judge p transis

7/23/2019 Judge P transis

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UPDATEDSPECIAL PENAL LAWS

By:

JUDGE OSCAR B. PIMENTELRegional Trial Cour! Bran"# $%&!

Ma'ai Ciy

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

W(EN AN ACCUSED IS SENTENCED TO RECLUSION PERPETUA! (EIS NOT ENTITLED TO T(E APPLICATION O) T(E INDETERMINATESENTENCE LAW

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

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

APPLICATION O) INDETERMINATESENTENCE LAW E*PLAINED

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

/0nder the Indeterminate Sentence Law the ma1imum termof the penalty shall be 2that which in view of the attendin3circumstances could be properly imposed2 under the !evised Penalode and the minimum shall be within the ran3e of the penalty ne1tlower to that prescribed2 for the offense. 4he penalty ne1t lowershould be based on the penalty prescribed by the ode for theoffense without first considerin3 any modifyin3 circumstanceattendant to the commission of the crime. 4he determination of the

minimum penalty is left by law to the sound discretion of the courtand it can be anywhere within the ran3e of the penalty ne1t lowerwithout any reference to the periods into which it mi3ht besubdivided. 4he modifyin3 circumstances are considered only in theimposition of the ma1imum term of the indeterminate sentence.

/4he fact that the amounts involved in the instant casee1ceed P##&&&.&& should not be considered in the initialdetermination of the indeterminate penalty; instead the matter

should be so ta5en as analo3ous to modifyin3 circumstances in theimposition of the ma1imum term of the full indeterminate sentence.4his interpretation of the law accords with the rule that penal lawsshould be construed in favor of the accused. Since the penaltyprescribed by law for the estafa char3e a3ainst accused-appellant is

prision correccionalma1imum toprision mayorminimum the penaltyne1t lower would then be prision correccionalminimum to medium.4hus the minimum term of the indeterminate sentence should beanywhere within si1 (', months and one (", day to four (6, years andtwo (#, months . . ./

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

INDETERMINATE SENTENCE LAW+APPLICABLE ALSO IN DRUG CASES:

4he final query is whether or not the Indeterminate Sentence Law isapplicable to the case now before us. Apparently it does since dru3 offensesare not included in nor has appellant committed any act which would put himwithin the e1ceptions to said law and the penalty to be imposed does notinvolve reclusion perpetuaor death provided of course that the penalty asultimately resolved will e1ceed one year of imprisonment. 4he moreimportant aspect however is how the indeterminate sentence shall beascertained. It is true that Section " of said law after providin3 forindeterminate sentence for an offense under the !evised Penal ode statesthat /if the offense is punished by any other law the court shall sentence theaccused to an indeterminate sentence the ma1imum term of which shall note1ceed the ma1imum fi1ed by said law and the minimum shall not be lessthan the minimum term prescribed by the same/ 8e hold that this quotedportion of the section indubitably refers to an offense under a special lawwherein the penalty imposed was not ta5en from and is without reference tothe !evised Penal ode as discussed in the precedin3 illustrations suchthat it may be said that the /offense is punished/ under that law. 4here canbe no sensible debate that the aforequoted rule on indeterminate sentencefor offenses under special laws was necessary because of the nature of theformer type of penalties under said laws which were not included orcontemplated in the scale of penalties in Article 7" of the ode hence therecould be no minimum /within the ran3e of the penalty ne1t lower to thatprescribed by the ode for the offense/ as is the rule for felonies therein. Inthe illustrative e1amples of penalties in special laws hereinbefore providedthis rule applied and would still apply only to the first and last e1amples.9urthermore considerin3 the vinta3e of Act :o. 6"& as earlier noted thisholdin3 is but an application and is


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fact for purposes of determinin3the ma1imum of said sentencewe have applied the provisions ofthe amended Section #& of saidlaw to arrive at prisioncorreccional and Article '6 of theode to impose the same in the

medium period. Such offensealthou3h provided for in a speciallaw is now in the effect punishedby and under the !evised Penalode.

(People v

=artinSimon,

W(EN T(E BENE)ITS O)INDETERMINATE SENTENCELAW IS NOT APPLICABLE+

a. >ffensespunished bydeath or lifeimprisonment.

b. 4hose convictedof treason (Art.""6, conspiracyor proposal tocommit treason(Art. ""$,.

c. 4hose convictedof misprision of

treason (Art.""', rebellion(Art. "6,sedition (Art."%, or espiona3e (Art.""7,.

d. 4hose convictedof piracy (Art. "##,.e. ?abitualdelinquents (Art. '# par.$,.f. 4hose who

escaped fromconfinement orthose whoevaded sentence.

3. 4hose 3rantedconditionalpardon and whoviolated the termsof the same (Art."$%,. (People v.Corral 76 Phil.$%,.

h. 4hose whose

ma1imum periodof imprisonment

does note1ceed one year.

i. 4hose who arealready servin3final


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of rape and the accused did notappeal does the


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(People -vs- Priscilla @alasa !:o.

"&'$7 September "%%+,

ACCUSED W(O ISSENTENCED TO RECLUSIONPERPETUA IS STILL ENTITLED

TO EIT(ER )ULL OR / O) (ISPRE,ENTI,E IMPRISONMENT

If durin3 the trial theaccused was detained but aftertrial he was meted the penalty ofreclusion perpetua he is stillentitled to the full credit of hispreventive imprisonment becauseArticle #% of the !evised Penalode does not distin3uishbetween divisible and indivisiblepenalties.

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

0UALI)IED T(E)T

0UALI)IED T(E)T ISPENALI1ED B- RECLUSIONPERPETUA I) AMOUNTIN,OL,ED IS O,ER P22!333.33

0nder Article &% of the

!evised Penal ode thema1imum of the penalty forqualified theft is prision mayor toreclusion temporal. ?oweverunder Article "& of the !evisedPenal ode the penalty for thecrime shall be two (#, de3reeshi3her than the specified in Article&% of the ode. 0nder Article 76of the !evised Penal ode thepenalty hi3her by one de3reethan another 3iven penalty and ifsuch hi3her penalty is death the

penalty shall be reclusionperpetuaof forty (6&, years withthe accessory penalties of deathunder Article 6& of the !evisedPenal ode. 4he accused shallnot be entitled to pardon beforethe lapse of forty (6&, years.

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

THE PROBATION A! (P.". #$%)

and &ts A'EN"'ENT

PROBATION! ITS MEANING:

A disposition under which a

defendant after conviction andsentence is sub


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PENDING RESOLUTION O)PETITION!W(AT ARE T(E PRI,ILEDGET(AT MA-BE GI,EN TO T(EACCUSEDPETITIONER4

". if the accused prior to the

promul3ation of decision ofconviction is out on bail he maybe allowed on temporary libertyunder his bail filed in said case;

#. if he is under detention uponmotion he may be allowedtemporary liberty if he cannotpost a bond on a reco3niBance ofa responsible member of acommunity who shall 3uaranteehis appearance wheneverrequired by the court.

IN CASE T(E APPLICANT )ORPROBATION CANNOT BEPRODUCED B- T(ECUSTODIAN ONRECOGNI1ANCE! W(AT(APPENS4

4he custodian must beas5ed to e1plain why he shouldnot be cited for contempt forfailin3 to produce the probationerwhen required by the court;Summary hearin3 will be held for

indirect contempt and if custodian cannot produce thepetitioner nor to e1plain hisfailure to produce the petitionerthe custodian on reco3niBanceshall be held in contempt of court.

W(AT IS A POST SENTENCEIN,ESTIGATION REPORT4

It is a report of the Paroleand Probation >fficer afterconductin3 post sentenceinvesti3ation and interviewscontainin3 the circumstancessurroundin3 the offense for whichthe petitioner was convicted. 4hefindin3s should be drawn from thecourt records police recordsstatement of defendants thea33rieved party and otherpersons who may 5now the

petitioner and all other mattersmaterial to the petition.

It will also include thepsycholo3ical and socialinformation re3ardin3 theprobationer; evaluation of thepetitioner; suitability for probation;his potential for rehabilitation; andmay include the pro3ram for

supervision and su33ested termsof conditions of probation and arecommendation either to deny or3rant the probation.

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

a. 4o present himself to theprobation officer concerned forsupervision within 7# hours fromreceipt of said order and

b. to report to the probationofficer at least once a monthdurin3 the period of probation.

