men who were attacking B with fist blows. C, one of the men, was about to stab B with a knife. Not knowing that B was actually the aggressor because he had earlier challenged the 3 men to a fight, A shot C as the latter was about to stab B. May A invoke the defense of a stranger as a justifying circumstance in his favor? [Q# XV(B)]

Suggested Answer:

Yes. A may invoke the justifying circumstance of defense of stranger since he was not involved in the fight and he shot C when the latter was about to stab B. There being no indication that A was induced by revenge, resentment, or any other evil motive in shooting C, his act is justified under par. 3, Article 11 of the RPC.

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2001

1) Luis Cruz was deeply hurt when his offer of love was rejected by his girlfriend, Marivella, one afternoon when he visited her. When he left her house, he walked as if he was sleepwalking, so much so that a teenage snatcher was able to grab his cellphone and flee without being chased by Luis. At the next LRT station, he boarded one of the coaches bound for Baclaran. While seated, he happened to read a newspaper left on the seat and noticed that the headlines were about the sinking of the Super Ferry on its way to Cebu. He went over the list of missing passengers who were presumed dead, and came across the name of his grandfather who had raised him from childhood after he was orphaned. He was shocked, and his mind went blank for a few minutes, after which, he ran amuck and, using his balisong, started stabbing at the passengers who then scampered away, with 3 of them jumping out of the train and landing on the road below. All the 3 passengers died later of their injuries at the hospital. Is Luis liable for the death of the 3 passengers who jumped out of the moving train? [Q# I]

Suggested Answer:

Yes, Luis is liable for their deaths because he was committing a felony when he started stabbing at the passengers and such wrongful act was the proximate cause of said passengers’ jumping out of the train; hence, their deaths.

Under Article 4 of the RPC, any person committing a felony shall incur criminal liability although the wrongful act done be different from that which he intended.

In this case, the death of the 3 passengers was the direct, natural and logical consequence of Luis’ felonious act which created an immediate sense of danger in the minds of said passengers who tried to avoid or escape from it by jumping out of the train (People vs. Arpa, 27 SCRA 1037; US vs. Valdez, 41 Phil. 497).

2) Maryjane had 2 suitors – Felipe and Cesar. She did not openly show her preference, but on 2 occasions, she accepted Cesar’s invitation to concerts by Regine and Pops. Felipe was a working student and could only ask Mary to see a movie, which was declined. Felipe felt insulted and made plans to get even with Cesar by scaring him off somehow. One day, he entered Cesar’s room in their boarding house and placed a rubber snake, which appeared to be real, in Cesar’s backpack. Because Cesar had a weak heart, he suffered a heart attack upon opening his backpack and seeing the snake. Cesar died without regaining consciousness. The police investigation resulted in pinpointing Felipe as the culprit and he was charged with Homicide for Cesar’s death. In his defense, Felipe claimed that he did not know about Cesar’s weak heart and that he only intended to play a practical joke on Cesar. Is Felipe liable for the death of Cesar, or will his defense prosper? [Q# II]

Suggested Answer:

Yes, Felipe is liable for the death of Cesar but he shall be given the benefit of the mitigating circumstance that he did not intend to commit so grave a wrong as that which was committed (Art. 13, par. 3, RPC).

When Felipe intruded into Cesar’s room without the latter’s consent and took liberty with the latter’s backpack where he placed the rubber snake, Felipe was already committing a felony. And any act done by him while committing a felony is no less wrongful, considering that they were part of “plans to get even with Cesar.”

Felipe’s claim that he intended only “to play a practical joke on Cesar” does not persuade, considering that they are not friends but in fact rivals in courting Maryjane. This case is parallel to the case of People vs. Pugay, et al.

3) Juan de Castro already had 3 previous convictions by final judgment for theft when he was found guilty of Robbery with Homicide. In the last case, the trial judge considered against the accused

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both recidivism and habitual delinquency. The accused appealed and contended that in his last conviction, the trial court cannot consider against him a finding of recidivism and, again, of habitual delinquency. Is the appeal meritorious? [Q# III]

Suggested Answer:

No, the appeal is not meritorious. Recidivism and habitual delinquency are correctly considered in this case because the basis of recidivism is different from that of habitual delinquency.

Juan is a recidivist because he had been previously convicted by final judgment for theft and again found guilty for Robbery with Homicide, which are both crimes against property, embraced under the same Title (Title Ten, Book 2) of the RPC. The implication is that he is specializing in the commission of crimes against property; hence, aggravating in the conviction for Robbery with Homicide.

Habitual delinquency, which brings about an additional penalty when an offender is convicted a 3

rd time or more for specified crimes, is correctly considered because Juan had already 3

previous convictions by final judgment for theft and again convicted for Robbery with Homicide. And the crimes specified as basis for habitual delinquency includes, inter alia, theft and robbery.

4) Briefly state what essentially distinguishes crimes mala prohibita from a crime mala in se. [Q# VII(b)]

Suggested Answer:

(See previous answer similar to this question.)

2000

1) After drinking one case of beer and taking 2 plates of “pulutan”, Binoy, a Filipino seaman, stabbed to death Sio My, a Singaporean seaman, aboard M/V Princess of the Pacific, and overseas vessel which was sailing in the South China Sea. The vessel, although Panamanian-registered, is owned by Lucio Sy, a rich Filipino businessman. When M/V Princess of the Pacific reached a Philippine port at Cebu City, the Captain of the vessel turned over the assailant Binoy to the Philippine authorities. An Information for homicide was filed against Binoy in the RTC of Cebu City. He moved to quash the Information for lack of jurisdiction. If you were the Judge, will you grant the motion? [Q# I]

Suggested Answer:

Yes, the Motion to Quash the Information should be granted. The Philippine court has no jurisdiction over the crime committed since it was committed on the high seas or outside of Philippine territory and on board a vessel not registered or licensed in the Philippines (US vs. Fowler, 1 Phil. 614).

It is the registration of the vessel in accordance with the laws of the Philippines, not the citizenship of her owner, which makes it a Philippine ship. The vessel being registered in Panama, the laws of Panama govern while it is in the high seas.

2) Osang, a married woman in her early 20s, was sleeping on a banig on the floor of their nipa hut beside the seashore when she was awakened by the act of a man mounting her. Thinking that it was her husband, Gardo, who had returned from fishing in the sea, Osang continued her sleep but allowed the man, who was actually their neighbor, Julio, to have sexual intercourse with her. After Julio satisfied himself, he said “Salamat Osang” as he turned to leave. Only then did Osang realize that the man was not her husband. Enraged, Osang grabbed a balisong from the wall and

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stabbed Julio to death. When tried for homicide, Osang claimed defense of honor. Should the claim be sustained? [Q# II]

Suggested Answer:

No, Osang’s claim of defense of honor should not be sustained because the aggression on her honor had ceased when she stabbed the aggressor. In defense of rights under paragraph 1, Article 11 of the RPC, it is required, inter alia, that there be (a) Unlawful aggression; and (b) Reasonable necessity of the means employed to prevent or repel it. The unlawful aggression must be continuing when the aggressor was injured or disabled by the person making a defense.

But if the aggression that was begun by the injured or disabled party already ceased to exist when the accused attacked him, as in the case at bar, the attack made is a retaliation, and not a defense. Paragraph 1, Article 11 of the RPC does not govern.

Hence, Osang’s act of stabbing Julio to death after the sexual intercourse was finished, is not defense of honor but an immediate vindication of a grave offense committed against her, which is only mitigating.

3) While they were standing in line awaiting their vaccination at the school clinic, Pomping repeatedly pulled the ponytail of Katreena, his 11 years, 2 months and 13 days old classmate in Grade 5 at the Sampaloc Elementary School. Irritated, Katreena turned around an swung at Pomping with a ballpen. The tip of the pen hit the right eye of Pomping which bled profusely. Realizing what she had caused, Katreena immediately helped Pomping. When investigated, she freely admitted to the school principal that she was responsible for the injury to Pomping’s eye. After the incident, she executed a statement admitting her culpability. Due to the injury, Pomping lost his right eye.

(a) Is Katreena criminally liable?

(b) Discuss the attendant circumstances and effects thereof. [Q# IV]

Suggested Answer:

(a) No, Katreena is not criminally liable although she is civilly liable. Being a minor less than 15 years old although over nine (9) years of age, se is generally exempt from criminal liability. The exception is where the prosecution proved that the act was committed with discernment. The burden is upon the prosecution to prove that the accused acted with discernment.

The presumption is that such minor acted without discernment, and this is strengthened by the fact that Katreena only reacted with a ballpen which she must be using in class at the time and only to stop Pomping’s vexatious act or repeatedly pulling her ponytail. In other words, the injury was accidental.

(b) The attendant circumstances which may be considered are:

[1] Minority of the accused as an exempting circumstance under Article 12, paragraph 3, RPC, where she shall be exempt from criminal liability, unless it was proved that she acted with discernment. She is however civilly liable;

[2] If found criminally liable, the minority of the accused as a privileged mitigating circumstance. A discretionary penalty lower by at least 2 degrees than that prescribed for the crime committed shall be imposed in accordance with Article 68, par. 1 of the RPC. The sentence, however, should automatically be suspended in accordance with Section 5(a) of RA 8369, otherwise known as the Family Courts Act of 1997;

[3] Also, if found criminally liable, the ordinary mitigating circumstance of not intending to commit so grave a wrong as that committed, under Article 13, paragraph 3 of the RPC; and

[4] The ordinary mitigating circumstance of sufficient provocation on the part of the offended party immediately preceded the act.

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4) Lucresia, a store owner, was robbed of her bracelet in hr house. The following day, at about 5 p.m., a neighbor, 22-year old Jun-jun, who had an unsavory reputation, came to her store to buy bottles of beer. Lucresia noticed her bracelet wound around the right arm of Jun-jun. As soon as the latter left, Lucresia went to a nearby police station and sought the help of a policeman on duty, Pat. Willie Reyes. He went with Lucresia to the house of Jun-jun to confront the latter. Pat. Reyes introduced himself as a policeman and tried to get hold of Jun-jun who resisted and ran away. Pat. Reyes chased him and fired 2 warning shots in the air. Jun-jun continued to run and when he was about 7 meters away, Pat. Reyes shot him in the right leg. Jun-jun was hit and he fell down but he crawled towards a fence, intending to pass through an opening underneath. When Pat. Reyes was about 5 meters away, he fired another shot at Jun-jun hitting him at the right lower hip. Pat. Reyes brought Jun-jun to the hospital, but because of profuse bleeding, he eventually died. During the trial, Pat. Reyes raised the defense, by way of exoneration, that he acted in the fulfillment of a duty. Is the defense tenable? [Q# VI(a)]

Suggested Answer:

No, the defense of Pat. Reyes is not tenable. The defense of having acted in the fulfillment of a duty requires as a condition, inter alia, that the injury or offense committed be the unavoidable or necessary consequence of the due performance of the duty (People vs. Oanis, 74 Phil. 257). It is not enough that the accused acted in fulfillment of a duty.

After Jun-jun was shot in the right leg and was already crawling, there was no need for Pat. Reyes to shoot him further. Clearly, Pat. Reyes acted beyond the call of duty which brought about the cause of death of the victim.

5) Rico, a member of the Alpha Rho fraternity, was killed by Pocholo, a member of the rival group, Sigma Phi Omega. Pocholo was prosecuted for homicide before the RTC. During the trial, the prosecution was able to prove that the killing was committed by means of poison in consideration of a promise or reward and with cruelty. If you were the Judge, with what crime will you convict Pocholo? Explain. [Q# VI(b)]

Suggested Answer:

Pocholo should be convicted of the crime of homicide only because the aggravating circumstances which should qualify the crime to murder were not alleged in the information. The qualifying circumstance must be alleged in the Information and proven beyond reasonable doubt during the trial to be appreciated as such.

6) What is an impossible crime? Is an impossible crime really a crime? [Q# XVII(a & b)]

Suggested Answer:

An impossible crime is an act which would be an offense against person or property, were it nor for the inherent impossibility of its accomplishment, or on account of the employment inadequate or ineffectual means (Art. 4, par. 2, RPC).

No, an impossible crime is not really a crime. It is only so-called because the act gives rise to criminal liability. But actually, no felony is committed. The accused is to be punished for his criminal tendency or propensity although no crime was committed.

7) A, B, C and D, all armed with armalites, proceeded to the house of X. Y, a neighbor of X, who happened to be passing by, pointed to the 4 culprits the room that X occupied. The 4 culprits peppered the room with bullets. Unsatisfied, A even threw a hand grenade that totally destroyed X’s room. However, unknown to the 4 culprits, X was not inside the room and nobody was hit or injured during the incident. Are A, B, C, and D liable for any crime? [Q# XVII]

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Suggested Answer:

Yes. A, B, C and D are liable for destructive arson because of the destruction of the room of X with the use of an explosive, the hand grenade. Liability for an impossible crime is to be imposed only if the act committed would not constitute any other crime under the RPC. Although the facts involved are parallel to the case of Intod vs. CA (215 SCRA 52), where it was ruled that the liability of the offender was for an impossible crime, no hand grenade was used in said case, which constitutes a more serious crime although different from what was intended.

8) Carla, 4 years old, was kidnapped by Enrique, the tricycle driver paid by her parents to bring and fetch her to and from school. Enrique wrote a ransom note demanding P500,000 from Carla’s parents in exchange for Carla’s freedom. Enrique sent the ransom note by mail. However, before the ransom note was received by Carla’s parents, Enrique’s hideout was discovered by the police. Carla was rescued while Enrique was arrested and incarcerated. Considering that the ransom note was not received by Carla’s parents, the investigating prosecutor merely filed a case of “impossible crime to commit kidnapping” against Enrique. Is the prosecutor correct? [Q# XVII]

Suggested Answer:

No, the prosecutor is not correct in filing a case for “impossible crime to commit kidnapping” against Enrique. Impossible crimes are limited only to acts which when performed would be a crime against persons or property. As kidnapping is a crime against personal security and not against persons or property, Enrique could not have committed an “impossible crime” to commit kidnapping. There is thus no impossible crime of kidnapping.