W(AT ARE T(E OT(ERCONDITIONS O) PROBATION4

cooperate with a pro3ram ofsupervision;meet his family responsibilities;devote himself to a specificemployment and not to char3esaid employment without prior

written approval of the probationofficer;comply with a pro3ram ofpayment of civil liability to thevictim of his heirs;under3o medical psycholo3icalor psychiatric e1amination andtreatment andEor enter andremain in a specific institutionwhen required for that purposes;pursue a prescribed secular studyor vocational trainin3;attend or reside in a facility

established for instruction orrecreation of persons onprobation;refrain from visitin3 houses of ill-repute;abstain from drin5in3 into1icatin3bevera3es to e1cess;permit the probation officer or anauthoriBed social wor5er to visithis home and place of wor5;reside at premises approved bythe court and not to chan3e hisresidence wEo prior written

approval; andsatisfy any other condition relatedto the rehabilitation of the

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probationer and not undulyrestrictive of his liberty orincompatible with his freedom ofconscience.m. plant trees ( see circular of theS ,

RULES ON OUTSIDE TRA,ELO) PROBATIONER

A probationer whodesires to travel outside theLA4I>: >9>:9IG:4IAL :A40!G >9P!>@A4I>: !G>!S. 4hepenalty of imprisonment ran3in3from si1 months and one day tosi1 years and a fine ran3in3 fromhundred to si1 thousand pesosshall be imposed upon anyperson who violates Section "7hereof.

MODI)ICATION O) CONDITIONOR PERIOD O) PROBATION

4he court on motion ormotu propio may modify theconditions of probation or modifythe period of probation ascircumstances may warrant.

W(O ARE DIS0UALI)IEDTO UNDERGO PROBATION

4hose sentenced to serve ama1imum term of imprisonment

of more than si1 years.4hose convicted of any offensea3ainst the security of the state;4hose who have been previouslyconvicted by final


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PERIOD O) PROBATION

If the probationer has beensentenced to an imprisonment ofnot more than one year theprobation shall not e1ceed twoyears;

In all other cases not to e1ceedsi1 years;In case the penalty is fine theprobation shall not be less thanthe period of subsidiaryimprisonment nor more than twiceof the subsidiary imprisonment.

AMENDMENT TO SECTION %O) PD 56&D

/Sec. 6. rant of Probation. -Sub


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the offense as measured by thepenalty imposed more than by itsnature as the law so ordains theoffender is not such a seriousmenace to society as to bewrested away therefrom as themore dan3erous type of criminals

should be. ?ence in the case atbar the first reason 3iven by therespondent


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principally the 3ravity of theoffense committed and theconcomitant de3ree of penaltyimposed. 4hose sentenced to ama1imum term not e1ceedin3 si1(', years are not 3enerallyconsidered callous hard core

criminals and thus may avail ofprobation

,IOLATION O) RA 6%2?!A ,ALID CAUSE )ORDISMISSALIN SER,ICE IN T(EGO,ERNMENTDESPITE PROBATION

ru3-pushin3 as a crimehas been variously condemned

as /an especially vicious crime//one of the most pernicious evilsthat has ever crept into oursociety./ 9or those who becomeaddicted to it /not only slide intothe ran5s of the livin3 dead whatis worse they become a 3ravemenace to the safety of law-abidin3 members of society/while /peddlers of dru3s areactually a3ents of destruction.4he deserve no less than thema1imum penalty of deathJ./

4here is no doubt thatdru3-pushin3 is a crime whichinvolves moral turpitude andimplies /every thin3 which is donecontrary to :G! =AH S4ILLGK?>!4 >99G:G!4> PG!9>!= G!4AI: A4S

GSPI4GIS?A!G 9!>=P!>@A4I>: I:G!4AI: ASGS

Petitioner Arthur =. uevas )r.2sdischar3e from probation withoutany infraction of the attendantconditions therefor and thevarious certifications attestin3 tohis ri3hteous peaceful and civic-oriented character prove that hehas ta5en decisive steps to pur3e

himself of his deficiency in moralcharacter and atone for theunfortunate death of !aul I.amali3an. 4he ourt is preparedto 3ive him the benefit of thedoubt ta5in3


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reproach at all times and to livestrictly accordin3 to his oath andthe ode of Professional!esponsibility. And toparaphrase =r. )ustice Padilla2scomment in the sister case of !eDPetition of Al Ar3osino 4o 4a5e

4he Lawyer2s >ath @ar =atter:o. 7"# =arch "% "%%7 /tJheourt sincerely hopes that/ =r.uevas )r. /will continue with theassistance he has been 3ivin3 tohis community. As a lawyer he willnow be in a better position torender le3al and other services tothe more unfortunate members ofsociety/. (In !eD uevas )r.;"E#7E%+,

GKPI!A4I>: >9 PG!I> >9P!>@A4I>: IS :>44G!=I:A4I>: >!G! >9>0!4 !G0I!G

4he mere e1piration of the periodfor probation does not ipso factoterminate the probation.Probation is not co-terminus withits period there must be an orderfrom the ourt of final dischar3eterminatin3 the probation. If theaccused violates the condition of

the probation before the issuanceof said order the probation maybe revo5ed by the ourt (=anuel@ala v. =artineB "+" S!A6$%,.

A:4I-9G:I: LA8O) $5@5 PD NO. $6$2

DE)INITION

)en"ing a7 e;ine inSe". 2 o; PD No. $6$2 Ani)en"ing La9 i7 #e a" o; any8er7on 9#o! 9i# inen o gain;or #i>7el; or ;or ano#er! 7#all


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and sellin3 the stolen items. If thefence is a corporationpartnership association or firmthe one liable is the president orthe mana3er or the officer who5nows or should have 5now thefact that the offense was

committed.

4he law provide forpenalty ran3e for personsconvicted of the crime of fencin3.4heir penalty depends on thevalue of the 3oods or items stolenor bou3htD

a. 4he penalty of prisionmayor if the value of theproperty involved is morethan "#&&& pesos but

not e1ceedin3 ##&&&pesos; if the value ofsuch property e1ceedsthe latter sum thepenalty provided in thispara3raph shall beimposed in its ma1imumperiod addin3 one yearfor each additional"&&&& pesos; but thetotal penalty which maybe imposed shall note1ceed twenty years. In

such cases the penaltyshall be termed reclusiontemporal and theaccessory penaltypertainin3 theretoprovided in the !evisedPenal ode shall also beimposed.

b. 4he penalty of prisioncorreccional in itsmedium and

ma1imumperiods if thevalue of theproperty robbedor stolen is morethan '&&& pesosbut not e1ceedin3"# &&& pesos;

c. 4he penalty of prisioncorreccional in itsminimum and

medium periodsif the value of theproperty involved

is more than #&&pesos but note1ceedin3 '&&&pesos;

d. 4he penalty of arresto mayor in

its medium periodto prisioncorreccionalin itsminimum periodif the value of theproperty involvedis over $& but note1ceedin3 #&&pesos;

e. 4he penalty of arresto mayor inits medium period

if such value isover five ($,pesos but note1ceedin3 $&pesos.

f. 4he penalty of arresto mayor inits minimumperiod if suchvalue does note1ceed $ pesos.

RULES REGARDING BU- ANDSELL O) GOODSPARTICULARL- SECOND(AND GOODS

4he law requires theestablishment en3a3ed in thebuy and sell of 3oods toobtain a clearance or permitto sell /used second handitems/ to 3ive effect to thepurpose of the law in puttin3an end to buyin3 and sellin3

stolen items. 9ailure of whichma5es the owner or mana3erliable as a fence.

DE)INITION O) TERMS

4he Implementin3 !ulesprovides for the 3uidelines ofissuance of clearances or permitsto sell used or secondhand itemsand it provided for the definition ofthe followin3 termsD

". /0sedsecondhandarticle/ shall

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refer to any3oodsarticle itemsob


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used secondhandarticles to submit aninitial affidavit withinthirty (&, days fromreceipt of notice forthe purpose thereofand subsequent

affidavits once everyfifteen ("$, dayswithin five ($, daysafter the periodcovered which shallcontainD

a. complete inventory ofsuch articlesincludin3 the namesand addresses fromwhom the articleswere acquired.

b. 9ull list of articles to

be sold or offered forsale includin3 thetime and place ofsale

c. Place where thearticles are presentlydeposited.

W(AT MA-BERE0UIRED B- T(ESTATION COMMANDEROR OWNER O)SECOND(AND

STORES OR DEALERS

4he Stationommander may requirethe submission of anaffidavit accompanied byother documents showin3proof of le3itimacy ofacquisition.

#. 4hose who wish tosecure thepermitEclearance

shall file anapplication with theStation ommanderconcerned whichstatesD

a. name address andother pertinentcircumstances

b. article to be sold oroffered for sale to thepublic and the nameand address of theunlicensed dealer or

supplier from whomsuch article wasacquired.

c. Include the receipt ordocument showin3proof of le3itimacy ofacquisition.

. 4he Stationommander shalle1amine the

documents attachedto the application andmay require thepresentation of otheradditionaldocuments if necessary to showsatisfactory proof ofthe le3itimacy ofacquisition of thearticle sub


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articles in hispossession are to besold or offered forsale.

$. If after "$ days upone1piration of theperiod of publication

or of the notice noclaim is made to anyof the articlesenumerated in thenotice the Stationommander shallissue the clearanceor permit sou3ht.

'. If before e1piration ofthe same period forthe publication of thenotice or its postin3 itshall appear that any

of the articles inquestion is stolenproperty the Stationommander shallhold the article inrestraint as evidencein any appropriatecase to be filed.Articles held inrestraint shall 5eptand disposed of asthe circumstances ofeach case permit. In

any case it shall bethe duty of theStation ommanderconcerned toadviseEnotify theommission on Auditof the case andcomply with suchprocedure as may beproper under applicable e1istin3laws rules andre3ulations.

7. 4he Stationommander shallwithin seventy-two(7#, hours fromreceipt of theapplication actthereon by eitherissuin3 theclearanceEpermitrequested or denyin3the same. enial ofan application shallbe in writin3 and shall

state in brief thereasonEs thereof.

+. Any party notsatisfied with thedecision of theStation ommandermay appeal the samewithin "& days to theproper I:P (now

P:P, istrictSuperintendent andfurther to the I:P(now P:P, irector.4he decision of theirector can still beappealed top theirector-eneralwithin "& dayswhose decision maybe appealed with the=inister (nowSecretary, of :ational

efense within "$days which decisionis final.

PRIMA)ACIE E,IDENCE O))ENCING.

=ere possession of any3ood article item ob


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was bou3ht from 8ynn2s Audioan e1istin3 establishment. 4hecourt held that there is no proofthat the spouses =uere had5nowled3e of the fact that thestereo was stolen. 4he spouses=uere purchased the stereo from

a 5nown merchant and the unit isdisplayed for sale in their store.4hese actions are not indicativeof a conduct of a 3uilty person.

W(EN T(ERE IS NO PROO)T(AT T(E ACCUSED BOUG(TOR SOLD ARTICLES HNOWINGT(E SAME TO BE STOLEN.T(US T(E T(IRD ELEMENT ISNOT PRESENT.

>n the same vein the

third element did not e1ist in thecase of D.M. Consunji !nc.(onsun


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presumption of innocenceenshrined in the fundamental law.

DISTINCTION BETWEEN)ENCING AND ROBBER-.

4he law on fencin3 doesnot require the accused to haveparticipation in the criminal desi3nto commit or to have been in anywise involved in the commissionof the crime of robbery or theft.:either is the crime of robbery ortheft made to depend on an act offencin3 in order that it can beconsummated. (People v euBman ! 77'+,.

DISTINCTION BETWEEN

ROBBER- AND )ENCING

!obbery is the ta5in3 ofpersonal property belon3in3 toanother with intent to 3ain bymeans of violence a3ainst orintimidation of any person orusin3 force upon anythin3.

>n the other handfencin3 is the act of any personwho with intent to 3ain for himselfor for another shall buy receive

possess 5eep acquire concealsell or dispose of or shall buyand sell or in any other mannerdeal in any article item ob=GLG &7E&$E%',

=oral turpitude can bederived from the third element -accused 5nows or should have

5nown that the items were stolen.Participation of each felon onebein3 the robber or the thief orthe actual perpetrators and theother as the fence differs in pointin time and de3ree but bothinvaded one2s peaceful dominion

for 3ain. (Supra, @oth crimesne3ated the principle of eachperson2s duty to his fellowmen notto appropriate thin3s that they donot own or return somethin3acquired by mista5e or withmalice. 4his si3nifies moralturpitude with moral unfitness.

In the case of ela 4orrehe was declared disqualified fromrunnin3 the position of =ayor inavinti La3una in the last =ay +

"%%$ elections because of thefact of the disqualification underSec. 6& of the Local overnmentode of persons runnin3 forelective position -/Sec. 6&isqualifications - (a, 4hosesentenced by final


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4he law does not requireproof of purchase of the stolenarticles by petitioner as merepossession thereof is enou3h to3ive rise to a presumption offencin3.

It was incumbent uponpetitioner to overthrow thispresumption by sufficient andconvincin3 evidence. (aoili v.A; ! "#+'% "#E##E%7,

BATA PA'BANA B,.22

BO*N+IN, +HE+- A!

ACTS PUNIS(ABLE IN BP 22

a. any person who ma5es or drawsand issues any chec5 to apply onaccount or for value 5nowin3 atthe time of issue that he does nothave sufficient funds in or creditwith the drawee ban5 for thepayment of such chec5 in fullupon its presentment whichchec5 is subsequently dishonoredby the drawee ban5 for insufficiency of funds or credit orwould have been dishonored for

the same reason had not thedrawee without any valid reasonordered the ban5 to stoppayment.

b. Any person who havin3 sufficientfunds in or credit with the draweeban5 when he ma5es or drawsand issues a chec5 shall fail to5eep sufficient funds or tomaintain a credit to cover the fullamount of the chec5 if presentedwithin a period of ninety days

from date appearin3 thereon forwhich reason it is dishonored bythe drawee ban5.

c. Any person who issue any chec5whose account already closedwhether the drawee 5nows thathis account is closed or not.

(OW TO ESTABLIS( GUILTO) ACCUSED IN BP 22

4o establish her 3uilt it is

indispensable that the chec5s sheissued for which she was

subsequently char3ed be offered

in evidence because the

3ravamen of the offense char3ed

is the act of 5nowin3ly issuin3 a

chec5 with insufficient funds.

learly it was error to convict

complainant on the basis of herletter alone. :evertheless

despite this incorrect

interpretation of a rule on

evidence we do not find the

same as sufficiently constitutive of

the char3es of 3ross i3norance of

the law and of 5nowin3ly

renderin3 an un


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DUT- O) T(E BANH ANDRULEIN CASE O) DIS(ONORDUE TO STOP PA-MENT

4he drawee ban5 has notonly the duty to indicate that the

drawer stopped the payment andthe reason for the stop payment.4he drawee ban5 is furtherobli3ated to state whether thedrawer of the chec5 has sufficientfunds in the ban5 or not.

AGREEMENT O) PARTIESREGARDING T(E C(ECHIS NOT A DE)ENSE

In the case of People vs

'itafan #"$ S!A thea3reement of the parties inrespect to the issuance of thechec5 is inconsequential or willnot affect the violation of @P ## ifthe chec5 is presented to theban5 and the same wasdishonored due to insufficiency offunds.

C(ECHS ISSUED IN PA-MENTO) INSTALLMENT STILL IN

,IOLATION O) B.P. 22

hec5s issued inpayment for installment coveredby promissory note and saidchec5s bounced the drawer isliable if the chec5s were drawna3ainst insufficient fundsespecially that the drawer uponsi3nin3 of the promissory noteclosed his account. Said chec5 isstill with consideration. (aram!esources v. ontreras,

In this case the )ud3ewas even held administrativelyliable.

C(ECH DRAWN AGAINSTA DOLLAR ACCOUNT IN)OREIGN COUNTR- IS STILL A,IOLATION O) B.P. 22 ASLONG AS T(E C(ECH ISDELI,ERED ON T(E P(ILS.AND I) IT IS PA-ABLE

OUTSIDE O) T(E P(ILS.

A chec5 drawn a3ainst a

dollar account in a forei3n country

is still violative of the provisions of

@P ## so lon3 as the chec5 is

issued delivered or uttered in the

Philippines even if the same is

payable outside of the Philippines(e Filla v. A,

GUARANTEE C(ECHS!DRAWER IS NOT LIABLE I)T(E LESSOR W(O ISRECIPIENT O) GUARANTEEC(ECH PULLED OUT O) T(ELOANED E0UIPMENT.

4he mere act of issuin3 aworthless chec5 is punishable.

>ffender cannot claim 3ood faithfor it is malum prohibitum.

In the case of Ma#no vsC( when accused issued achec5 as warranty deposit forlease of certain equipment even5nowin3 that he has no funds orinsufficient funds in the ban5 isnot liable if the lessor of theequipment pulled out the loanedequipment. 4he drawer has noobli3ation to ma5e 3ood the

chec5 because there is no moredeposit to 3uaranty.

ISSUANCE O) GUARANTEEC(ECHSW(IC( WAS DIS(ONORED ISSTILL A ,IOLATION O) BP 22.PREJUDICE OR DAMAGE ISNOT NECESSARR-

4he intention of theframers of @P ## is to ma5e amere act of issuin3 a worthlesschec5 malum prohibitum. Inprosecutions for violation of @P## therefore pre


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serve as 3uarantee or depositbut which chec5s is subsequentlydishonored ma5es the personwho issued the chec5 liable.(LaBaro vs A et al. !"&$6'",.

CAN A PERSON BE (ELDLIABLE )OR ,IOLATION O)B.P. 22 IN ISSUING A C(ECHWIT( SU))ICIENT )UNDS4

)es. Para3raph # ofSection " of @P ## providesD

4he same penalty shallbe imposed upon any person whohavin3 sufficient funds in or creditwith the drawee ban5 when hema5es or draws and issues achec5 shall fail to 5eep sufficientfunds or to maintain a credit tocover the full amount of the chec5if presented within a period of %&days from the date appearin3thereon for which reason it isdishonored by the drawee ban5.