1999

1) When is surrender by an accused considered voluntary, and constitutive of the mitigating circumstance of voluntary surrender? [Q# I]

Suggested Answer:

A surrender by an offender is considered voluntary when it is spontaneous, indicative of an intent to submit unconditionally to the authorities.

To be mitigating, the surrender must be:

(a) Spontaneous, indicative of acknowledgment of guilt and not for convenience nor conditional;

(b) Made before the government incurs expenses, time and effort in tracking down the offender’s whereabouts; &

(c) Made to a person in authority or the latter’s agents.

2) During the robbery in a dwelling house, one of the culprits happened to fire his gun upward in the ceiling without meaning to kill anyone. The owner of the house who was hiding thereat was hit and killed as a result. The defense theorized that the killing was a mere accident and was not perpetrated in connection with, or for purposes of, the robbery. Will you sustain the defense? [Q#II]

Suggested Answer:

No, I will not sustain the defense. The act being felonious and the proximate cause of the victim’s death, the offender is liable therefore although it may not be intended or different from what was intended.

3) Distinguish motive from intent. [Q#IVa]

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Suggested Answer:

Motive is the moving power which impels a person to do an act for a definite result; while intent is the purpose for using a particular means to bring about a desired result. Motive is not an element of a crime but intent is an element of intentional crimes. Motive, if attending a crime, always precede the intent.

4) When is motive relevant to prove a case? When is it not necessary to be established? [Q# IVb]

Suggested Answer:

Motive is relevant to prove a case when there is doubt as to the identity of the offender or when the act committed gives rise to variant crimes and there is the need to determine the proper crime to be imputed to the offender.

5) What do you understand by aberration ictus, error in personae, and praeter intentionem? Do they alter the criminal liability of an accused? [Q# VI]

Suggested Answer:

Aberratio ictus or mistake in the blow occurs when the offender delivered the blow at his intended victim but missed, and instead such blow landed on an unintended victim. The situation generally brings about complex crimes where from a single act, 2 or more grave or less grave felonies resulted, namely the attempt against the intended victim and the consequence on the unintended victim. As complex crimes, the penalty for the more serious crime shall be the one imposed and in the maximum period. It is only when the resulting felonies are only light that complex crimes do not result and the penalties are to be imposed distinctly for each resulting crime.

Error in personae or mistake in identity occurs when the offender actually hit the person to whom the blow was directed but turned out to be different from and not the victim intended. The criminal liability of the offender is not affected, unless the mistake in identity resulted to a crime different from what the offender intended to commit, in which case the lesser penalty between the crime intended and the crime committed shall be imposed by in the maximum period (Art. 49, RPC).

Praeter intentionem or where the consequence wend beyond that intended or expected. This is a mitigating circumstance (Art. 13, par. 3, RPC) when there is a notorious disparity between the act or means employed by the offender and the resulting felony, the resulting felony could not be reasonable anticipated or foreseen by the offender from the act or means employed by him.

6) Name the 4 kinds of aggravating circumstances and state their effect on the penalty of crimes and nature thereof. [Q# IX(a)]

Suggested Answer:

The 4 kinds of aggravating circumstances are:

(a) Generic aggravating or those that can generally apply to all crimes, and an be offset by mitigating circumstances, but it not offset, would affect only the maximum of the penalty prescribed by law;

(b) Specific aggravating or those that apply only to particular crimes and cannot be offset by mitigating circumstances;

(c) Qualifying circumstances or those that change the nature of the crime to a graver one, or brings about a penalty next higher in degree, and cannot be offset by mitigating circumstances;

(d) Inherent aggravating or those that essentially accompany the commission of the crime and does not affect the penalty whatsoever.

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7) Distinguish generic aggravating circumstance from qualifying circumstance. [Q# IX(b)]

Suggested Answer:

The following are distinctions between a generic aggravating circumstances and a qualifying circumstance:

Generic Aggravating Circumstance:

(a) Affects only the imposition of the penalty prescribed, but not the nature of the crime committed

(b) Can be offset by an ordinary mitigating circumstance.

Qualifying Circumstance:

(a) Affects the nature of the crime or brings about a penalty higher in degree than that ordinarily prescribed

(b) Cannot be offset by mitigating circumstances.

8) In order that a plea of guilty may be mitigating, what requisites must be complied with? [Q# X(a)]

Suggested Answer:

For plea of guilty to be mitigating, the requisites are:

(a) That the accused spontaneously pleaded guilty to the crime charged;

(b) That such plea was made before the court competent to try the case and render judgment; and

(c) That such plea was made prior to the presentation of evidence for the prosecution.

9) An accused charged with the crime of homicide pleaded “not guilty” during the preliminary investigation before the MTC. Upon elevation of the case to the RTC, the court of competent jurisdiction, he pleaded guilty freely and voluntarily upon arraignment. Can his plea of guilty before the RTC be considered spontaneous and thus entitle him to the mitigating circumstance of spontaneous plea of guilty under Art. 13(7) of the RPC? [Q# X(b)]

Suggested Answer:

Yes, his plea of guilty before the RTC can be considered spontaneous, for which he is entitled to the mitigating circumstance of plea of guilty. His plea of not guilty before the MTC is immaterial as it was made during preliminary investigation only and before a court not competent to render judgment.

1998

1) Distinguish between justifying and exempting circumstances. [Q# IV(2)]

Suggested Answer:

In justifying circumstances:

(a) The circumstance affects the act, not the actor

(b) The act is done within legal bounds, hence considered not as a crime;

(c) Since the act is not a crime, there is no criminal;

(d) There being no crime nor criminal, there is no criminal or civil liability.

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Whereas, in exempting circumstances:

(a) The circumstance affects the actor, not the act;

(b) The act is felonious and hence a crime, but the actor acted without Voluntariness;

(c) Although there is a crime, there is no criminal because the actor is regarded only as an instrument of the crime;

(d) There being a wrong done but no criminal, there is civil liability but no criminal liability.

2) John, an 8-year old boy, is fond of watching the program “Zeo Rangers.” One evening while he was engrossed watching his favorite television show, Petra, a maid, changed the

Channel to enable her to watch “Home Along Da Riles.” This enraged John who got his father’s revolver, and without warning, shot Petra at the back of her head, causing her instantaneous death. Is John criminally liable? [Q# IV(2)]

Suggested Answer:

No, John is not criminally liable for killing Petra because he is only 8 years old when he committed the killing. A minor below 9 years old is absolutely exempt from criminal liability although not from civil liability (Art. 12, par. 2, RPC).

3) What is the doctrine of implied conspiracy? [Q# VIII(1)]

Suggested Answer:

The doctrine of implied conspiracy holds 2 or more persons participating in the commission of a crime collectively responsible and liable as co-conspirators although absent any agreement to that effect, when they act in concert, demonstrating unity of criminal intent and a common purpose or objective. The existence of a conspiracy shall be inferred or deduced from their criminal participation in pursuing the crime and thus the act of one shall be deemed the act of all.

4) Distinguish between recidivism and quasi-recidivism. [Q# VIII(2)]

Suggested Answer:

In recidivism:

(a) The convictions of the offender are for crimes embraced in the same title of the RPC; and

(b) This circumstance is generic aggravating and therefore can be offset by an ordinary mitigating circumstance.

Whereas in quasi-recidivism:

(a) The convictions are not for crimes embraced in the same Title of the RPC, provided that it is a felony that was committed by the offender before serving sentence by final judgment for another crime or while serving sentence for another crime; and

(b) This circumstance is a special aggravating circumstance which cannot be offset by any mitigating circumstance.

5) Buddy always resented his classmate, Jun. One day, Buddy planned to kill Jun by mixing poison in his lunch. Not knowing where he can get poison, he approached another classmate, Jerry, to whom he disclosed his evil plan. Because he himself harbored resentment towards Jun, Jerry gave Buddy a poison, which Buddy placed on Jun’s food. However, Jun did not dies because, unknown to both Buddy and Jerry, the poison was actually powdered milk. What crime or crimes, if any, did Jerry and Buddy commit? [Q# XIV(1)]

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Suggested Answer:

Jerry and Buddy are liable for the so-called “impossible crime” because, with intent to kill, they tried to poison Jun and thus perpetrate murder, a crime against persons. Jun was not poisoned only because the would-be killers were unaware that what they mixed with the food of Jun was powdered milk, not poison. In short, the act done with criminal intent by Jerry and Buddy, would have constituted a crime against persons were it not for the inherent inefficacy of the means employed. Criminal liability is incurred by them although no crime resulted, because their act of trying to poison Jun is criminal.

6) One night, Lina, a young married woman, was sound asleep in her bedroom when she felt a man on top of her. Thinking it was her husband Tito, who came home a day early from his business trip, Lina let him have sex with her. After the act, the man said, “I hope you enjoyed it as much as I did.” Not recognizing the voice, it dawned upon Lina that the man was not Tito, her husband. Furious, Lina took out Tito’s gun and shot the man. Charged with homicide, Lina denies culpability on the ground of defense of honor. Is her claim tenable? [Q# XV]

Suggested Answer:

No, Lina’s claim that she acted in defense of honor, is not tenable because the unlawful aggression on her honor had already ceased. Defense of honor, as included in self-defense, must have been done to prevent or repel an unlawful aggression. There is no defense to speak of where the unlawful aggression no longer exists.

7) In the jewelry section of a big department store, Julia snatched a couple of bracelets and put these in her purse. At the store’s exit, however, she was arrested by the guard after being radioed by the store personnel who caught the act in the store’s moving camera. Is the crime consummated, frustrated, or attempted? [Q# XVII]

Suggested Answer:

The crime is consummated theft because the taking of the bracelets was complete after Julia succeeded in putting them in her purse. Julia acquired complete control of the bracelets after putting them in her purse; hence, the taking with intent to gain is complete and thus, the crime is consummated.

1997

1) May an act be malum in se and be, at the same time, malum prohibitum? [Q# 1]

Suggested Answer:

Yes, an act may be malum in se and malum prohibitum at the same time. In People vs. Sunico (CA 50 OG 5880), it was held that the omission or failure of election inspectors and poll clerks to include a voter’s name in the registry list of voters is wrong per se because it disenfranchises a voter of his right to vote. In this regard, it is considered as malum in se. Since it is punished under a special law (Sec. 101 and 103, OEC), is considered malum prohibitum.

2) While the crew of a steamer prepared to raise anchor at the Pasig River, A, evidently impatient with the progress of work, began to use abusive language against the men. B, one of the members of the crew, remonstrated saying that they could work best if they were not insulted. A took B’s attitude as a display of insubordination and, rising in a rage, moved towards B, wielding a big knife and threatening to stab B. At the instant when A was only a few feet from B, the latter, apparently believing himself to be in great and immediate peril,

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threw himself into the water, disappeared beneath the surface, and drowned. May A be held criminally liable for the death of B? [Q# 2]

Suggested Answer:

Yes, A can be held criminally liable for the death of B. Article 4 of the RPC provides in part that criminal liability shall be incurred by any person committing a felony although the wrongful act done be different from that which he intended. In US vs. Valdez (41 Phil. 497), where the victim was threatened by the accused with a knife, jumped into the river but because of the strong current or because he did not know how to swim, he drowned, the Supreme Court affirmed the conviction for homicide of the accused because, if a person against whom a criminal assault is directed believes himself to be in danger of death or great bodily harm, and in order to escape, jumps into the water, impelled by the instinct of self-preservation, the assailant is responsible for the homicide in case death results by drowning.

3) The accused and the victim occupied adjacent apartments, each being a separate dwelling unit of one big house. The accused suspected his wife of having an illicit relation with the victim. One afternoon, he saw the victim and his wife together on board a vehicle. In the evening of that day, the accused went to bed early and tried to sleep, but being so annoyed over the suspected relation between his wife and the victim, he could not sleep. Later in the night, he resolved to kill the victim. He rose from bed and took hold of a knife. He entered the apartment of the victim through an unlocked window. Inside, he saw the victim soundly asleep. He, thereupon, stabbed the victim, inflicting several wounds, which caused his death within a few hours.

Would you say that the killing was attended by the qualifying or aggravating circumstances of evident premeditation, treachery, nighttime and unlawful entry? [Q# 3]

Suggested Answer:

Evident premeditation cannot be considered against accused because he resolved to kill the victim “later in the night” and there was no sufficient lapse of time between the determination and execution, to allow his conscience to overcome the resolution of his will.

Treachery may be present because the accused stabbed the victim while the latter was sound asleep. Accordingly, he employed means and methods which directly and specially insured the execution of the act without risk to himself arising from the defense which the victim might have made (People vs. Dequiña, 60 Phil. 279).

Nighttime cannot be appreciated because there is no showing that the accused deliberately sought or availed of nighttime to insure the success of his act. The intention to commit the crime was conceived shortly before its commission (People vs. Pardo, 79 Phil. 568). Moreover, nighttime is absorbed in treachery.

Unlawful entry may be appreciated as an aggravating circumstance, inasmuch as the accused entered the room of the victim through the window, which is not the proper place for entrance into the house (Art. 14, par. 18, RPC; People vs. Baruga, 61 Phil. 318).