DI))ERENCE BETWEENESTA)AAND ,IOLATION O) BP 22

In the crime of estafadeceit and dama3e are essentialelements of the offense and haveto be established with satisfactoryproof to warrant conviction. 9orviolation of the @ouncin3 hec5sLaw on the other hand theelements of deceit and dama3e

are neither essential nor required.!ather the elements of @.P. @l3.## are (a, the ma5in3 drawin3and issuance of any chec5 toapply to account or for value; (b,the ma5er drawer or issuer5nows at the time of issuance thathe does not have sufficient fundsin or credit with the drawee ban5for the payment of such chec5 infull upon its presentment; and (c,the chec5 is subsequentlydishonored by the drawee ban5

for insufficiency of funds or creditor would have been dishonoredfor the same reason had not the

drawer without valid reasonordered the ban5 to stoppayment. (0y v ourt of Appeals! ""%&&& )uly #+ "%%7,

RULES OR JURISDICTION INRELATION TO T(E COURTSW(EREBP 22 CASES MA-BE )ILED

In respect of the@ouncin3 chec5s case theoffense also appears to becontinuin3 in nature. It is true thatthe offense is committed by thevery fact of its performance

(olmenares vs. Fillar :o. L-#7"#' =ay #% "%7& S!A"+',; and that the @ouncin3hec5s Law penaliBes not onlythe fact of dishonor of a chec5 butalso the act of ma5in3 or drawin3and issuance of a bouncin3 chec5(People vs. ?on. Feridiano II :o.L-'##6 "# S!A $#,. 4hecase therefore could have beenfiled also in @ulacan. As held inue vs. People of the Philippines.!. :os. 7$#"7-"+ September

"" "%+7 /the determinative factor(in determinin3 venue, is theplace of the issuance of thechec5/. ?owever it is li5ewisetrue that 5nowled3e on the part ofthe ma5er or drawer of the chec5of the insufficiency of his fundswhich is an essential in3redient ofthe offense is by itself acontinuin3 eventuality whetherthe accused be within oneterritory or another (People vs.?on. =anBanilla .!. :os.

''&&-&6 ecember "" "%+7,.Accordin3ly


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specifically alle3es that the crimewas committed in San 9ernandoPampan3a and therefore withinthe


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C(ECHS IN CASES O) BP 22 ADE)ENSE

After a thorou3h review ofthe case at bar the ourt findsthat Petitioner Lina Lim Lao didnot have actual 5nowled3e of the

insufficiency of funds in thecorporate accounts at the timeshe affi1ed her si3nature to thechec5s involved in this case atthe time the same were issuedand even at the time the chec5swere subsequently dishonored bythe drawee ban5.

4he scope of petitioner2sduties and responsibilities did notencompass the fundin3 of thecorporation2s chec5s; her duties

were limited to the mar5etin3department of the @inondobranch. 0nder the or3aniBationalstructure of Premiere 9inancin3orporation fundin3 of chec5swas the sole responsibility of the4reasury epartment. (Lim Lao vA #76 S!A $7#,

LACH O) ADE0UATE NOTICEO)DIS(ONOR! A DE)ENSE

4here can be no primafacie evidence of 5nowled3e ofinsufficiency of funds in theinstant case because no notice ofdishonor was actually sent to orreceived by the petitioner.

4he notice of dishonormay be sent by the offended partyor the drawee ban5. 4he trialcourt itself found absent apersonal notice of dishonor to

Petitioner Lina Lim Lao by thedrawee ban5 based on theunrebutted testimony of >campo/(t,hat the chec5s bounced whenpresented with the drawee ban5but she did not inform anymorethe @inondo branch and Lina LimLao as there was no need toinform them as the corporationwas in distress./ 4he ourt ofAppeals affirmed this factualfindin3. Pursuant to prevailin3


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one year after itstermination.

(e, ausin3 any undue in


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or friendship accordin3 to localcustoms or usa3e shall bee1empted from the provision ofthis act.

MEANING O)CAUSING UNDUE INJUR-

4he act of 3ivin3 anyprivate party any unwarrantedbenefit advanta3e or preferenceis not an indispensable elementof causin3 any undue in


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CAUSING UNDUE INJUR-UNDER SEC. !LETTER e O) RA 3$5.INCLUDES ALL PUBLICO))ICERS INCLUDING T(OSET(AT DOES NOT ISSUE

LICENSE OR PERMIT ORCONCESSION.

Section enumerates ineleven subsections the corruptpractices of any public officerdeclared unlawful. Its referenceto any public officer is withoutdistinction or qualification and itspecifies the acts declaredunlawful. 8e a3ree with the viewadopted by the Solicitor eneralthat the last inclusion of officers

and employees of offices or3overnment corporations whichunder the ordinary concept ofOpublic officer may not comewithin the term. It is a strainedconstruction of the provision toread it as applyin3 e1clusively topublic officers char3ed with theduty of 3rantin3 license or permitsor other concessions. (=e


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3uilty of any2 refers only to anaction for removal from office anddoes not apply to a criminal case/

learly even if thealle3ed unlawful appointment wascommitted durin3 =a3hiran32s

first term as baran3ay chairmanand the =otion for his suspensionwas only filed in "%%$ durin3 hissecond term his re-election is nota bar to his suspension as thesuspension sou3ht for is inconnection with a criminal case.(onducto v. =onBon #%" scra'"%,

REELECTION IN PUBLIC

O))ICE

E*TINGUIS(ING ONL- (IS

ADMINISTRATI,E LIABILIT-

BUT

NOT (IS CRIMINAL LIABILIT-

As early as "+ ecember"%'7 in !n#co v. anc%e "7 thisourt e1plicitly ruled that the re-election of a public officiale1tin3uishes only theadministrative but not thecriminal liability incurred by himdurin3 his previous term of office

thusD

4he rulin3 thereforethat /when the peoplehave elected a man to hisoffice it must be assumed thatthey did this with 5nowled3eof his life and character andthat they disre3arded orfor3ave his faults or misconduct if he had been3uilty of any/ refers only toan action for removal from

office and does not apply tocriminal case because acrime is a public wron3 moreatrocious in character thanmere misfeasance or malfeasance committed by apublic officer in the dischar3eof his duties and is in


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@ut once a proper determinationof the validity of the informationhas been made it becomes theministerial duty of the court toforthwith issue the order ofpreventive suspension. 4he courthas no discretion for instance to

hold in abeyance the suspensionof the accused official on theprete1t that the order denyin3 thelatter2s motion to quash ispendin3 review before theappellate courts. (Se3ovia v.Sandi3anbayan; ! "#6&'7=ar. #7 "%%+,

GUIDELINES TO BE)OLLOWEDIN PRE,ENTI,E SUSPENSIONCASES

/In the leadin3 case ofLuciano et al. vs. Mariano et al.(L-#%$& )uly & "%7" 6&S!A "+7, we have set out the3uidelines to be followed by thelower courts in the e1ercise of thepower of suspension underSection " of the law to witD

(c, @y wayof broad 3uidelines for thelower courts in the e1ercise

of the power of suspensionfrom office of public officerschar3ed under a validinformation under theprovisions of !epublic Act:o. &"% or under theprovisions of the !evisedPenal ode on briberypursuant to section " ofsaid Act it may be brieflystated that upon the filin3 ofsuch information the trialcourt should issue an order

with proper notice requirin3the accused officer to showcause at a specific date ofhearin3 why he should notbe ordered suspended fromoffice pursuant to the citedmandatory provisions of theAct. 8here either theprosecution seasonablyfiles a motion for an orderof suspension or theaccused in turn files amotion to quash the

information or challen3esthe validity thereof suchshow-cause order of the

trial court would no lon3erbe necessary. 8hat isindispensable is that thetrial court duly hear theparties at a hearin3 held fordeterminin3 the validity ofthe information and

thereafter hand down itsrulin3 issuin3 thecorrespondin3 order ofsuspension should it upholdthe validity of theinformation or withholdsuch suspension in thecontrary case.

(d, :ospecific rules need be laiddown for such pre-suspension hearin3. Suffice

it to state that the accusedshould be 3iven a fair andadequate opportunity tochallen3e the validity of thecriminal proceedin3sa3ainst him e.3. that hehas not been afforded theri3ht of due preliminaryinvesti3ation the act forwhich he stands char3eddo not constitute a violationof the provisions of !epublic Act :o. &"% or of

the bribery provisions of the!evised Penal ode whichwould warrant hismandatory suspension fromoffice under Section " ofthe Act or he may presenta motion to quash theinformation on any of the3rounds provided in !ule""7 of the !ules of ourt.4he mandatory suspensiondecreed by the act upondetermination of the

pendency in court or acriminal prosecution forviolation of the Anti-raftAct or for bribery under avalid information requires atthe same time that thehearin3 be e1peditious andnot unduly protracted suchas to thwart the promptsuspension envisioned bythe Act. ?ence if the trialcourt say finds the 3roundalle3ed in the quashal

motion not to beindubitable then it shall becalled upon to issue the

27


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suspension order upon itsupholdin3 the validity of theinformation and settin3 thesame for trial on the merits.2(Se3ovia v.Sandi3anbayan,

W(EN MA- A PUBLIC O))ICER

BE

LIABLE )OR CAUSING UNDUE

INJUR-

UNDER SEC. e o; RA 3$5

111 111111

(c, ausin3 any undue in


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/(f,:e3lectin3 or

refusin3 after duedemand or requestwithout sufficient


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hold that the inordinate delay interminatin3 the preliminaryinvesti3ation and filin3 theinformation in the instant case isviolative of the constitutionally3uaranteed ri3ht of the petitionerto due process and to a speedy

disposition of the cases a3ainsthim. Accordin3ly the informationsin riminal ases :os. "&6%%"&$&& "&$&" "&$ and "&$&should be dismissed. In view ofthe fore3oin3 we find itunnecessary to rule on the otherissues raised by petitioner.(4atad v. Sandi3anbayan,

"EATH PENAT A!