4) After killing the victim, the accused absconded. He succeeded in eluding the police until he surfaced and surrendered to the authorities about 2 years later. Charged with murder, he pleaded not guilty but, after the prosecution had presented 2 witnesses implicating him to the crime, he changed his plea to that of guilty.

Should the mitigating circumstances of voluntary surrender and plea of guilty be considered in favor of the accused? [Q# 5]

Suggested Answer:

Voluntary surrender should be considered as a mitigating circumstance. After 2 years, the police were still unaware of the whereabouts of the accused and the latter could have continued to elude arrest. Accordingly, the surrender of the accused should be

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considered mitigating because it was done spontaneously, indicative of the remorse or repentance on the part of said accused and therefore, by his surrender, the accused saved the Government expenses, efforts and time.

Plea of guilty can no longer be appreciated as a mitigating circumstance because the prosecution had already started with the presentation of its evidence (Art. 13, par. 7, RPC).

1996

1) What are the different schools of thought or theories in Criminal Law and describe each briefly. [Q# 1(1)]

Suggested Answer:

There are 2 schools of thought in Criminal Law, and these are (a) the Classical theory, which simply means that the basis of criminal liabilities is human free will, and the purpose of the penalty is retribution, which must be proportional to the gravity of the offense; and (b) the Positivist theory, which considers man as a social being and his acts are attributable not just to his will but to other forces of society. As such, punishment is not the solution, as he is not entirely to be blamed; law and jurisprudence should not be the yardstick in the imposition of sanction, instead the underlying reasons would be inquired into.

2) To what theory does our RPC belong? [Q# 1(2)]

Suggested Answer:

We follow the classical school of though although some provisions of eminently positivist in tendencies, like punishment of impossible crime, juvenile circumstances, are incorporated in our Code.

3) Distinguish intent from motive in Criminal Law? [Q# 1(3)]

Suggested Answer:

Motive is the moving power which impels one to action for a definite result; whereas intent is the purpose to use a particular means to effect such results. Motive is not an essential element of a felony and need not be proved for the purpose of conviction, while intent is an essential element of felonies by dolo.

4) May crime be committed without criminal intent/ [Q# 1(4)]

Suggested Answer:

Yes, a crime may be committed without criminal intent, if such is a culpable felony, wherein intent is substituted by negligence or imprudence, and also in malum prohibitum, or if an act is punishable by special law.

5) At the height of an altercation, Pedrito shot Paulo but missed, hitting Tiburcio instead, resulting in the death of the latter. Pedrito, invoking the doctrine of aberration ictus, claims exemption from criminal liability. If you were the judge, how would you decide the case?

Suggested Answer:

If I were the judge, I will convict Pedrito and find him guilty of the complex crime of Homicide with Attempted Homicide. The single act of firing at Paulo resulted in the commission of 2 felonies, one grave (homicide) and the other less grave (attempted homicide) thus falling squarely

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under Art. 48, RPC; hence, the penalty would be for the more serious crime (homicide) in its maximum period.

Aberratio ictus (mistake in the blow) could not be used as a defense as it is not an exempting circumstance. Pedrito is liable under the principle of Art. 4 of the RPC, which makes a person criminally liable for all the natural and logical consequences of his felonious act.

6) Jose, Domingo. Manolo and Fernando, armed with bolos, at about one o’clock in the morning, robbed a house at a desolate place where Danilo, his wife, and 3 daughters were living. While the 4 were in the process of ransacking Danilo’s house, Fernando, noticing that one of Danilo’s daughters was trying to get away, ran after her and finally caught up with her in a thicket somewhat distant from the house. Fernando, before bringing back the daughter to the house, raped her first. Thereafter, the 4 carted away the belongings of Danilo and his family.

Under the facts of the case, what aggravating circumstance may be appreciated against the four? [Q# 2(2c)]

Suggested Answer:

The aggravating circumstances which may be considered in the premises are:

(a) Band – because all the 4 offenders were armed;

(b) Nocturnity – because evidently, the offenders took advantage of nighttime;

(c) Dwelling; and

(d) Uninhabited place – because the house where the crimes were committed was “at a desolate place” and obviously the offenders took advantage of this circumstance in committing the crime.

7) Hilario, upon seeing his son engaging in a scuffle with Rene, stabbed and killed the latter. After the stabbing, he brought his son home. The Chief of Police of the town, accompanied by several policemen, went to Hilario’s house. Hilario, upon seeing the approaching policemen, cam down from his house to meet them and voluntarily went with them to the Police Station to be investigated in connection with the killing. When eventually charged with an convicted of homicide, Hilario, on appeal, faulted the trial court for not appreciating in his favor the mitigating circumstance of voluntary surrender. Is he entitled to such a mitigating circumstance? [Q# 3 (2)]

Suggested Answer:

Yes, Hilario is entitled to the mitigating circumstance of voluntary surrender. The crux of the issue is whether the fact that Hilario went home after the incident, but came down and met the police officers and went with them is considered “voluntary surrender.” The voluntariness of surrender is tested if the same is spontaneous, showing the intent of the accused to submit himself unconditionally to the authorities. This must be either (a) because he acknowledges his guilt, or (b) because he wished to save them the trouble and expenses necessarily included in his search and capture. Thus, the act of the accused in hiding after commission of the crime, but voluntarily went with the policemen who had gone to his hiding place to investigate, was held to be mitigating circumstance (People vs. Dayrit)

8) Pat. Buensuceso, posing as a buyer, approached Ronnie, a suspected drug pusher, and offered to buy P300 worth of shabu. Ronnie then left, came back 5 minutes later and handed Pat. Buensuceso an aluminum foil containing the shabu. However, before Pat. Buensuceso was able to deliver the marked money to Ronnie, the latter spotted a policeman at a distance, whom Ronnie knew to be connected with the Narcotics Command of the Police. Upon seeing the latter, Ronnie ran away but was arrested 30 minutes later by other policemen who pursued him.

Under the circumstances, would you consider the crime of sale of a prohibited drug already consummated? [Q# 3(2)]

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Suggested Answer:

Yes, the sale of prohibited drug is already consummated although the marked money was not yet delivered. When Ronnie handed the aluminum foil containing the shabu to Pat. Buensuceso pursuant to their agreed sale, the crime was consummated. Payment of the consideration is not an element or requisite of the crime. If ever, the marked money is only evidentiary to strengthen the case of the prosecution.

9) Alexander, an escaped convict, ran amuck on board a Superlines Bus found for Manila from Bicol and killed 10 persons. Terrified by the incident, Carol and Benjamin, who are passengers of the bus, jumped out of the window and, while lying unconscious after hitting the pavement of the road, were ran over and crushed to death by a fast moving Desert Fox bust tailing the Superlines bus. Can Alexander be held liable for the death of Carol and Benjamin although he was completely unaware that the 2 jumped out of the bus? [Q# 4(1)]

Suggested Answer:

Yes, Alexander can be held liable for the death of Carol and Benjamin because his felonious act of running amuck was the proximate cause of the victim’s death. The rule is that when a person, by a felonious act, generates in the mid of another a sense of imminent danger, prompting the latter to escape from or avoid such danger and in the process, sustains injuries or dies, the person committing the felonious act is responsible for such injuries or death (US vs. Valdez, 41 Phil. 149; People vs. Arpa, 27 SCRA 1037).

10) A security guard, upon seeing a man scale the wall of a factory compound which he was guarding, shot and killed the latter. Upon investigation by the police who thereafter arrived at the scene of the shooting, it was discovered that the victim was unarmed. When prosecuted for homicide, the security guard claimed that he merely acted in self-defense of property and in the performance of his duty as a security guard. If you were the judge, would you convict him of homicide? [Q# 6(1)]

Suggested Answer:

Yes, I would convict the security guard for Homicide because his claim of having acted in defense of property and in the performance of a duty cannot fully be justified. Even assuming that the victim was scaling the wall of the factory compound to commit a crime inside the same, shooting his is never justifiable, even admitting that such act is considered unlawful aggression on property rights. In People vs. Narvaes (121 SCRA 329), a person is justified to defend his property rights, but all the elements of self-defense under Art. 11, must be present. In the instant case, just like in Narvaes, the second element (reasonable necessity of the means employed) is absent. Hence, he should be convicted of homicide but entitled to incomplete self-defense.

1995

1) Distinguish entrapment from instigation. [Q# 9(1)]

Suggested Answer:

In instigation, the instigator practically induces the prospective accused into commission of the offense and himself becomes co-principal. In entrapment, ways and means are resorted to for the purpose of trapping and capturing the lawbreaker while executing his criminal plan.

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1994

1) Bhey eloped with Scott. Wherepon, Bhey’s father, Robin, and brother, Rustom, went to Scott’s house. Upon reaching the house, Rustom inquired from Scott about his sister’s whereabouts, while Robin shouted and threatened to kill Scott. The latter then went downstairs but Rustom held his (Scott’s) waist. Meanwhile, Olive, the elder sister of Scott, carrying her 2-month old child, approached Ruston and Scott to pacify them. Olive attempted to remove Rustom’s hand from Scott’s waist. But Rustom pulled Olive’s hand, causing her to fall over her baby. The baby then died moments later. Is Rustom criminally liable for the death of the child? [Q# 5]

Suggested Answer:

Yes, Rustom is criminally liable for the death of the child because his felonious act was the proximate cause of such death. It was Rustom’s act of pulling Olive’s hand which caused the latter to fall on her baby. Had it not been for said act of Rustom, which is undoubtedly felonious (at least slight coercion) there was no cause for Olive to fall over her baby. In short, Rustom’s felonious act is the cause of the evil caused. Any person performing a felonious act is criminally liable for the direct, natural and logical consequence thereof, although different from what he intended (Art. 4, par. 1, RPC; People vs. Pugay, November 18, 1998).

2) Ben, a widower, driven by bestial desire, poked a gun on his daughter Zeny, forcibly undressed her and tied her legs to the bed. He also burned her face with a lighted cigarette. Like a madman, he laughed while raping her. What aggravating circumstance are present in this case? [Q# 8]

Suggested Answer:

Cruelty, for burning the victim’s face with a lighted cigarette, thereby deliberately augmenting the victim’s suffering by acts clearly unnecessary to the rape, while the offender delighted and enjoyed seeing the victim suffer in pain (People vs. Lucas, 181 SCRA 316).

Relationship, because the offended party is a descendant (daughter) of the offender and considering that the crime is one against chastity.

3) At about 9:30 in the evening, while Dino and Raffy were walking along Padre Faura Street, Manila, Johnny hit them with a rock, injuring Dino at the back. Raffy approached Dino, but suddenly, Bobby, Steve, Danny and Nonoy surrounded the duo. Then Bobby stabbed Dino. Steve, Danny, Nonoy and Johnny kept on hitting Dino and Raffy with rocks. As a result, Dino died. Bobby, Steve, Danny, Nonoy and Johnny were charged with homicide.

(a) Is there conspiracy in this case?

(b) Can the court appreciate the aggravating circumstances of nighttime and band? [Q# 9]

Suggested Answer:

(a) Yes, there is conspiracy among the offenders, as manifested by their concerted actions against the victims, demonstrating a common felonious purpose of assaulting the victims. The existence of the conspiracy can be inferred or deduced from the manner the offenders acted in commonly attacking Dino and Raffy with rocks, thereby demonstrating a unity of criminal design to inflict harm on their victims.

(b) No, nighttime cannot be appreciated as an aggravating circumstance because there is no indication that the offenders deliberately sought the cover of darkness to facilitate the commission of the crime or that they took advantage of nighttime (People vs. De los Reyes, 203 SCRA 707). Besides, judicial notice can be taken of the fact that Padre Faura is well-lighted. However, band should be considered, as the crime was committed by more than 3

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armed malefactors; in a recent Supreme Court decision, stones or rocks are considered deadly weapons.

4) JP, Aries and Randal planned to kill Elsa, a resident of Barangay Pula, Laurel, Batangas. They asked the assistance of Ella, who is familiar with the place. On April 3, 1992, at about 10:00 in the evening, JP, Aries and Randal, all armed with automatic weapons, went to Barangay Pula. Ella, being the guide, directed her companions to the room in the house of Elsa. Whereupon, JP, Aries and Randal fired their guns at her room. Fortunately, Elsa was not around as she attended a prayer meeting that evening in another barangay in Laurel. JP, et al, were charged and convicted of attempted murder by the RTC at Tanauan, Batangas. On appeal to the Court of Appeals, all the accused ascribed to the trial court the sole error of finding them guilty of attempted murder. If you were the ponente, how will you decide the appeal? [Q# 10]

Suggested Answer:

I will set aside the judgment convicting the accused of attempted murder and instead find them guilty of impossible crime under Article 4, par.2, in relation to Article 59 of the RPC. Liability for impossible crime arises not only when the impossibility is legal, but likewise when it is factual or physical impossibility, as in the case at bar. Elsa’s absence from the house is a physical impossibility which renders the crime intended inherently incapable of accomplishment. To convict the accused of attempted murder would make Article 4, par.2, practically useless, as all circumstances which prevented the consummation of the offense will be treated as an incident independent of the actor’s will, which is an element of attempted or frustrated felony (Intod vs. CA, 215 SCRA 52).

5) Abe, married to Liza, contracted another marriage with Connie in Singapore. Thereafter, Abe and Connie returned to the Philippines and lived as husband and wife in the hometown of Abe in Calamba, Laguna. Can Abe be prosecuted for bigamy? [Q# 12(2)]

Suggested Answer:

No, Abe may not be prosecuted for bigamy since the bigamous marriage was contracted or solemnized in Singapore; hence, such violation is not one of those where the RPC, under Article 2 thereof, may be applied extraterritorially. The general rule on territoriality of criminal law governs the situation.