(RA $5#)

PROSTITUTES CAN BE A,ICTIM O) RAPE

As to the su33estion thatA:ALIMA was a prostitute thatalone even if it be concededcannot absolve him of his liabilityfor rape. 9irst prostitutes can bevictims of rape. (People v.Alfeche,

REASON W(- DWELLINGIS AN AGGRA,ATINGCIRCUMSTANCE

wellin3 is considered ana33ravatin3 circumstancebecause primarily of the sanctityof privacy the law accords tohuman abode. 4he dwellin3 neednot be owned by the victim.4hus in People v. /asa dwellin3

was appreciated althou3h thevictims were 5illed while sleepin3as 3uests in the house of another.As aptly stated in People v./alansitD />Jne does not lose hisri3ht of privacy where he isoffended in the house of anotherbecause as anJ invited 3uest ora housemaid as in the instantcaseJ he the stran3er issheltered by the same roof andprotected by the same intimacy oflife it affords. It may not be his

house but it is even for a briefmoment /home/ to him. ?e is

entitled to respect even for thatshort moment./ (People v.Alfeche,

W(EN RELATIONS(IP IS NOT

AN

ALTERNATI,ECIRCUMSTANCE

UNDER ART. $? O) T(E RPC

learly then the father-dau3hter relationship in rapecases or between accused and!elanne in this case has beentreated by on3ress in the natureof a special circumstance whichma5es the imposition of the deathpenalty mandatory. ?ence

relationship as an alternativecircumstance under Article "$ ofthe !evised Penal odeappreciated as an a33ravatin3circumstance should no lon3erbe applied in view of theamendments introduced by !.A.:o. 7'$%. It may be pointedhowever that without thefore3oin3 amendmentrelationship would still be ana33ravatin3 circumstance in thecrimes of rape (Article $, and

acts of lasciviousness (Article',. $7

If relationship in theinstant case were to beappreciated under Article "$ ofthe !evised Penal ode thepenalty imposable on accusedthen would not be death butmerely reclusion perpetua forassumin3 that !elanne2stestimony in court would haveconfirmed what she narrated in

her sworn statement (G1hibit //,no circumstance then attendedthe commission of the rape whichcould brin3 the crime under anyprovision of Article $ whichimposes a penalty hi3her thanreclusion perpetuaor of reclusionperpetua to death. (People v.=anyuhod )r.,

W(EN O))ENDER IS STEP

GRANDPARENT!

(E IS NOT CONSIDERED AN

ASCENDANT

UNDER RA &? AND RA @6?5

30


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4he trial court has thusheld incorrectly in considerin3appellant who is le3ally marriedto !o1an2s natural 3randmotheras amon3 those named in theenumeration. Appellant is merely

a step-3randparent who obviouslyis neither an /ascendant/ nor a/step-parent/ of the victim. In therecent case of People vs. Atop#6 the ourt re


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the e1ecutive a3encies enforcethese laws and the


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detention if attended by anyof the followin3fourcircumstancesD(a, the victim wasdetained for more

than three days;(b, it wascommittedsimulatin3 publicauthority; (c,serious physicalinr acrime; (f, anarsenal firewor5sfactory or 3overnmentmuseum; and (3,a storehouse orfactory of e1plosivematerials locatedin an inhabited

place; or re3ardless ofwhat is burned if

the arson isperpetrated bytwo or morepersons (Sec."&,;

(%, !ape attended byany of the

followin3circumstancesD(a, the rape iscommitted with adeadly weapon;(b, the rape iscommitted by twoor more persons;and (c, the rapeis attempted orfrustrated andcommitted withhomicide (Sec.

"",;("&, Plunder involvin3at least P$&million (Sec. "#,;

("", Importation of prohibited dru3s(Sec. ",;

("#, Saleadministrationdeliverydistribution andtransportation ofprohibited dru3s

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

("6, =anufacture of prohibited dru3s (id.,;

("$, Possession or useof prohibited dru3sin certain specifiedamounts (id.,;

("', ultivation of

plants which aresources of prohibited dru3s(id.,

("7, Importation of re3ulated dru3s

(Sec. "6,;("+, =anufacture of

re3ulated dru3s (id.,;("%, Sale

administrationdispensationdelivery

transportation anddistribution of

33


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re3ulated dru3s(id.,;

(#&, =aintenance of den dive or resortfor users of re3ulated dru3s(Sec. "$,;

(#", Possession or useof re3ulated dru3sin specifiedamounts (Sec."',;

(##, =isappropriationmisapplication orfailure to accountdan3erous dru3sconfiscated by thearrestin3 officer(Sec. "7,;

(#, Plantin3 evidence

of dan3erousdru3s in person orimmediate vicinityof another toimplicate the latter(Sec. "%,; and

(#6, arnappin3 wherethe owner driveror occupant of thecarnapped motorvehicle is 5illed orraped (Sec. #&,(People v.

Gche3aray,

W(AT ARE T(E MANDATOR-

CRIMES PUNIS(ABLE B-

MANDATOR-

DEAT( PENALT- UNDER RA

@6?5

>n the other hand under !.A.:o. 7'$% the mandatory penalty

of death is imposed in thefollowin3 crimesD

$0& 1ualified bribery

/If any public officer isentrusted with law enforcementand he refrains from arrestin3 orprosecutin3 an offender who hascommitted a crime punishable byreclusion perpetua andEor deathin consideration of any offerpromise 3ift or present he shall

suffer the penalty for the offensewhich was not prosecuted.

If it is the public officer who as5sor demands such 3ift or presenthe shall suffer the penalty ofdeath./ (Sec. 6,

$2& 3idnappin# and seriousille#al detention for ransom

resultin# in t%e deat% of t%e victimor t%e victim is raped tortured orsubjected to de%umaniin# acts

/4he penalty shall bedeath where the 5idnappin3 ordetention was committed for thepurpose of ransom from thevictim or any other person even ifnone of the circumstances above-mentioned were present in thecommission of the offense.

8hen the victim is 5illed

or dies as a consequence of thedetention or is raped or is sub


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common-law spouse ofthe parent or the victim.#. when the victim isunder the custody of thepolice or militaryauthorities.. when the rape is

committed in full view ofthe husband parent anyof the children or otherrelatives within the thirdde3ree of consan3uinity.6. when the victim isa reli3ious or a childbelow seven (7, years old$. when theoffender 5nows that he isafflicted with AcquiredImmune eficiencySyndrome (AIS,

disease.'. when committedby any member of theArmed 9orces of thePhilippines or thePhilippine :ational Policeor any law enforcementa3ency.7. when by reasonor on the occasion of therape the victim hassuffered permanentphysical mutilation./ (Sec.

"" ,

$7& !n all t%e crimes in R(.'o. 897: in t%eir 6ualified form

/8hen in the commissionof the crime advanta3e wasta5en by the offender of his publicposition the penalty to beimposed shall be in its ma1imumof deathJ re3ardless of miti3atin3circumstances.

4he ma1imum penalty ofdeathJ shall be imposed if theoffense was committed by anyperson who belon3s to anor3aniBedEsyndicated crime3roup.

An or3aniBedEsyndicatedcrime 3roup means a 3roup oftwo or more personscollaboratin3 confederatin3 ormutually helpin3 one another forpurposes of 3ain in the

commission of any crime./ (Sec.#, include those in !.A. 7"'$

(People v.Gche3aray,

TWO INSTANCES W(ENDEAT( MA-

BE IMPOSED W(ENCONSTRUEDUNDER RA @6?5

4hus construin3 !.A. :o.7'$% in pari materia with the!evised Penal ode death maybe imposed when (", a33ravatin3circumstances attend thecommission of the crime as toma5e operative the provision ofthe !evised Penal odere3ardin3 the imposition of the

ma1imum penalty; and (#, othercircumstances attend thecommission of the crime whichindubitably characteriBe the sameas heinous in contemplation of!.A. :o. 7'$% that


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People v. ristobal. (People v.Gche3aray,

W(- RAPE IS A (EINOUSCRIME

/!ape is the forcibleviolation of the se1ual intimacy ofanother person. It does in


37/111

decreed by the law-ma5in3 body.(People v. Feneracion,

REASON )OR DURATION O)RECLUSION PERPETUAO) 3 OR %3 -EARS

4he imputed duration ofthirty (&, years for reclusionperpetua therefore is only toserve as the basis for determinin3the convict2s eli3ibility for pardonor for the application of the three-fold rule in the service of multiplepenalties. (People v. Lucas,

ROBBER- WIT( (OMICIDE!NUMBER O) PERSONSHILLED DOES NOT ALTERC(ARACTERI1ATION O) T(E

O))ENSEBUT CAN BE APPRECIATEDAS AGGRA,ATINGCIRCUMSTANCE.

8hile the number ofpersons 5illed does not alter thecharacteriBation of the offense asrobbery with homicide themultiplicity of the victims slainshould have been appreciated asan a33ravatin3 circumstance.4his would preclude an

anomalous situation where fromthe standpoint of the 3ravity of theoffense robbery with one 5illin3would be treated in the same waythat robbery with multiple 5illin3swould be. (People F. 4imple,

ROBBER- WIT( (OMICIDEAND ROBBER- WIT( RAPE+PRO,ISION O) ARTICLE 25%O) T(E RE,ISED PENALCODE AS AMENDED B-

REPUBLIC ACT @6?5 CANNOTBE APPLIED RETROACTI,EL-+CASE AT BAR.

0nder Article #%6 (", ofthe !evised Penal ode robberywith homicide is punishable byreclusion perpetua to death. Inview however of the firstpara3raph of Section "% Article IIIof the "%+7 onstitution whichprovides thatD /Sec. "%. (",

G1cessive fines shall not beimposed nor cruel de3radin3 orinhuman punishment inflicted.

:either shall death penalty beimposed unless for compellin3reasons involvin3 heinous crimesthe on3ress hereafter providesfor it. Any death penalty alreadyimposed shall be reduced toreclusion perpetua/ (Gmphasis

supplied, only the penalty ofreclusion perpetua could beimposed by the trial court. ?encethe attended a33ravatin3circumstances in this case had noimpact upon the determination ofthe proper penalty by the trialcourt. @y !epublic Act :o. 7'$%(effective " ecember "%%,on3ress re-imposed the deathpenalty for certain heinouscrimes includin3 robbery withhomicide and robbery with rape.

@y the same statute Article #%6of the !evised Penal ode wasamended to read as followsD /Anyperson 3uilty of robbery with theuse of violence a3ainst orintimidation on any person shallsufferD ". 4he penalty of reclusionperpetua to death when byreason or on occasion of therobbery the crime of homicideshall have been committed orwhen the robbery shall have beenaccompanied by rape or

intentional mutilation or arson. . . .(Gmphasis supplied, Article #%6of the !evised Penal ode asamended by !.A. :o. 7'$%however cannot be appliedretroactively in this case. 4o do sowould be to sub


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"%++ !ules on riminalProcedure.

(People -vs- Astor3a,

ELEMENTS O) GRA,ECOERCION

rave oercion or coaccion#ravehas three elementsD

a. 4hat any person is preventedby another from doin3somethin3 not prohibited bylaw or compelled to dosomethin3 a3ainst his or herwill be it ri3ht or wron3;

b. 4hat the prevention or compulsion is effected byviolence either by material

force or such a display of it aswould produce intimidationand consequently controlover the will of the offendedparty; and

c. that the person who restrainsthe will and liberty of anotherhas no ri3ht to do so or inother words that the restraintis not made under authority ofa law or in the e1ercise of anylawful ri3ht.

(People-vs- Astor3a,

ACTUAL DETENTION ORLOCHING UP! AN ESSENTIALELEMENT O) HIDNAPPING

Actual detention or/loc5in3 up/ is the primaryelement of 5idnappin3. If theevidence does not adequatelyprove this element the accusedcannot be held liable for

5idnappin3. In the present casethe prosecution merely provedthat appellant forcibly dra33ed thevictim toward a place only he5new. 4here bein3 no actualdetention or confinement theappellant may be convicted onlyof 3rave coercion.

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

DANGEROUS DRUGS ACT O)$5@2 R.A. NO. 6%2?+

SECTIONS $? AND 23T(EREO) AS AMENDED B-R.A. NO. @6?5.

In People vs. Martinimon y un#a (.!. :o.%+, decided on #% )uly "%%6

this ourt ruled as followsD (",Provisions of !.A. :o. 7'$%which are favorable to theaccused shall be 3iven retroactiveeffect pursuant to Article ## of the!evised Penal ode. (#, 8herethe quantity of the dan3erousdru3 involved is less than thequantities stated in the firstpara3raph of Section #& of !.A.:o. '6#$ the penalty to beimposed shall ran3e from prisioncorreccional to reclusion

temporal and not reclusionperpetua. 4he reason is that thereis an overlappin3 error probablythrou3h oversi3ht in the draftin3in the provisions on the penalty ofreclusion perpetua as shown byits dual imposition i.e. as theminimum of the penalty where thequantity of the dan3erous dru3sinvolved is more than thosespecified in the first para3raph ofthe amended Section #& and alsoas the ma1imum of the penalty

where the quantity of thedan3erous dru3s involved is lessthan those so specified in the firstpara3raph. (, onsiderin3 thatthe aforesaid penalty of prisioncorreccionalto reclusion temporalshall depend upon the quantity ofthe dan3erous dru3s involvedeach of the component penaltiesthereof prision correccionalprision mayor and reclusiontemporal shall be consideredas a principal imposable penalty

dependin3 on the quantity suchthat the quantity of the dru3senumerated in the secondpara3raph should then be dividedinto three with the resultin3quotient and double or treble thesame as the bases for determinin3 the appropriatecomponent penalty. (6, 4hemodifyin3 circumstances in the!evised Penal ode may beappreciated to determine theproper period of the

correspondin3 imposable penaltyor even to effect its reduction byone or more de3rees; provided

38


39/111

however that in no case shouldsuch 3raduation of penaltiesreduce the imposable penaltylower than prision correccional.($, In appropriate instances theIndeterminate Sentence Law shallbe applied and considerin3 that

!.A. :o. 7'$% has unqualifiedlyadopted the penalties under the!evised Penal ode with theirtechnical si3nification and effectsthen the crimes under thean3erous ru3s Act shall nowbe considered as crimespunished by the !evised Penalode; hence pursuant to Section" of the Indeterminate SentenceLaw the indeterminate penaltywhich may be imposed shall beone whose ma1imum shall be

within the ran3e of the imposablepenalty and whose minimum shallbe within the ran3e of the penaltyne1t lower in de3ree to theimposable penalty. 8ith thefore3oin3 as our touchstonesand it appearin3 that the quantityof the shabu recovered from theaccused in this case is only&.&%$+ 3ram the imposablepenalty under the secondpara3raph of Section #& of !.A.:o. '6#$ as further amended by

Section "7 of !.A. :o. 7'$%should be prision correccional.Applyin3 the IndeterminateSentence Law the accused maythen be sentenced to suffer anindeterminate penalty ran3in3from si1 (', months of arrestomayor as minimum to si1 (',years of prision correccional asma1imum.

W(EN T(E)T O) MOTOR,E(ICLE IS 0UALI)IED T(E)T.

STRA- DECISION

In this case the stolenproperty is a Hamaha !Smotorcycle bearin3 plate no. M-#%# with sidecar valued atP&&&&.&&. Since this valueremains undisputed we acceptthis amount for the purpose ofdeterminin3 the imposablepenalty. In simple theft suchamount carries the correspondin3penalty of prision mayor in its

minimum and medium periods tobe imposed in the ma1imumperiod. onsiderin3 that the

penalty for qualified theft is twode3rees hi3her than that providedfor simple theft the penalty ofprision mayor in its minimum andmedium periods must be raisedby two de3rees. 4hus thepenalty prescribed for the offense

committed of qualified theft ofmotor vehicle is reclusiontemporal in its medium andma1imum periods to be imposedin its ma1imum period. (PP -vs-Ricardo Dela Cru alias Pa*idManuel dela Cru alias Pa*idDanilo Dela Cru and Jo%n Doealias ,enry /alinta*a; and Insuranceorporation filed a motion in the

39


40/111

trial court on )anuary &' "%+7 forthe cancellation of petitioners2 bailbond for the latter2s failure torenew the same upon itse1piration. >btainin3 the consentof the bondsman was thusforeclosed. $(niceto abbun

Ma#uddatu and Laureanaabbun Ma#uddatu Petitioners-vs- ,onorable C


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absolutely no means of defendin3himself from the three brotherswho were armed with huntin35nives bent on finishin3 him off.4he wounded victim had not evenso much as a stic5 or a stone toparry off their blows. It should be

noted however at this point thatinasmuch as treachery has beenappreciated as a qualifyin3circumstance abuse of superiorstren3th should not have beenconsidered separately inasmuchas it is absorbed in treachery.$PP -vs- P"DR< L=M(C('GP(/L< L=M(C('G andD


42/111

when done was lawful;and

(f, deprives person accusedof a crime of some lawfulprotection to which hehas become entitled

such as the protection ofa former conviction oracquittal or aproclamation of amnesty.$PP -vs- C,(R!+

IE,A POEION O//IREAR'

(REP*BI+ A+T NO. %2#4)

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

/SG4I>: ".0nlawful

=anufacture SaleAcquisition isposition orPossession of 9irearms

or Ammunition or Instruments 0sed orIntended to be 0sed inthe =anufacture of9irearms or Ammunition. 4he penalty of prisioncorreccional in itsma1imum period and afine of not less than9ifteen thousand pesos(P"$&&&, shall beimposed upon anyperson who shall

unlawfully manufacturedeal in acquire disposeor possess any lowpowered firearm such asrimfire hand3un .+& or .# and other firearm ofsimilar firepower part offirearm ammunition ormachinery tool or instrument used or intended to be used inthe manufacture of anyfirearm or ammunitionD

Provided 4hat no othercrime was committed.