1993

1) Pat. Negre saw Filemon, an inmate, escaping from jail and ordered the latter to surrender. Instead pf doing so, Filemon attacked Pat. Negre with a bamboo spear. Filemon missed in his first attempt to hit Pat. Negre, and before he could strike again, Pat. Negre shot and killed him. Can Pat. Negre claim self- defense? [Q# 11(1)]

Suggested Answer:

Yes, self-defense can be claimed as there is an imminent and great peril on the life of Negre.

2) Suppose Pat. Negre missed in his first shot, and Filemon ran way without parting with his weapon. Pat. Negre pursued Filemon but the latter was running so fact that Pat. Negre fired warning shots into the air, shouting for Filemon to stop. Inasmuch as Filemon continued running, Pat. Negre fired at him, hitting and killing him. Is the plea of self-defense sustainable? Why would you then hold Pat. Negre criminally liable? [Q# 11(2)]

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Suggested Answer:

No, self-defense is no longer sustainable as there is no more peril on his life. Excessive force was used.

3) Explain and illustrate the following:

(a) aberratio ictus

(b) impossible crime [Q# 12]

Suggested Answer:

(a) Aberratio ictus – A fired a gun at his father to kill him but hit instead a stranger.

(b) Impossible crime – Killing a dead person.

4) B, who is blind in one eye, conspired with M, a 16-year old boy, with C, who had been previously convicted of Serious Physical Injuries, and with R, whose sister was raped by X a day before, to kill the latter. B, C, and R were armed with .38 caliber revolvers, while M carried no weapon and acted only as a lookout. They proceeded to the house of X, riding in a motorized tricycle. Thereupon, C, on instruction of B to give X no chance, shot X who was them sleeping. Indicted for Homicide, as the information alleges no qualifying circumstance, specify the mitigating and aggravating circumstances present, and explain in whose favor, and against whom, must they be considered. [Q# 18]

Suggested Answer:

(a) Mitigating circumstances:

[1] B is entitled to the mitigating circumstance under paragraph 8 of Article 13 of the RPC;

[2] M is entitled to the privileged mitigating circumstance of minority under Article 68 of the RPC;

[3] Vindication of a grave offense in favor of R because his sister was raped by X a day before the shooting, and even if there was an interval of 1 day between the rape and the killing.

(b) By reason of the amendment in Rules of Criminal Procedure, requiring aggravating circumstances to be likewise alleged in the information, no aggravating circumstances may be appreciated in this case. [mine]

1992

1) Tommy saw Lino and Okito engaged in a street fight. Lino then suddenly drew his balisong and lunged at Okito. In an effort to break the fight, Tommy tried to snatch the balisong from Lino but not before the latter had inflicted a wound on Okito. As Lino withdrew the weapon and attempted to stab Okito a second time, Tommy tried to grab the weapon again. In so doing, his left forearm was slashed. As he succeeded snatching away the balisong with his right arm, it flew with such force, that it hit Nereo, a passerby, who was seriously injured.

(a) What is the criminal liability of Lino with respect to Okito, Tommy and Nereo?

(b) In turn, is Tommy criminally liable to Nereo? [Q# 2]

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Suggested Answer:

(a) As far as Okito is concerned, Lino is liable for frustrated homicide, assuming that the wound suffered by Okito is such that for reasons or causes independent of the will of Lino (such as timely medical attention), Okito would have died. If the injury is not serious enough, the liability is only attempted homicide. Intent to kill is manifest because of the use of a deadly weapon. For the injury on the arm of Tommy, Lino is liable only for physical injuries. Apparently, there is no intent to kill.

For Nereo, Lino should be liable for serious physical injuries as the wounding of Nereo was the natural and logical consequence of Lino’s felonious act.

(b) Tommy is exempted from criminal liability for the injury to Nereo as he was performing a lawful act with due care, and the injury was caused by mere accident (Art.12, par.4) or that he was in lawful exercise of a right (Art. 11, par.6) that is, defense of a stranger.

2) As Sergio, Yoyong, Zoilo and Warlito engaged in a drinking spree at Heartthrob Disco, SPO3 Manolo Yabang suddenly approached them, aimed his revolver at Sergio whom he recognized as a wanted killer, and fatally shot the latter. Whereupon, Yoyong, Zolilo and Warlito ganged up on Yabang. Warlito, using his own pistol, shot and wounded Yabang.

(a) What are the criminal liabilities of Yoyong, Zoilo and Warlito for the injury to Yabang? Was there conspiracy and treachery?

(b) In turn, is Yabang criminally liable for the death of Sergio?

Suggested Answer:

(a) If they have to be criminally liable at all, each will be responsible for their individual acts, as there appears to be no conspiracy, as the acts of the 3 were spontaneous and a reflex response to Yabang’s shooting of Sergio. There was no concerted act that will lead to a common purpose.

Treachery cannot likewise be appreciated as there was no conscious adoption of means, methods or form to facilitate the commission of the felony

(b) Yabang is liable for Homicide for the killing of Sergio, as the attack was frontal. Sergio being a suspected killer, is not justification to be killed by Yabang (People vs. Oanis).

3) Upon learning that the police wanted him for the killing of Polistico, Jeprox decided to visit the police station, to make inquiries. On his way, he met a policeman who immediately served upon him the warrant for his arrest. During the trial, in the course of the presentation of the prosecution’s evidence, Jeprox withdrew his plea of not guilty and entered a plea of guilty. Can he invoke the mitigating circumstances of voluntary surrender and plea of guilty? [Q# 5]

Suggested Answer:

Jeprox is not entitled to the mitigating circumstance of voluntary surrender as his going to the police station was only for the purpose of verification of the news that he is wanted by the authorities. In order to be mitigating, surrender must be spontaneous and that he acknowledges his guilt.

Neither is plea of guilty a mitigating circumstance because it was a qualified plea; besides, Article 13, par. 7 provides that confession of guilt must be done before the prosecution had started to present evidence.

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1991

1) In an information for Murder against A, B, and C, the prosecution alleges Treachery as the qualifying circumstance and the following generic aggravating circumstances: [1] Nocturnity, [2] Abuse of Superior Strength, and [3] Employment of means to weaken the defense. At the trial, the prosecution, without objection for the de oficio counsel for the accused, proved evident premeditation. It likewise successfully proved the qualifying and the generic aggravating circumstances alleged in the information.

(a) For the purpose of determining the appropriate penalty to be imposed upon the accused, may the court take into account evident premeditation and the other generic aggravating circumstances?

(b) Supposing that treachery was not proved, may evident premeditation, which was duly proved, be considered as the qualifying circumstances?

(c) If the prosecution failed to prove treachery and did not offer any evidence to prove evident premeditation, does acquittal of the accused follow? [Q# 10]

Suggested Answer:

(a) In the light of the amendment to the Rules of Criminal Procedure, which now requires that aggravating circumstances must be alleged in the information, evident premeditation proved in this case cannot be appreciated. [mine]

Since treachery absorbs nocturnity, abuse of superior strength and employing means to weaken the defense, they can no longer be considered as additional circumstances.

(b) No, since it was not alleged in the information.

(c) No, but liability will only be for homicide, as there is no circumstance to qualify it to murder.

1990

1) In mercy killing, is the attending physician criminally liable for deliberately turning off the life support system consequently costing the life of the patient? How about in an instance when in saving the life of the mother, the doctor sacrificed the life of the unborn child? [Q# 3]

Suggested Answer:

The attending physician is criminally liable. Euthanasia is not a justifying circumstance in Philippine jurisdiction.

There is no criminal liability on the part of the doctor because his acts are justified under Article 11(4) of the RPC which provides that: “The following do not incur any criminal liability: x x x [4] any person, who in order to avoid an evil or injury, does an act which causes damage to another, provided that the following requisites are present: First, that the evil sought to be avoided actually exists; Second, that the injury feared be greater than that to avoid it; Third, that there be no other practical and less harmful means of preventing it.”

2) In the middle of the night, Enyong head the footsteps of an intruder inside their house. Enyong picked up his rifle and saw a man, Gorio, with a pistol, ransacking Enyong’s personal effects in his study. He shot and killed Gorio.

(a) Is Enyong criminally liable for killing the robber Gorio?

(b) Suppose Enyong shot Gorio while he was running away from Enyong’s house with his, television set, what is Enyong liable for?

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Suggested Answer:

(a) Enyong is not criminally liable because he was acting in defense of property rights. Under the case of People vs. Narvaez (121 SCRA 389), defense of property need not necessarily be coupled with aggression against persons.

(b) There is criminal liability this time with the mitigating circumstance of incomplete self-defense. Under the case of People vs. Narvaez, defense of property can be availed of even when there is no assault against a person. It is recognized as an unlawful aggression. [Q# 4]

3) Rina, who was a suspended Clerk of Court, was convicted of malversation and was sentenced to imprisonment, to pay a fine of P5,000 and to indemnify the government in the same amount. Pending appeal in the CA, she was extended an absolute pardon by the President. Thus, she applied for reinstatement, payment of backwages, and absolution from payment of the fine and indemnity. Decide the issue with reasons.

Suggested Answer:

Rina cannot apply for reinstatement, etc. as there was no effective pardon by the President. It is basic that pardon can only be granted after final conviction. (Barrioquinto vs. Fernandez 85 Phil 642)

4) Rodolfo is an informer who told the police authorities that Aldo is a drug pusher. Policeman Taba then posed as a buyer and persuaded Aldo to sell marijuana worth P10 to the former. Aldo agreed. He delivered the goods and so was apprehended with the marked money. He is now prosecuted for violation of the Dangerous Drugs Act.

(a) Aldo’s defense is that he was the victim of an instigation of the police who persuaded him to sell the goods to him. Decide the case with reasons.

(b) Suppose policeman Taba told Aldo that he (Taba) has a supply of marijuana and he persuaded Aldo to sell it to him because he (Taba) needed the money badly. Aldo succeeded in selling P20 worth of marijuana to Moye. What is the criminal liability of Aldo if apprehended in the act? [Q# 14]

Suggested Answer:

(a) Aldo’s defense is untenable as what happened here was entrapment. With or without the act of Policeman Taba, Aldo would have went on selling the marijuana to another buyer. The finding, it must be noted, was that Aldo was continuously engaged in the act of drug pushing (People vs. Tia, 51 OG 1863).

(b) Aldo is liable for violating the Comprehensive Dangerous Drugs Act in performing the act of selling narcotics.

1989

1) What do you understand by aberration ictus, error in personae, and praeter intentionem? Do they alter the criminal liability of an accused? [Q# 1]

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Suggested Answer:

Aberratio ictus, error in personae and praeter intentionem are the 3 ways by which a person may commit a felony, although the wrongful act done is different from that which he intended.

In aberration ictus, there is a mistake in the blow, meaning to say, that the offender intending to cause an injury to one person actually inflicts it on another because of lack of precision, as for example, when A, intending to kill B, fires his gun at the latter but because of poor aim or lack of precision, he hits C instead, who suffers serious physical injury.

In error in personae, there is a mistake in the identity of the victim, as for instance, when A, intending to kill B, his enemy lay in ambush for the latter to pass along a dark alley. Because of the darkness, A fired his gun at a person passing by, thinking him to be B. It turned out that the person shot was C, A’s father.

In praeter intentionem, the injurious result is greater that that intended by the offender, the act exceeds the intent, as for instance, where A, without intent to kill, strikes B with his fist at the back of the head, causing B to fall down with his head hitting the asphalt pavement, resulting in the fracture of his head that caused his death.

The presence of these circumstances will alter the criminal liability of the accused. Thus:

In aberration ictus, 2 offenses are actually committed by the offender, that which he intended to commit and that which he actually committed. But if these 2 offenses are both either grave or less grave, since they are produced by one single act, a complex crime will result.

In the case of error in personae, the offender shall be guilty of the crime actually committed by him, but the penalty to be imposed shall either be the penalty for the crime actually committed or that for the crime intended to be committed, whichever is lower, but the same will be imposed in the maximum period.

In the case of praeter intentionem, the offender will incur criminal liability for the felony actually committed by him, but he will be entitled to the mitigating circumstance of not having intended to commit so grave a wrong as that which he committed.

2) Nicandro borrowed Valeriano’s gun, a high-powered M-16 rifle, to hunt wild pigs. Nicandro was accompanied by his friend, Felix. On their way to the hunting ground, Nicandro and Felix met Pedro near a hut. Pedro told them where to hunt. Later, Nicandro saw a pig and then shot ad killed it. The same bullet that killed the pig, however, struck a stone and ricocheted hitting Pedro on his breast. Pedro later died. May Nicandro be held liable for the death of Pedro? [Q# 2]

Suggested Answer:

Nicandro may be held liable for the death of Pedro. While Pedro’s death would seem to be accidental, the requisites of exempting circumstance of accident are not all present. Said requisites are:

[1] A person is performing a lawful act;

[2] with due care;

[3] He causes an injury to another by mere accident;

[4] Without fault or intention of causing it (Art. 12, par. 4, RPC)

When Nicandro borrowed Valeriano’s high powered M-16 rifle and used it for hunting wild pigs, he committed the crime of illegal possession of firearms, as he does not appear to have either a license to possess a high-powered gun or to carry the same outside his residence. At the same time, he shot at the wild pig, therefore, Nicandro was not performing a lawful act.

Furthermore, considering that the M-16 is a high-powered gun, Nicandro was negligent in not foreseeing that bullets fire from said gun may ricochet.