/4he penalty ofprision mayor in itsminimum period and afine of 4hirty thousandpesos (P&&&&, shall beimposed if the firearm isclassified as hi3h

powered firearm whichincludes those with boresbi33er in diameter than .+ caliber and %millimeter such as caliber.6& .6" .66 .6$ and alsolesser calibered firearmsbut considered powerfulsuch as caliber .$7 andcaliber .## center-firema3num and other firearms with firin3capability of full automatic

and by burst of two orthreeD Provided however4hat no other crime wascommitted by the personarrested.

/If homicide ormurder is committed withthe use of an unlicensedfirearm such use of anunlicensed firearm shallbe considered as ana33ravatin3

circumstance.

/If the violation ofthis Section is infurtherance of or incidentto or in connection withthe crime of rebellion orinsurrection sedition orattempted coup d2etatsuch violation shall beabsorbed as an elementof the crime of rebellionor insurrection sedition

or attempted coup d2etat.

/4he samepenalty shall be imposedupon the ownerpresident mana3erdirector or other responsible officer of anypublic or private firmcompany corporation orentity who shall willfullyor 5nowin3ly allow any ofthe firearms owned by

such firm companycorporation or entity to beused by any person or

42


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persons found 3uilty ofviolatin3 the provisions ofthe precedin3 para3raphsor willfully or 5nowin3lyallow any of them to useunlicensed firearms orfirearms without any le3al

authority to be carriedoutside of their residencein the course of theiremployment.

/4he penalty ofarresto mayor shall beimposed upon anyperson who shall carryany licensed firearmoutside his residencewithout le3al authoritytherefore./

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

/SG4I>: .0nlawful

=anufacture SaleAcquisition isposition orPossession of G1plosives. 4he

penalty of prision mayorin its ma1imum period toreclusion temporal and afine of not less than 9iftythousand pesos(P$&&&&, shall beimposed upon anyperson who shallunlawfully manufactureassemble deal inacquire dispose orpossess hand3renade(s, rifle

3renade(s, and othere1plosives includin3 butnot limited to 2pillbo122molotov coc5tail bombs22fire bombs2 or otherincendiary devicescapable of producin3destructive effect onconti3uous ob


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the serial number of anyfirearm./

SG4I>: 6. Section ' of Presidential ecree :o. "+'' asamended is hereby further

amended to read as followsD

/SG4I>: '.!epac5in3 or

Alterin3 the ompositionof Lawfully =anufacturedG1plosives. 4hepenalty of prisioncorreccional shall beimposed upon anyperson who shallunlawfully repac5 alter ormodify the composition of

any lawfullymanufacturede1plosives./

SG4I>: $. overa3e of the4erm 0nlicensed 9irearm. 4heterm unlicensed firearm shallincludeD

", firearms with e1piredlicense; or

#, unauthoriBed use oflicensed firearm inthe commission ofthe crime.

RULE ON ILLEGALPOSSESSION O) )IREARMSBE)ORE AN ACCUSEDMA-BE CON,ICTED

In crimes involvin3 ille3alpossession of firearm the

prosecution has the burden ofprovin3 the elements thereof viBD

a. the e1istence of thesub


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8e stress that theessence of the crime penaliBedunder P.. "+'' is primarily theaccused2s lac5 of license orpermit to carry or possess thefirearm ammunition or e1plosiveas possession by itself is not

prohibited by law. (People v.orteB #6 scra $ 66,

Ille3al possession offirearm is a crime punished byspecial law a malum pro%ibitumand no malice or intent to commita crime need be proved. (Peoplev. Lubo "&" Phil. "7%, 4o supporta conviction however there mustbe possession coupled with intentto possess (animus possidendi,the firearm. (Supra,

PRESENT MEANING O) ILLEGALPOSSESSION O) )IREARM

=nlicensed firearm no lon3ersimply means a firearm without a licenseduly issued by lawful authority. 4he scopeof the term has been e1panded in Sec.$of !.A. +#%6.

4hus the unauthoriBed use of aweapon which has been duly licensed in

the name of its ownerEpossessor may stilla33ravate the resultant crime. In the caseat bar althou3h appellants may havebeen issued their respective licenses topossess firearms their carryin3 of suchweapons outside their residences andtheir unauthoriBed use thereof in the5illin3 of the victim may be appreciated asan a33ravatin3 circumstance in imposin3the proper penalty for murder. (Pp. F.=olina; r ""$+$-'; )uly ## "%%+,

ILLEGAL POSSESSION O) )IREARMONL-SPECIAL AGGRA,ATINGCIRCUMSTANCEIN CRIMES O) (OMICIDE ANDMURDER.

8here murder or homicide was committed the separatepenalty for ille3al possession shall nolon3er be meted out since it becomesmerely a special a33ravatin3circumstance.

4his statutoryamendment may have been an offshootof our remar5s in Pp. A. +ac-an and Pp.A. 1uijadaD

F'eit%er is t%e 2nd

para#rap% of ec.0

meant to punis%%omicide or murder*it% deat% if eit%ercrime is committed *it%t%e use of anunlicensed firearm i.e.to consider suc% usemerely as a 6ualifyin#circumstance and notas an offense. +%atcould not %ave beent%e intention of t%ela*ma;er because t%e

term Fpenalty in t%esubject provision isobviously meant to bet%e penalty for ille#alpossession of firearmand not t%e penalty for%omicide or murder.He explicitly stated in+ac-an I

+%ere is no la* *%ic%renders t%e use of anunlicensed firearm as

an a##ravatin# circumstance in%omicide or murder.=nder an informationc%ar#in# %omicide ormurder t%e fact t%att%e deat% *eapon *asan unlicensed firearmcannot be used toincrease t%e penalty fort%e 2 nd offense of%omicide or murder todeat% $or reclusion

perpetua under t%e0:B8 Constitution&.+%e essential point ist%at t%e unlicensedc%aracter or conditionof t%e instrument usedin destroyin# %umanlife or committin# someot%er crime is notincluded in t%einventory of a##ravatin#circumstances set out

in (rticle 05 of t%eRevised Penal Code.

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A law may of course be enactedma5in3 use of an unlicensed firearm as aqualifyin3 circumstance. (People v.=olina; ! ""$+$-' )uly ## "%%+,

NEW PENALT- )OR LOWPOWERED)IREARM IN ILLEGALPOSSESSIONO) )IREARMS

Petitioner fortunately forhim is nonetheless not entirelybereft of relief. 4he enactmentand approval on &' )un "%%7 of!A +#%6 bein3 favorable to himshould now apply. 0nder thisnew law the penalty for

possession of any low poweredfirearm is only prisioncorreccional in its ma1imumperiod and a fine of not less thanP"$&&&.&&.

Applyin3 theIndeterminate Sentence Law thepresent penalty that may beimposed is anywhere from twoyears four months and one dayto four years and two months ofprision correccional in its medium

period as minimum up toanywhere from four years twomoths and one day to si1 years ofprision correccional in itsma1imum period as ma1imum..4he court in addition may imposea fine consistent with the principlethat an appeal in a criminal casethrows the whole case open forreview by the appellate tribunal.(=ario !abact+E%7,

ACTS PUNIS(ABLE:

". Oupon any person who shallunlawfully manufacture deal inacquire dispose or possess anylow powered firearm such asrimfire hand3un .+& or .# andother firearm of similar firepowerpart of firearm ammunition ormachinery tool or instrumentused or intended to be used inthe manufacture of any firearm or

ammunition

#. /If homicide or murder iscommitted with the use of anunlicensed firearm such use ofan unlicensed firearm shall beconsidered as an a33ravatin3circumstance.

. /If the violation of this Sectionis in furtherance of or incident toor in connection with the crime ofrebellion or insurrection seditionor attempted coup d2etat suchviolation shall be absorbed as anelement of the crime of rebellionor insurrection sedition orattempted coup d2etat.

6. /4he same penalty shall beimposed upon the ownerpresident mana3er director or

other responsible officer of anypublic or private firm companycorporation or entity who shallwillfully or 5nowin3ly allow any ofthe firearms owned by such firmcompany corporation or entity tobe used by any person orpersons found 3uilty of violatin3the provisions of the precedin3para3raphs or willfully or5nowin3ly allow any of them touse unlicensed firearms orfirearms without any le3al

authority to be carried outside oftheir residence in the course oftheir employment.