3) Andres was earlier convicted of adultery and served an indeterminate penalty, the maximum term of which did not exceed 2 years, 4 months, and one day of prision correctional. A month after his

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release from prison, he was charged with the crime of serious physical injuries. Later, Andres was again charged with homicide punishable by reclusion temporal. He entered a plea of guilty in the homicide case. May the aggravating circumstances of recidivism and/or habituality (reiteracion) be appreciated against Andres? [Q# 4]

Suggested Answer:

The aggravating circumstance of recidivism cannot be taken against Andres. For this circumstance to exist, it is necessary that –

[1] The offender is on trial for an offense;

[2] He was previously convicted by final judgment of another crime;

[3] Both the first and the second offenses are embraced in the same title of the Code; and

[4] The offender is convicted of the new offense (Art. 14, par. 9, RPC)

At the time of his trial for homicide, Andre was not previously convicted by final judgment of another crime embraced in the same title of the RPC. Adultery, which is his only previous conviction by final judgment, is a crime against chastity, and therefore is not embraced in the same title of the Code as homicide, which is crime against persons.

As for the charge of serious physical injuries, although serious physical injuries is also a crime against persons, it appears that he had not as yet been convicted, much less by final judgment, of the charge at the time that he was facing trial for homicide.

The aggravating circumstance of habituality or reiteracion can likewise not be taken against Andres because in order that his circumstance can exist, it is necessary that he was facing trial for homicide.

The aggravating circumstance of habituality or reiteracion can likewise not be taken against Andres because in order that this circumstance to exist, it is necessary that –

[1] The accused is on trial for an offense;

[2] He previously served sentence for another offense to which the law attaches an equal or greater penalty, or for 2 or more crimes to which it attaches a lighter penalty than that for the new offense;

[3] He is convicted of the new offense.

In the case at bar, Andres had previously served sentence only for one offense, that of adultery, but the penalty for adultery (prision correctional) is lighter than the penalty for homicide (reclusion temporal). Consequently, there is no aggravating circumstance of habituality or reiteracion.

4) Boy Bala was a notorious gang leader who had previously killed a policeman. The Chief of Police ordered his vice squad headed by Captain Aniceto, to arrest Boy Bala and should he resist arrest, to shoot and kill him. Acting upon an informer’s tip, Aniceto and 2 of his trusted men went to the Corinthian nightclub where they saw Boy Bala dancing with a hostess. Without any warning, Aniceto shot at Boy Bala, who slumped on the floor. As Aniceto aimed another shot at Boy Bala, the brother of the latter, Pedro, who was seated at a table nearby, got hold of a table knife and stabbed Aniceto, killing him instantly. The Chief of Police filed a homicide case against Pedro for the death of Aniceto. On the other hand, Pedro filed a complaint for murder against the Chief of Police for the death of Boy Bala alleging that the issuance of the shoot-to-kill order was illegal and the Chief of Police was liable as a principal by inducement. How tenable are the respective claims of the Chief of Police and of Pedro? [Q# 5]

Suggested Answer:

The charge for murder against the Chief of Police for the death of Boy Bala is not tenable. Although, the Chief of Police is the superior of Captain Aniceto, who shot Boy Bala in cold blood, he cannot be held accountable for the act of Aniceto. His order was specific: to arrest Boy Bala, and should he resist arrest, to shoot and kill him. Aniceto did not act in compliance with this order. He shot Boy Bala without warning, without even attempting to make an arrest. Consequently, it

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could not be said that the killing of Bala by Aniceto was induced by the Chief of Police so as to make the latter criminally liable as a co-principal by inducement. The liability for the death of Bala is individual and not collective.

On the other hand, the charge of homicide against Pedro for the stabbing of Aniceto is likewise not tenable. Pedro acted in legitimate defense of relative, he being the brother of Boy Bala. All the requisites of this justifying circumstance are present. Thus:

[1] There was unlawful aggression. At the time that Pedro stabbed Aniceto, the latter had already shot at Boy Bala and was in the act of shooting him for the second time. The aggression is unlawful although Aniceto is a police officer and Boy Bala is a notorious gangster. By shooting Boy Bala without warning instead of attempting to arrest him first, Aniceto became an unlawful aggressor.

[2] There was reasonable necessity of the means employed by Pedro to prevent or repel unlawful aggression. The use of a knife against a gun for defense is reasonable.

[3] assuming that Boy Bala had provoked that attack on his person by Aniceto because of having earlier killed a policeman, it does not appear that Pedro, the one making the defense, had taken any part in said provocation.

1988

1) What are the limitations upon the power of Congress to enact penal laws? [Q# 1(a)]

Suggested Answer:

The limitations upon the power of Congress to enact penal laws are as follows:

(a) Congress cannot enact an ex post facto law.

(b) Congress cannot enact a bill of attainder.

(c) Congress cannot provide for a cruel punishment

2) Are there common law crimes in our jurisdiction? [Q# 1(b)]

Suggested Answer:

There are none. The rule is “nullum crimen, nulla poena sine lege” – there is no crime if there is no law punishing it.

3) State the characteristics of criminal law and explain each. [Q# 1(c)]

Suggested Answer:

The characteristics of criminal law are as follows:

(a) GENERALITY – that the law is binding upon all person who reside or sojourn in the Philippines, irrespective of age, sex, color, creed, or personal circumstances.

(b) TERRITORIALITY – that the law is applicable to all crimes committed within the limits of Philippine territory, which includes its atmosphere, internal waters and maritime zone.

(c) PROSPECTIVITY – that the law does no have any retroactive effect, except if it favors the offender, unless he is a habitual delinquent or the law otherwise provides.

4) May a crime be committed without criminal intent? [Q# 2(b)]

Suggested Answer:

A crime may be committed without criminal intent in 2 cases:

(a) Offense punishable as mala prohibita;

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(b) Felonies committed by means of culpa.

5) When are light felonies punishable and who are liable in light felonies? [Q# 2(c)]

Suggested Answer:

Light felonies, according to Article 7 of the RPC are punishable “only when they have been consummated, with the exception of those committed against persons or property.”

Article 16 of the RPC provides that the following are criminally liable for light felonies:

[1] Principals;

[2] Accomplices.

6) At a pre-wedding celebration where plenty of people were milling and walking about or standing close together, a mad killer shot someone at the wedding party. The 3 appellants were convicted by the lower court as co-conspirators of the killer because they were allegedly with him before, during, and after the shooting. It was proven conclusively that the appellant were friends of the killer; that they went together with the killer to the celebration; and that they left at the same time with the killer, after the shooting. However, the appellants had no guns and passively witnessed the shooting, without intervening in the killing in any way nor shielding the killer. Is here conspiracy among them? [Q# 11(b)]

Suggested Answer:

There is no conspiracy among them because as the problem has stated, they passively witnessed the shooting. No overt act was committed; therefore, the element that the conspiracy must be proved as the essence of the crime itself is not present.

7) The victim Dario went to the Civil Service Commission (CSC) at about 11:00am to have some documents signed, and because his efforts were frustrated, he angrily remarked in the presence of the accused, Benito, that the CSC is a hang-out of thieves. The accused felt alluded to because he was then facing criminal and administrative charges on several counts involving his honesty and integrity, and pulling out a gun from his desk, he shot Dario, inflicting a fatal wound. Benito is now invoking the mitigating circumstances of immediate vindication of a grave offense. Decide the case. [Q# 13(a)]

Suggested Answer:

The mitigating circumstances of immediate vindication of a grave offense cannot be considered because to be applicable, Article 13, par. 5 requires that: “Mitigating circumstances. — x x x 5. That the act was committed in the immediate vindication of a grave offense to the one committing the felony, his spouse, ascendants, brothers or sisters, or relatives by affinity within the same degrees.”

Instead, the circumstances of passion or obfuscation should be considered. Benito should be charged with frustrated homicide with the mitigating circumstances of passion.

8) The robbers killed a mother and her baby, then threw the body of the baby outside the window. Can the aggravating circumstances of “cruelty” be considered in this case? [Q# 13(b)]

Suggested Answer:

Cruelty cannot be considered in this case because the aggravating circumstance of cruelty requires deliberate prolongation of the suffering of the victim. In this case, the baby was dead already so that there is no more prolongation to speak of.

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1987

1) Pedro confronted Jose one morning near the latter’s house and angrily inquired why he let loose his carabaos, which destroyed his plants. Pedro saw that Jose was armed with a dagger tucked on his waist, and thinking that Jose would react violently, Pedro immediately drew his revolver. Instinctively, Joe grabbed the gun from Pedro’s hand and a struggle for possession of the gun ensued, as a result of which the gun was thrown one meter away. Pedro jumped for the gun, and Jose unsheathed his dagger and stabbed Pedro at the base of his neck, causing the latter to fall down. Jose ran away as he was afraid Pedro’s relatives might kill him. He was apprehended 3 days later in another barrio. Fortunately, Pedro survived after 40 days of hospitalization. The gun turned out to be without live bullets. During the trial for frustrated homicide against Jose, Pedro testified that he drew his gun even while he knew it had no bullets, merely to scare Jose, and he jumped for it when it was thrown away for the same purpose. Jose pleaded self-defense. The Fiscal argued that Jose’s act of running away is evidence of guilt and negates self-defense. He also said that, in any event, there was no reasonable necessity of the means employed – namely, stabbing with a dagger – because Pedro’s gun had no bullets. Decide the case. [Q# VII]

Suggested Answer:

Jose is entitled to self-defense.

Considering the circumstance of the case, unlawful aggression, the first element of self-defense is present. The intimidating attitude of Pedro when he drew his revolver constitutes imminent unlawful aggression. Jose did not give any provocation to Pedro. What Jose did in grabbing the gun was to prevent an aggression that is expected. Stabbing Pedro with a dagger was the only available means to prevent the expected aggression, considering that Jose acted by following his instinct of self-preservation. The flight of Jose after stabbing Pedro cannot be considered as evidence of guilt because he did so as he was afraid that the relatives of Pedro might kill him.

1986

1) Aaron is the defendant in a civil case being tried in the Manila RTC. Together with his lawyer, Aaron went to Singapore to take the deposition of a witness who, Aaron hope, would support his defense. The deposition was taken in a function room of the Singapore Hotel before Mr. Aguila, the Philippine Consul General. Neither plaintiff nor his counsel attended the proceeding. After the deposition taking, Aaron, not satisfied with the results, persuaded Aguila to make substantial changes in the transcripts of stenographic notes. Aaron offered $5,000 (Singaporean) which Aguila readily accepted. Leona, vacationing daughter of Aguila, was given $200 by Aaron, when she made the alterations in the transcripts. The deponent, with neither notice nor knowledge of the alterations, signed the deposition. May Aaron, Aguila, and Leona be prosecuted in a Philippine court for offenses punishable under our RPC? What offenses, if any? [Q# 1]

Suggested Answer:

Only Aguila can be prosecuted before the Philippine Court. Being the Philippine Consul General in Singapore, as a public officer, the provisions of the RPC can be given extra-territorial application, as the crime committed by him is related to the duties of his office. Aaron and Leona, being private persons, cannot be prosecuted before the Philippine Court because regarding the offenses committed by them, the provisions of the RPC cannot be given extra-territorial application.

Aguila committed bribery and Aaron, corruption of a public officer. Leona committed falsification of a public document as a principal by direct participation and Aaron as a principal by inducement.

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2) Give at least 4 distinctions between habitual delinquency and recidivism. Can a person be a habitual delinquent without being a recidivist? [Q# 5]

Suggested Answer:

The four distinctions between habitual delinquency and recidivism are:

(a) In habitual delinquency, the crimes are specified, which are robbery, theft, estafa, falsification, serious and less serious physical injuries. In recidivism, the crimes are embraced in the same title of the RPC.

(b) In recidivism, no period of time is fixed between the former conviction and the last conviction. In habitual delinquency, conviction of any of the specified crimes must take place within 10 years from the last conviction or release.

(c) In recidivism, it is enough that there be a second conviction of any crime embraced in the same title of the last or the first crime. In habitual delinquency, there must be at least a third conviction of any of the specified crimes.

(d) Recidivism is an aggravating circumstances and if not offset, serves to increase the penalty. Habitual delinquency provides for the imposition of an additional penalty.

There may be habitual delinquency without recidivism if the 3 convictions refer to crimes not embraced in the same title of the RPC, like robbery in the first conviction, a crime against property, falsification in the second conviction, a crime against public interest, and serious physical injuries in the third conviction, a crime against persons.

1985

1) DD, a member of the NBI, was approached by his compadre, EE, regarding the latter’s plan to hold-up a nearby bank. DD agreed to lend his car as the get-away car; he also asked his driver, FF, to drive the car for EE. On the day the crime was to take place, DD tipped off the local police. EE was arrested as he pointed a gun at the bank teller demanding cash.

(a) Can EE raise the defense of instigation by DD?

(b) Did DD incur any liability? [Q# 3]

Suggested Answer:

(a) EE cannot raise the defense of instigation by DD. Instigation takes place when a peace officer, in the performance of duties, induces a person to commit a crime. The reason why the crime is committed is because of the inducement. The facts of the problem are clear that DD did not induce nor instigate EE to plan the hold-up of the bank. The plan was already conceived by EE when he approached DD. When DD agreed to the plan by lending EE his car as a get-away vehicle and his driver to drive it for EE, he devised a way to facilitate the apprehension of EE, as when DD in fact tipped off the local police on the day the crime was to take place. This is not a case when an innocent person is induced to commit a crime merely to prosecute him. It is simply a trap to catch a criminal (People vs. Valmores, 122 SCRA 922).

(b) DD is not criminally liable. His agreeing to the plan of EE to hold up the bank is merely a way to trap or facilitate the arrest of EE. This is evidence when DD tipped off the police on the day when the crime is to be committed. DD acted in the performance of his duties as an officer of the law to entrap EE.

2) Intending to kill his estranged wife, Myrna, Anthony mixed poison in her coffee which would have normally killed her. After drinking the coffee, Myrna felt nauseated and vomited. Appalled by the suffering and helplessness of his wife, Anthony took pity on her and gave her an antidote. Myrna

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recovered completely after 10 days. Discuss with reasons the criminal liability, if any, of Anthony. May he invoke desistance in his favor? [Q# 5]

Suggested Answer:

Anthony will not be liable for frustrated parricide. Although the wife, Myrna, had drank the poisoned coffee, and all the acts of execution to kill her were already committed, she did not however die due to the antidote administered by Anthony. The crime was therefore not produced due to the voluntary act of Anthony. In a frustrated felony, the acts of execution have been performed which would produce the felony as a consequence but nevertheless do not produce it by causes independent of the will of the offender. So, if the perpetrator himself prevented the consummation of the crime, it is not frustrated. In that sense, when Anthony gave the antidote to his wife when he saw her suffering after drinking the poisoned coffee, such act may be considered desistance in killing her, although as rule, desistance refers to acts of execution. The facts of the problem merely state that after the administration of the antidote, the wife recovered after 10 days. It may be presumed that she was ill during that period. Since there is no mention of medical attendance nor incapacity for work, the offense will be slight physical injuries under par. 2, Article 266 of the RPC.

I think the more appropriate charge should have been Administering Injurious Substances or Beverages under Article 264. Anthony knowingly administered the poison to Myrna, initially with intent to kill. But by his desistance, the intent to kill was deemed to have ceased; hence, fitting squarely within the coverage of Article 264. [mine]

3) Pat. Josue, a member of the INP Western Police District, together with 2 other policemen, was chasing Katindig, a notorious police killer. Katindig entered a nearby dimly lighted warehouse. Josue and his companions continued pursuing him. When they reached the mezzanine, Josue saw a man crouching behind a pile of boxes, holding what appeared to be a long rifle. When the man suddenly stood up and faced Josue and his companions, Josue fired at the man, hitting him fatally. It turned out, however, that the deceased was the warehouseman who was holding a mere lead pipe. Discuss Pat. Josue’s criminal liability for the said killing, stating your reasons. [Q# 6]

Suggested Answer:

Pat. Josue will not incur any criminal liability. He can invoke in his favor mistake of fact due to good faith. Under the circumstances, Pat. Josue shot the victim in the honest belief that he was the notorious police-killer whom they were chasing. When he fired his gun, he had no opportunity to verify first the identity of the victim. He acted, therefore, without criminal intent and had the facts turned out to be true, as Pat. Josue believed them to be, that is, that the victim was the notorious police-killer, that act committed would have been lawful.

4) Feeling homesick and terribly missing his wife after a long absence, Ronald, without notice, came home from Saudi. Arriving at their residence, he immediately proceeded to their bedroom where he saw his wife lying on their bed under a mosquito net locked in embrace with his compadre Dante Ayala. Comment on the validity of Dante’s conviction. [Q# 9(A)]

Suggested Answer:

The conviction of Dante was valid. He cannot claim self-defense as there was no unlawful aggression on the part of the victim. When Ronald drew his gun upon surprising his wife locked in embrace with his compadre Dante while lying on their bed at their residence, his act was natural and lawful as it was made by a deceived and offended husband. The act of Dante in maintaining illicit relations with the wife of his compadre was unlawful (US vs. Merced, 89 Phil. 189).

5) After engaging in a drinking spree at Celia’s birthday party, a turbulent commotion took place in Celia’s premises involving no less than 40 guests during which occasion, Tito was killed by shots

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fired form a .45 cal. pistol. The fiscal filed a case of “death in Tumultuous Affray” against all the participants in the melee. Do you agree? Reasons.

Suggested Answer:

The charge is not proper. In a tumultuous affray, the actual killer of the person killed is not known. Then the one liable will be the person known to have inflicted serious physical injuries upon the victim. If he is also not known, the one liable will be the person known to have employed violence upon the victim. Death in a tumultuous affray under Article 251 of the RPC applies if the killer of the person killed in the course of the affray cannot be ascertained. (US vs. Tandoc, 40 Phil 954)

6) Cris Vera, an influential member of the Sangguniang Panlungsod of Butuan City and a well-known radio commentator of the said police, addressed a written communication to Director Jose of Butuan City LTC, asking for the issuance of a “temporary permit” for a special trip to Ozamis City of a TPU jeepney belonging to Vera’s relative which got involved in a vehicular collision with a private car in the latter’s place. The purpose of the said request is to make it appear that the trip although not within the authorize route of the TPU jeepney’s certificate of public convenience, was nevertheless authorized so as to enable the owner to recover on the insurance policy. Director Jose refused, fearful of the disastrous consequences. Thereafter, he was the subject of unsavory comments and furious attack by Cris Vera in his program. Director Jose then countered with a criminal complaint for violation of the Anti-Graft Law against Cris Vera. Will the complaint prosper? Discuss with reasons.

Suggested Answer:

The criminal complaint will not prosper. The mere act of Cris Vera, an influential member of the Sangguniang Panlungsod of Butuan City and a well-known radio commentator, of addressing a letter to Director Jose of Butuan City LTC, asking for the issuance of a ”temporary permit” is not “persuading, inducing or influencing” another public officer to perform an act in violation of the rules and regulations of the office (Section 3(a), RA 3019). Generally, to induce persuade or influence is to give a price, reward, or promise. It is essential that the accused should have acted for a consideration, payment or remuneration (People vs. Bornales 13 SCRA 972). The fact that Director Jose was the subject of unsavory comments and furious attacks by Cris Vera in his radio program after the denial of the request, as its purpose was to enable the owner of the TPU to recover on the insurance policy, do not also constitute “persuading or influencing” as there is no mention that the attacks were uttered due to the denial of such request for the issuance of the “temporary permit”.

7) At a meeting of about 50 residents of Bo. Tatalon, Quezon City, Juan, whose son was shot by the marines, told the residents that it was hopeless to seek redress from the authorities and that the only recourse was to topple it by force. Among those in the meeting were 4 burly looking men in civilian clothes but with sidearms, all of whom stayed up to the end of the meeting. They even participated therein by edging and cheering Juan. Quezon City policemen arrived and they arrested Juan together with Pedro and Jose who were with Juan on the platform. The 4 armed persons, however, quietly disappeared when the policemen arrived. (a) As the prosecutor, what case will you file against Juan, Pedro and Jose? State your reasons. (b) Would your answer be the same if the 4 armed men turned out to be intelligence operatives of the Philippine Constabulary? Explain your answer.

Suggested Answer:

(a) As a prosecutor, I will file against Juan, Pedro and Jose a charge of Illegal Assembly under Article 146. What Juan told the residents during the meeting, that “it was hopeless to seek redress from the authorities and that the only recourse was to topple it by force,” is an act of

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propaganda against the government or to undermine the authorities by eroding the faith and loyalty of the people.

(b) The answer is still the same. When the 4 burly men participated in the meeting by “edging and cheering” Juan while he was speaking, the crime of Illegal Assembly was already being consummated.

8) While manning the traffic lights at the intersection of España and Washington Streets, Patrolman Torres ordered BB to stop his taxi, threatened to arrest him and confiscate his driver’s license allegedly for speeding and reckless driving. Conversant with the dirty ways of some traffic officers, BB pulled out his wallet, picked up his driver’s license with the hidden P20 bill inside the same, and handed it to Patrolman Torres. Thereafter, Patrolman Torres returned BB’s license and allowed him to go. What criminal case may be filed against Pat. Torres and/or BB under the circumstances? Discuss.

Suggested Answer:

Patrolman Torres should be charged with bribery and BB, the driver, for corruption of a public officer, in the supposition that the driver was speeding and for reckless driving. The money was given by the driver so as not to be arrested and for his driver’s license not to be confiscated.

But if the driver was not speeding nor was there reckless driving but the policeman threatened to arrest him and confiscate his driver’s license, the giving of the P20 bill would be due to the intimidation employed by the policeman. In this case, the policeman will be liable for robbery through intimidation. The driver will not incur any criminal liability.

1984

1) In what specific ways does the RPC exhibit due regard for the minority of the accused:

(a) In the determination of his criminal liability?

(b) In the determination of the degree of his culpability?

(c) In the imposition of penalties upon him? [Q# 2]

Suggested Answer:

The specific ways provided by the RPC regarding the minority of an accused are as follows:

(a) In the determination of his criminal liability

Under Article 12 of the RPC, a person under 9 years of age is exempt from criminal liability.

A person over 9 years of age and under 15 years of age at the time of the commission of the crime is also exempt from criminal liability unless he has acted with discernment.

A minor 15 years and under 21 years of age is dealt with like an adult offender.

(b) In the determination of his degree of culpability

A minor under 18 years of age at the time of the commission of the crime is entitled to a privileged mitigating circumstance.

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(c) In the imposition of the penalty

Under PD 603, as amended by PD 1179, the imposition of the sentence may be suspended upon the application of the minor if found guilty after trial. If granted by the court, the minor is ordered committed to an institution until he reaches the age of majority. If the minor during confinement has been found to be incorrigible, he is returned to the court for the pronouncement of the sentence. He shall be credited in the service of the sentence the full time spent in actual confinement and detention in said institution. The benefit of this provision shall not apply to a minor who has already enjoyed suspension of sentence, nor to one convicted of an offense punishable by death or life imprisonment. The minor must be under 18 years of age at the time of the commission of the crime (PD 1179) and at the time of the trial (People vs. Casiguran, November 7, 1979).

2) From the viewpoint of the accused, is it essential to make a distinction between instigation and entrapment? [Q# 3]

Suggested Answer:

From the viewpoint of the accused, it is essential to make a distinction between instigation and entrapment. The reason ins that instigation is exempting whereas entrapment is not exempting nor mitigating. Instigation takes place when a peace officer induces a person to commit a crime. Without the inducement, the crime would not be committed. For reason of public policy, it is exempting; otherwise, the peace officer would be a co-principal. The instigator must not be a private person. In the case of entrapment, ways and means are devised by a peace officer to trap or capture a person who has committed a crime. With or without the entrapment, the crime has been committed already. Hence, it is not a bar to the prosecution of the offender (People vs. Valmores, 122 SCRA 922).

3) Despite denial of a rally permit form the City Mayor, a group of students from different schools held a rally at Liwasang Bonifacio. At the rally site, they were met by members of the WPD Dispersal Unit, armed with truncheons, water hose, etc.

When student A saw a policeman striking a fellow student, B, with a truncheon, he hit the forearm of the policeman with an empty bottle of Coke in order to prevent the latter from further hurting B. At this point, other policemen cam, subdued A and arrested him.

For what crime or crimes, if any, under the RPC, may A be charged? If A is liable for any crime, what circumstances would mitigate or aggravate his liability under the given facts? [Q# 4]

Suggested Answer:

A is not liable under the RPC. He acted in defense of a stranger, which has the following requisites: [1] unlawful aggression; [2] reasonable necessity of the means employed to prevent or repel it; [3] the person defending is not induced by revenge, resentment or other evil motive (Art. 11, par. 3, RPC). The policeman who hit the student B with a truncheon, while the students were at the rally site, abused or exceeded his authority. In this case, the policeman would be an unlawful aggressor. A merely acted on impulse to prevent the policeman from further hurting B. The means employed was reasonable under the circumstances to prevent or repel the aggression. Finally, A was not actuated by revenge, resentment or any evil motive.

4) When does proof of motive become a crucial consideration in a criminal prosecution? [Q# 6(B)]

Suggested Answer:

Motive becomes a crucial consideration in criminal prosecution when there is doubt as to whether or not the accused committed the crime.

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5) What categories of crime do not require criminal intent? [Q# 6(c)]

Suggested Answer:

Criminal intent is not required in felonies committed by negligence or imprudence, and in offenses which are mala prohibita.

6) From the standpoint of legal effect and weight, how would you distinguish generic aggravating from qualifying circumstances? [Q# 13]

Suggested Answer:

Generic aggravating and qualifying circumstances are distinguished as to legal effect and weight, as follows:

[1] A generic aggravating circumstance can be offset by an ordinary mitigating circumstance, but not so in a qualifying circumstance;

[2] A generic aggravating circumstance not offset has the effect of increasing the penalty to the maximum but not beyond that provided by law. A qualifying circumstance changes not only the nature but also the name of the crime and the offender becomes liable for the new offense which is more serious in nature.

7) Aside from the procedural requirements, what are the other requisites for treachery to be considered as a qualifying circumstance? [Q# 14]

Suggested Answer:

The other requisites of treachery as a qualifying circumstance, aside from the procedural requirements are:

[1] Employment of means, methods or manner of execution which would insure the offender’s safety from any defensive or retaliatory act on the part of the offended party, which means no opportunity is given to the latter to defend himself or retaliate, and

[2] Such means, method, or manner of execution was deliberately or consciously chosen (People vs. Barnayo, 129 SCRA 725).

1983

1) Considering that the RPC provisions on justifying circumstances apply to anyone “who acts in defense of his person or rights,” can there be self-defense when there is simply an aggression against one’s property, not coupled with an attack against his person? [Q# 2]

Suggested Answer:

No. Self-defense will be incomplete. Under the Civil Code, there is unlawful aggression on the property rights of another. But to constitute self-defense of property, 2 elements must be considered, namely: reasonable necessity of the means employed to repel the aggression and lack of sufficient provocation on the part of the person defending his property. People vs. Apolinar (38 OG 2079) held that there is no self-defense of property if the attack on the person is not coupled with an attack on the person of the owner or possessor of the property. If for example, the owner shot the aggressor although his person was not attacked, self-defense of property will not be present, although there is unlawful aggression on his property right, because the means adopted to repel the aggression is not reasonable (People vs. Narvaez, 121 SCRA 403).

2) X already had 3 previous convictions by final judgment for theft when he was found guilty of robbery with homicide. In the last case, the trial judge considered against X both recidivism and

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habitual delinquency. X appealed, contending that conviction for one crime cannot twice be considered against the accused, once for the purpose of

3) Three persons – A, B, and C – were all found guilty of homicide. Each of them had been previously convicted of an offense: A, for robbery; B, for estafa; and C, for frustrated murder. In the homicide case, against whom may the aggravating circumstance of recidivism be appreciated? [Q# 8]

Suggested Answer:

Only against C. The reason is, homicide for which A, B and C were found guilty is embraced in the same title of the Code as frustrated homicide, for which C had been previously convicted. Recidivism is a personal cause which should affect only C, to whom it is attendant (Art. 62).

1982

1) Article 2 of the RPC states that the provisions of the said Code shall be applicable to crimes committed not only within the territorial jurisdiction of the Philippines, but also outside thereof, in the 5 instances mentioned therein. What are the underlying reasons behind, or rationale for each of those 5 instances? [Q# 1]

Suggested Answer:

The 5 instances provided in Article 2 of the RPC in which its provisions are applicable outside the territorial jurisdiction of the Philippines and the underlying reasons behind each of said instances are the following:

[1] When the offender should commit an offense while on a Philippine ship or airship.

For this exception to apply, the Philippine ship or airship must be registered under Philippine laws. As such, it is considered an extension of Philippine territory.

[2] When the offender should forge or counterfeit any coin or currency note of the Philippines, or obligations and securities issued by the government.

The reason is to protect Philippine Currency notes and obligations or securities issued by the government, in order to preserve the financial credit and stability of the government.

[3] When the offender should be liable for acts committed with the introduction in the Philippines of obligations and securities mentioned in paragraph 2.

The reason is to protect the economic interests of the Philippines, as the introduction of such forged or counterfeit obligations and securities into the country is as dangerous, if not more, as the forging or counterfeiting of the same.

[4] When the offender, while being a public officer or employee, should commit an offense in the exercise of his functions.

The offense committed by the public officer affects the integrity of the office and is against public administration of the Philippines. The law should follow the public officer wherever he may be. If such is not punished by the laws of the country where the public officer is at the time of its

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commission, or is not triable by its courts, the absence of this exception would not make the provisions o the Code applicable since the crime is committed outside of Philippine territory.

[5] When the offender should commit any of the crimes against the national security and the law of nations.

The reason is to safeguard the existence of the state.

2) A, intending to kill B, attacked the latter with a bolo. In trying to defend himself with a piece of wood by parrying the blows delivered by A, B hit C, an onlooker, on the head, as a result of which, C died. Is B liable for C’s death under the legal provisions that “although the wrong done be different from that intended?” [Q# 2]

Suggested Answer:

B is not liable for C’s death because he acted in self-defense. The legal provision that “although the wrong done be different from that intended” contemplates the commission of a felony, and the wrong done is the direct, natural, and logical consequence thereof, even though not intended. Had B acted in incomplete self-defense, then this provision would apply, because there is mistake in the blow or aberratio ictus. In the case of self-defense, however, which is a justifying circumstance, the act committed is lawful; hence, B would not incur any criminal or civil liability.

3) A, intending to kill B, shot the latter with a gun at close range. Although hit but not wounded, B grappled with A for the possession of the gun, until B succeeded in wresting it from his adversary. Immediately thereafter, B fired the gun at A whom he killed. Prosecuted for homicide, B interposed self-defense. The prosecution however contended self-defense was untenable because A had already been disarmed. Decide, explaining fully your decision. [Q# 3]

Suggested Answer:

The contention of the prosecution that self-defense was untenable because A had already been disarmed must be sustained. The reason is, there is no more aggression to be prevented or repelled. Upon almost identical facts, in the case of People vs. Dayag (98 SCRA 851), the Supreme Court held that as the victim was killed after the accused had wrested the gun from the former, since there was no more aggression to stop or repel as the victim was shot and killed when he was already unarmed and defenseless, self-defense cannot be invoked.

1981

1) A and B, both civilian guards, were seated inside the guardhouse. While A was cleaning his service pistol, B snatched it. In the ensuing struggle for the possession of the weapon, A succeeded in wresting it from the hand of B. But then, the pistol exploded with the bullet hitting the breast of C, another civilian guard, who died as a consequence of the gunshot wound. Is A criminally liable for the death of C? [Q# 1]

Suggested Answer:

A is not criminally liable. Since his service pistol was snatched by B, in trying to regain its possession, A was in the lawful exercise of a right. When A succeeded in wresting the pistol from the hand of B and it exploded with the bullet hitting C, A cannot incur any criminal liability, as he was performing a lawful act. Even under the Civil Code, he is justified to employ reasonable force to repel the unlawful deprivation of his property (Art. 429, Civil Code). Criminal intent is not present

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nor is there negligence under the circumstances. The death of C was, thereof accidental (People vs. Bindoy, 56 Phil. 15).

2) A is the wife of B, but she and X, her former boyfriend, were having an illicit relation. One afternoon, B unnoticed by A, followed his wife to a motel, and saw her enter a room and close the door. After the lapse of some minutes, B managed to get in and found A and X lying together in bed. With his knife, B lunged at X but the latter parried the thrust and was able to wrest the weapon from B and stabbed the latter to death. Prosecuted for homicide, X invoked the justifying circumstance of self-defense in killing B. would you uphold the defense? [Q# 3]

Suggested Answer:

X cannot invoke the justifying circumstance of self-defense. An essential requisite of self-defense is unlawful aggression. The act of B in assaulting X when he found him and A, B’s wife, lying together in bed in a room of the motel is natural and lawful, as it was made by B, the deceived and offended husband in order to defend his honor and rights. X should have known that having illicit relations with A, a married woman, X being her former boyfriend, he was performing an unlawful and criminal act that would expose him to vengeance of the offended husband. The act of B in assaulting X under the circumstances cannot constitute unlawful aggression (US vs. Merced, 39 Phil. 198). Furthermore, in view of his illicit relations with A, and the situation in which B found them lying together in bed, would constitute sufficient provocation to B for him to attack X. The third requisite of self-defense which is lack of sufficient provocation on the part of the person defending himself is, therefore, also absent.

3) H and W are husband and wife living in an apartment within the University belt. They took in S, a male student-townmate, as a boarder. Before long, W and S fell in love with each other, until one day, H caught them in bed. If you were the Investigating Fiscal to whom H complained, what aggravating circumstance or circumstances would you allege in your information for adultery against W and S? [Q# 5]

Suggested Answer:

I would allege as an aggravating circumstance that the crime was committed with abuse of confidence. Evidently, S was taken in as a boarder by the spouses H and W because he was their townmate. Such engendered trust and confidence in the relationship of the spouses with S. By committing adultery with W, abuse of confidence was made by S in the commission of the crime, since he took advantage of the favorable position in which he was placed by the injured party as boarder in their house (US vs. Barbicho, 12 Phil. 616).

Dwelling cannot be alleged as an aggravating circumstance because the wife and the paramour were living in the same house where they had a right to be (US vs. Distrito, 23 Phil. 23).

1980

1) D and E intended to steal 2 bags of cement from a bodega. They placed the cement in a jeep and left with their loot. After traveling some distance, they changed their minds and decided to take the 2 bags of cement back. While in the compound of the bodega, they were apprehended by a police officer. Are A and E liable for any crime? [Q# II]

Suggested Answer:

D and E are liable for consummated theft. When they placed the 2 bags of cement in a jeep and left with their loot, they had already performed all the acts of execution necessary for the accomplishment of the crime or theft (US vs. Adiao, 38 Phil. 754). Theft was already consummated when after traveling a certain distance, they changed their minds and decided to take the 2 bags of cement back. In theft, the offender must have the possession and dominion of

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the thing taken, coupled with the intention, at the time of taking, of withholding it with the character of permanency (People vs. Solis, 12 CA Rep. 202).

2) F and G quarreled. F attacked G with a club 2 or 3 times, but G was able to parry the attack. G did not move backwards but struck back, hitting F on his head with a lead pipe, which he picked up from the ground, causing F’s death. G was charged with Homicide. If you were the Judge, would you find G guilty as charged? [Q# III]

Suggested Answer:

If the term “quarreled” implies an agreement to a fight, G would be guilty of the crime charged. He cannot invoke self-defense because if there is an agreement to fight, there would be no unlawful aggression. Any attack is considered as a mere consequence of the agreement to fight.

On the other hand, if the word “quarreled” involves only a verbal altercation, G would not be guilty because F committed unlawful aggression when he attacked G 3 times with a club. When G struck back, hitting F on his forehead with a lead pipe which he picked up on the ground, he acted in self-defense because the aggression of F was still present and the pipe was the only means available to him in defending his person, as he was acting under the instinct of self-preservation. The assumption is that G did not give any sufficient provocation which immediately preceded the attack made by F.

1979

1) X is charged with [1] assaulting a policeman, and [2] serious physical injury thru reckless imprudence. The prosecution evidence shows that X, while driving his car, ran through a red light, hit a bystander along a street curve that caused his hospitalization for more than 30 days, and when arrested by a policeman, assaulted the arresting officer. The defense evidence shows that 3 days before the incident, X saw a doctor for treatment of a recurring back problem. He was prescribed valium. X declared that on the day of the incident, the valium had strange effects on him and that he completely lost control of himself. A medical expert testified that drowsiness, fatigue, ataxia, and confusion are the normal side effects of valium. He added that hyperexcitability, though rare, was a possible side effect. If you were the judge, how would you decide the case? [Q# IV]

Suggested Answer:

I would hold X criminally liable. Loss of control of X as a result of the administration of the valium is not an exempting circumstances since there is no deprivation of freedom of action or of intelligence. At most, X would be entitled to a mitigating circumstance analogous to passion or illness, since there is loss of self-control and reason (Art. 13, par. 10, RPC)

2) X, engaged in illegal gambling, was accused of bribing Y, a policeman. X’s defense was fear of reprisal from the police in case of non-payment of bribe money. He testified that when he attempted to stop giving bribe money to Y, the police raided his establishment without warrant for half a dozen times. Y also threatened to plant incriminating evidence on him. X was also manhandled by Y on the pretext of resisting arrest. X would park his police jeep in front of his house obviously to drive away his regular customers. X’s defense is that he bribed Y under the impulse of an uncontrollable fear of an equal or greater injury. Please decide. [Q# V]

Suggested Answer:

X’s defense that he bribed Y, a policeman, under the impulse of an uncontrollable fear of an equal or greater injury is untenable. This exempting circumstance can be appreciated if a person is compelled to commit a crime by another through intimidation. It is also essential that the person intimidated must not have any opportunity for escape or to avoid the threat. The facts of the

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problem show that X could have easily reported to the authorities the alleged acts of harassment committed by the policeman. Lastly, the fear must not be speculative or fanciful but must be actual or direct intimidation on the part of Y in case of non-payment of the bribe.

3) X, a private citizen, saw 2 masked men break into a drug store across his home. He telephoned the police to come. Without waiting for the police, he went outside the house with a pistol and tried to intercept the thieves. He told them to stop but they did not. He fire several shots at them, wounded them and caused their hospitalization for 20 days. May the thieves file any criminal case against X? [Q# VI]

Suggested Answer:

The thieves can file a criminal action against X. In defense of the person or property of a stranger, the elements of [1] unlawful aggression; [2] reasonable necessity of the means employed to prevent or repel it; and [3] that the person defending himself must not be induced by revenge, resentment, or any other evil motive, must be present. In self-defense of property, the doctrine is that the attack on the property must be coupled with an attack upon the person of the possessor of the property (People vs. Apolinar, CA 38 OG 2870). The same rule should apply to defense of property of a stranger since the first 2 elements of defense of a stranger are also the first 2 elements of self-defense, which are unlawful aggression and reasonable necessity of the means employed to prevent or to repel it. The means employed by X in firing several shots at the thieves was not reasonable as there was no attack upon the person of the owner of the drugstore or of any person present therein. Nor can there be defense of the person of a stranger since unlawful aggression is absent.

4) X was slapped by Z in front of many people. X went to his house, got a knife and waited for Z, who was gambling in the upper floor of a house. When Z came down the house, X approached him from behind to stab him. Somebody shouted to warn Z and Z was able to turn around on time to parry the stab of X. The 2 fought each other until Z, while in the process of retreating, fell in a canal, face upward. X then mounted him and succeeded in stabbing Z fatally. Is there treachery? [Q# XI]

Suggested Answer:

Treachery is not present. While it is true that X approached Z from behind to stab him, Z, however was not deprived of any opportunity to defend himself because of the warning from somebody and as a matter of fact, because of it he was able to turn around in time to parry the stab of X. He was not deprived of an opportunity to defend himself. The stabbing of the victim by X who mounted him when he fell in a canal face upward as a result of the fight which followed when the victim was able to parry the stab of X, does not constitute treachery since it was a mere continuation of the fight. It was spontaneous and a mere incident of the fight.

5) X and Y had a heated altercation and then exchanged blows. X pulled out a knife and stabbed Y in the abdomen. Y ran away but before he could reach his house was struck by lightning and died. The fiscal filed a case for homicide against X. Decide. [Q# 15]

Suggested Answer:

X is not liable for homicide but for the crime constituting the stabbing of Y in the abdomen. Since the injury was mortal, the liability of X is for frustrated homicide. The death of the victim was caused by lightning which struck him. Although a felony was committed by X, such was not the direct and proximate cause of the death of Y. The lightning was an efficient intervening cause.

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1978

1) Discuss concisely the cardinal features or principles of criminal law. Give an exception to each principle and explain the same. [Q# I-a]

Suggested Answer:

The cardinal principles of criminal law are generality territoriality, and prospectivity. Generality means that a penal law applies to all persons who live or sojourn in Philippine territory, subject to the principles of public international law and treaty stipulations. A penal law does not therefore apply to duly accredited foreign ambassadors and ministers in the Philippines since under international law they enjoy diplomatic immunity. Territoriality means that a penal law is enforceable within the territory of the Philippines. However, under Art. 2 of the RPC, its provisions shall be enforced outside of the jurisdiction of the Philippines against those, among others, who should commit an offense while on a Philippine ship or airship. The exception will apply if the Philippine ship or airship is registered under the laws of the Philippines. The registered Philippine ship at the time of the commission of the crime must be in the air space not within the jurisdiction of a foreign country. Prospectivity means that a penal law does not have any retroactive effect; otherwise, it will become an ex post facto law. However, if a penal law is favorable to the accused, it may be given retroactive effect, unless the accused is a habitual delinquent or the law otherwise expressly provides/

2) Penal laws define distinct classes of crime. Discuss and elucidate on their distinctions. [Q# I-b]

Suggested Answer:

In general, penal laws refer to the RPC and special laws. Crimes punished in the RPC are called felonies and those punished in special laws are called offenses. A felony, as a rule, is an act mala in se, which is wrongful from its very nature, while an offense is an act mala prohibita, which is wrong only because of the law punishing it. The RPC also classifies felonies as intentional, if dolo or malice is present, and culpable, if there is culpa or fault. According to gravity, felonies are grave, if the penalty is capital or afflictive in any of its periods; less grave, if the penalty in its maximum period is correctional; and light, if the penalty is arresto menor or a fine not exceeding P200,000 or both.

3) Discuss the distinctions between dolo and culpa. Give an example of each. [Q# I-c]

Suggested Answer:

Dolo implies deliberate intent. It is equivalent to malice. Culpa means fault, that is, there is no intent or malice. The wrongful act is the result of imprudence, negligence, lack of skill, or lack of foresight. A felony is committed by means of dolo or culpa and must be voluntary.

4) Is malice or criminal intent an essential requisite of all crimes? May criminal intent be presumed to exist? [Q# I-d]

Suggested Answer:

Malice or criminal intent is not an essential element in all crimes. It is essential only in crimes which are mala in se. In an offense which is mala prohibita, criminal intent is not an element. Criminal intent is presumed to exist if the act is unlawful. However, in some crimes, a specific intent cannot be presumed because it is an integral element thereof. For example, in frustrated homicide, the specific intent to kill is not presumed. If it is not proved, the crime will not be frustrated homicide but serious physical injuries.

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5) Is motive indicative of criminal intent? Is lack of motive proof of innocence? When is it necessary to prove motive? [Q# II-a]

Suggested Answer:

Motive may be indicative of criminal intent. The fact that the accused were losing heavily in their business operations indicated the motive and therefore the intent to commit arson for the purpose of collecting the insurance on their stock of merchandise (US vs. Go Foo Suy, 25 Phil. 125). However, it is not sufficient to support a conviction if there is no reliable evidence from which it may be deduced that the accused was the malefactor (People vs. Marcos, 70 Phil. 468). Lack of motive is not necessarily proof of innocence because motive is not an essential element of the crime. A crime may be committed just for the sake of committing it due for example to the extreme moral perversion of the accused (People vs. Taneo, 58 Phil. 255). It is necessary to prove motive when the identity of the person accused of committing the crime is in dispute (People vs. del Rosario, 105 Phil 591), or when there are no eyewitnesses to the crime and where suspicion is likely to fall upon a number of persons (People vs. Mario, CA July 21, 1949).

6) Justifying and exempting circumstances have some similar effects but are different concepts. Discuss their similarities and distinctions. [Q# II-b]

Suggested Answer:

In justifying circumstance, the act committed is lawful and the actor does not incur any criminal nor civil liability. In an exempting circumstance, a crime is committed but there is absent in the person of the offender any of the elements of voluntariness, and so he is not criminally liable but is civilly liable except in the exempting circumstance of accident and lawful or insuperable cause.

7) Distinguish entrapment from instigation. Give an example of each. Do they constitute defenses to criminal prosecutions? [Q# II-d]

Suggested Answer:

In instigation, the instigator practically induces an innocent person who is the would-be accused into the commission of the crime and himself becomes a principal. In entrapment, ways and means are resorted to for the purpose of trapping and arresting the law-breaker in the execution of his criminal plan.

Example of Instigation—A policeman, representing himself to be a private person engaged in gambling, approached the accused and induced him to look for a place where they could smoke opium. The policeman saw the accused 3 times to convince him of his desire to smoke opium. Because of his insistence, the accused after some efforts, was able to look for such a place, where both of them went. The policeman received from the owner of the place the opium pipe to be used by him and the accused. After a while, upon some pretext, the policeman left the place, then returned, and arrested the accused for smoking opium. The accused cannot be criminally held liable as he was instigated to commit the crime (US vs. Phelps, 16 Phil. 440).

Example of Entrapment—The accused had a shipment of opium to be landed in Cebu which he imported from Hong Kong. He informed the Chief of the Customs Secret Service in Cebu about the shipment, who pretended to remove all difficulties for the landing of the contraband. When the accused started landing the opium, he was arrested by Customs authorities. The accused is criminally liable. When the Secret Service Chief pretended to smooth the way for he landing of the opium, the accused had already made the importation of the opium, which is an indictable offense. He was not induced to import the said opium. What the Secret Service Chief did was merely to resort to a means to facilitate the arrest of the accused.

Instigation is exempting because it is against public policy. The crime would not have been committed were it not for the instigation. On the other hand, entrapment is not an absolutory cause and is not a bar to the prosecution and conviction of the offender. In entrapment, a crime

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has already been committed, and ways and means are merely resorted to trap and arrest the offender.

8) A wealthy 65-year old landed proprietor (haciendero) with failing eyesight and defective hearing who has been a tubercular patient for the last 10 years, was robbed and killed in cold blood while asleep. A was found guilty as principal, B and C as his accomplices. In passing sentence, the judge considered abuse of superior strength as aggravating circumstance correctly appreciated against the three. Explain. [Q# III-b]

Suggested Answer:

There is no abuse of superior strength since a participated in the commission of the crime as principal and B and C as accomplices. This is inconsistent, since the offenders did not take advantage of their combined strength in the commission of the crime (People vs. Cortes, 55 Phil. 143).

9) B repeatedly stabbed A with a kitchen knife. A managed to escape with minor injuries, and to run away from B who continued to pursue him. A, upon reaching the safety of his house, took a scythe with which to defend himself against B. Thus armed, A went out of his house and dared B to come forward and fight. In the ensuing struggle, A killed B. Charged with homicide, A claimed self-defense. Is A entitled to the justifying circumstance? Decide and give your reasons. [Q# IV-b]

Suggested Answer:

A is not entitled to the justifying circumstance of self-defense. There is no unlawful aggression on the part of the victim B. There are 2 stages in the fight. The first stage was when B stabbed A repeatedly with a knife, who managed however to escape and run away, pursued by B. When A reached the safety of his house, he was already safe from the unlawful aggression of B and so such was deemed to have ceased. When A took a scythe inside his house and while thus armed he went out of his house and dared B to come forward and fight, he became therefore the challenger. From the facts, a struggle ensued, which implies that the challenge of A was accepted by B, which is an agreement to fight and hence, there can be no unlawful aggression (People vs. Astilla, CA-GR No. 4391)

10) A, not being used to liquor, became drunk at a party. When he reached home, with the help of his friends and C, his wife W berated him so harshly, and a violent quarrel ensued. He squeezed her neck, banged her head against the wall and kicked her repeatedly in the stomach. The next day, W vomited profusely and died thereafter. Cause of death was established to be hemorrhage caused by A’s assault upon his wife. A did not have the intention to kill his wife and alleged intoxication as an exempting circumstance. Decide with reasons. [Q# VII-b]

Suggested Answer:

The intoxication was not habitual as A was not used to liquor. He only became drunk during a party and so the intoxication was not subsequent to the plan to commit the crime. It is not exempting but an alternative mitigating circumstance. Since the intoxication involves loss of reason and self-control, A could not have any intention to kill his wife. A is liable for parricide. The mitigating circumstances of intoxication and lack of intent to commit so grave a wrong as that which resulted cannot, however, be appreciated in his favor to lower the penalty by one degree because the penalty for parricide consists of 2 single and indivisible penalties which are reclusion perpetua to death (People vs. Monleon, 74 SCRA 263)

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1977

1) When A saw B rushing towards him holding a bolo and poised to strike him, he immediately picked up a pointed iron bar and believing that his life was in danger as B was close enough, he made trust on B, hitting him on the stomach, which caused the death of B thereafter. The truth, however, is that B was merely trying to play a joke on C who was then behind A. Is A criminally liable for the death of B? [Q# I-a]

Suggested Answer:

A is not criminally liable because he acted in self-defense due to mistake of facts. As the facts of the problem state, A thrust the pointed iron bar on B, hitting him on the stomach as he believed that his life was in danger because B was close enough when he rushed towards A holding a bolo and poised to strike him (US vs. Ah Chong, 15 Phil. 488). Under the circumstances, he had no time or opportunity to verify whether B was only playing a joke on C who was behind A. Hence, his mistake of the facts was without fault or carelessness. He had no alternative but to take the facts as they appeared to him to justify his act. So A acted in good faith without criminal intent.

2) Acting under the impulse of hunger, Jose tried to steal the P2-bill in the breast pocked of a stranger. But before he could get the money, he was seen and eventually apprehended by a policeman. Later on, Jose was charged of the light offense of attempted theft for P2.00. Was Jose correctly charged considering that light offenses are punishable only when consummated? [Q# I-b]

Suggested Answer:

Jose was correctly charged for a light felony of attempted theft of P2.00 because theft is a crime against property and is punishable even though it is not consummated (Art. 7, RPC).

1976

1) At about midnight, A, the accused, attacked fatally an unarmed, 4 feet, 11 inches girl with a hunting knife while she was alone in her room. What aggravating circumstance or circumstances were present in the commission of the crime? [Q# I-a]

Suggested Answer:

Abuse of superior strength and dwelling. There is abuse of superior strength because the girl was defenseless since she was unarmed and A was armed with a hunting knife, which is a deadly weapon. The abuse of superiority of A lies in his sex and the weapon he used, from which the woman would be unable to defend herself (US vs. Consuelo, 13 Phil. 612). Dwelling is also an aggravating circumstance because the girl was attacked in her room. The facts of the problem do not show that she has given any provocation (People vs. Pakah, 81 Phil. 426).

2) X and Y run amuck on board a train and killed 10 persons. Four persons, out of fear, jumped out of the train, while the same was running, and died. Are X and Y liable for the deaths of the 4 persons who jumped out of the train? [Q# VII-a]

Suggested Answer:

X and Y are also liable for the deaths of the 4 persons who jumped out of the train. By running amuck on board the train and killing 10 persons, the acts committed by X and Y are felonious and they are responsible for the direct, natural and logical consequences thereof (Art. 4, par. 1, RPC). These acts of X and Y created fear in the minds of those 4 persons which caused them to jump out of the running train, which resulted in their deaths. The rule is that if a man

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created in another man’s mind an immediate sense of danger which cause such person to try to escape and in so doing injures himself, the person who creates such state of mind is responsible for the injuries which result (People vs. Toling, 62 SCRA 17; People vs. Arpa, 27 SCRA 1037; US vs. Valdez, 41 Phil. 1497).

3) X, a domestic servant of Y has been nurturing a grudge against him for long. One day, while Y was seated on his favorite rocking chair, X suddenly fired a volley of shots towards Y. It turned out, however, that Y has been dead from a severe stroke an hour ago. For what crime can X be held liable? [Q# IX-a]

Suggested Answer:

X is liable for an impossible crime of murder. The reason is the inherent impossibility of killing Y since he has been dead due to a severe stroke 1 hour before X shot him. The acts of execution would have been a crime against persons were it not for the inherent impossibility of its accomplishment (Art. 4, par. 1, RPC). Subjectively, X is a criminal although objectively, no crime is committed. X cannot be liable for trespass to dwelling because being a domestic servant, his entrance to the house of Y cannot be against the will of the latter.

1975

1) The American Consul accredited to the Philippines, while driving his car recklessly and imprudently along Roxas Boulevard, bumped a pedestrian who was crossing the street and the latter died as a consequence of his injuries. Prosecuted in court for the crime of homicide thru reckless imprudence, the Court claimed diplomatic immunity, alleging that he is not subject to Philippine laws and regulations. Is his defense tenable? [Q# III]

Suggested Answer:

Under the principle of international law, only sovereign or heads of states, ambassadors, ministers plenipotentiary and ministers resident enjoy diplomatic immunity. Consuls do not enjoy immunity from criminal prosecution (RA 75; Schenecherberger vs. Moran, 63 Phil. 250).

2) The accused ran amuck aboard a moving train and killed 8 persons. Terrified by the happening, 4 passengers jumped out of the train and died as a result of their fall. Can the accused be held liable for the death of the 4 although he did not even know that they jumped? [Q# IV]

Suggested Answer:

The accused can be held liable. Because by running amuck aboard the train and killing 8 persons, he committed acts which are felonious. The death of the 4 passengers who jumped out of the train because they were terrified by the happening is the direct, natural and logical consequence of the running amuck of the accused (Art. 4, par. 1, RPC; People vs. Arpa, 27 SCRA 1037).

� Michael D. Maestrado