$. O4he penalty of arresto mayorshall be imposed upon anyperson who shall carry anylicensed firearm outside hisresidence without le3al authoritytherefore

'. OAny person who shall unlawfullytamper chan3e deface or erase

the serial number of any firearm.

7. OAny person who shall unlawfullyrepac5 alter or modify thecomposition of any lawfullymanufactured e1plosives.

CRIME O) ILLEGALPOSSESSION O) )IREARMMALUM PRO(IBITUM

4he offense of ille3al

possession of firearm is a malumprohibitum punished by a speciallaw in which case 3ood faith and

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absence of criminal intent are notvalid defenses. (People v eracia 7E'E%6,

". =anufacture deal in acquiredispose or possess. It isthese acts relative to

firearms. 4he obviousunderlyin3 principle is theundesirability of theproliferation of firearms andtheir free traffic andpossession. 4his is clear fromthe first two Owhereas clauseof P.. "+''. It is then clearthat ille3al possession etc. isa malum pro%ibitum. 9or purpose of simplicity we willconfine our analysis toOpossession althou3h what

we will discuss hereunderapplies to manufacturedealin3 in acquirin3 ordisposin3 as well.

".". it is not correctto say withoutqualificationthat Ointent isimmaterial.Intent as toossess&on &s&mmate&a.

Intent&on toossess &smate&a.8hatever thepurpose of thepossessionmay be isconsistentlyimmaterial.4hat one wasin possessionof anunlicensed

firearms merelyfor one*sprotectionwithoutintendin3 harmon anybody isa fruitlessdefense. It isthe clear doctrine of such cases asPeople v. de laRosa #+6

S!A "$+ thatOmerepossession

without criminalintent issufficient onwhich to rendera


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to 5eep thefirearm.

a.& (nimusPossidendi isdetermined byrecourse toovert acts prior

to or simultaneouswith possessionand other surroundin3circumstances.(People v. de laRosa, when it isestablished thatthe accusedpurchased theweapon inquestion a 3ood

case for animuspossidendi ismade.

b.,(nimuspossidendi mayalso be inferredfrom the factthat anunlicensedfirearms wasunder theapparent controland power of the

accussed.(People v.Aerc%es S!A "76,

c.& People v. deGuman .!.""7%$#-$(9ebruary "6#&&", holds thatthe O3ravamenfor the offenseof violation ofP.."+'' is the

possession offirearm withoutthe necessarypermit andEorlicense. O4hecrime isimmediatelyconsummatedupon merepossession of afirearm devoidof le3alauthority since it

is assumed thatthe same ispossed with

Oanimuspossidendioes it thenfollow thateveryone foundwith the firearmis in

Opossessionthereof for thepurpose of prosecution andconviction underP.. "+'' asamended by!.A. +#%6C 4heresults would bepatently absurd.

i. A personwho finds

a firearmsand ta5esit with himto thepolicestation forthepurpose ofturnin3 itover to thepoliceshould becommend

ed ratherthanprosecuted.

ii. A personwho isstopped ata chec5-point atwhich it isdiscovered thatthere is

firearms Qplacedeitheradvertently orinadvertently in hisba33a3ecompartment8&t7o6t7&s9no8ed:

e- cannotbe heldliable for

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ille3alpossession.

iii. If theoffenderwas inpossessio

n of anunlicensed only ontheoccasionof theshootin3fortransitorypurposeand for the shortmoment in

connection with theshootin3the Supreourt heldin Peoplev.Macaslin# #7S!A #%%that therewas noevidence

of Oanimuspossidendi.

iv. It thenappears tobe themorereasonable positionthat wherea personisapprehen

ded withanunlicensed weaponanimuspossidendi will bedisputablypresumed.4heaccusedmaycontrovert

thepresumption of

animuspossidendi. 4oconvictthe courtneedsproof

beyondreasonable doubt ofanimuspossidendi.

W(AT T(EPROSECUTION MUSTPRO,E IN CASES O)ILLEGAL POSSESSIONO) )IREARMS.

".6 8hat the prosecutionmust prove for it tosucceed under thelaw is two-foldD firstthe e1istence of thefirearm; secondthe absence of alicense or a permitto possess.(People v. Ru#ay#%" S!A '%#,

a., 4o prove the

e1istence of thefirearm it is notabsolutelynecessary that theob


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whether it is hi3h-powered or low-powered In Peoplev. utierreB .!."#+7+ ()anuary"+ "%%%, theSupreme ourt

ruled that a 0.S.carbine =" caliber .& was hi3h-powered because itwas capable ofe


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may be convicted ofsimple ille3al possessionif the ille3al possession isproved and the frustratedmurder and murder caseQ involvin3 the use of theille3al possession Q has

not been sufficientlyproved. People v.Avecilla .!. ""7&(9ebruary "$ #&&",teaches that Othe crime ofille3al possession offirearms in its simpleform is committed any ofthe crimes of murderhomicide rebellioninsurrection sedition orattempted coup d*etat.

#.#. It is also clear thatwhere either homicide ormurder is committed withthe use of an unlicensedfirearm such use shallconstitute anOa33ravatin3circumstances. It is well5nown that !.A. +#%6was initiated by Senator!amon !evilla as a favorto his friend !obin Padillawho was then servin3

sentence for ille3alpossession. It wastherefore meant to bemore benevolent as it isin the penalties it impose.Senator !evilla howevercould not see far enou3h(and re3rettably neithercould other le3islators,and the effect at least inthe case of murder is thatit may send the accusedto the lethal in


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homicide and murder itshould have e1presslysaid so as it did in thethird para3raph. Ferilywhere the law does notdistin3uish neithershould we. In brief

where the accusedcommits a crime otherthan those enumeratedwith the use of anunlicensed weapon noseparate char3e for suchuse will be brou3hta3ainst him. onsistentwith this is the dispositionby the Supreme courtdecreedD OAccordin3ly allpendin3 cases for ille3alpossession of firearms

should be dismissed ifthey arose from thecommission of crimesother than thoseindicated in Section " and of !.A. +#%6.

#.$ learly the law leadsto absurd results forwhen the use of anunlicensed weaponattends the commissionof a crime no matter how

trivial the case of ille3alpossession recedes intonemoral lesson can belearnedD Laws passed asfavor to one*s friend is apoor lawsR

OWNERS(IP IS NOT ANESSENTIALELEMENT O) ILLEGALPOSSESSION

4he rule is that ownershipis not an essential element ofille3al possession of firearms andammunition. 8hat the lawrequires is merely possessionwhich includes not only actual

physical possession but alsoconstructive possession or the

subwnership of the 3un isimmaterial or irrelevant inviolation of P "+'' asamended. >ne may be convictedof possession of an unlicensedfirearm even if he is not the ownerthereof.

(People -vs- !eynaldoruB ! :o.

7'7#+ Au3ust "%++,

Gven if the 3un is/palti5/ there is a need to securelicense for the 3un and if foundwithout any license therefor theoffender is liable for violation ofP "+''.(People vs- 9ilemon !amos ###

S!A $$7,

If an unlicensedfirearm is used to commit a crimeother than homicide or murder

such a direct assault withattempted homicide the use of an

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unlicensed firearm is neither ana33ravatin3 circumstances nor aseparate offense. Since the lawuses the word ?omicide or=urder possession of anunlicensed firearm is nota33ravatin3 in Attempted

?omicide.(People -vs- 8alpan Lad


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to Article ' of the !evised Penalode and the IndeterminateSentence Law for violation of the!evised Penal ode may now beapplied for violation of P "+''as amended and !epublic Act'6#$ as amended.

Gven if a person islicensed to possess a firearmsbut brin3s out firearm outside ofhis residence without permittherefor he is 3uilty of violation ofthe last para3raph of Section " ofP "+'' as amended. A =ission>rder cannot ta5e the place of alicense. A =ission >rder can onlybe issued to one licensed topossess a firearm.(Pedrito Pastrano -vs- ourt of

Appeals et al. #+" S!A #+7,

If the accused borroweda 3un from another who islicensed to possess firearm maythe former be liable for violation ofP "+'' as amendedC Hes.Gven if the 3un is licensed to oneand lends it to another the latteris liable for violation of P "+''as amended. A license to possessa firearm and a permit to carry alicensed firearm outside of his

residence is not transferable.(Pedrito Pastrano -vs- ourt ofAppeals et al. supra,

Gven if the firearmsub


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of licensed or unlicensedfirearms.

As lon3 as the accused isproved to have been inpossession of the unlicensedfirearm even if the firearm is not

adduced in evidence convictionunder the law is proper.(People -vs- 9elicisimo :arvasa

supra,

Re8uctavio=endoBa! :o. "&%#7&-+& )anuary

"+"%%%,

A 0nited States carbine=" caliber .-& is a hi3h-powered3un because it is capable ofemittin3 two or three bullets inone squeeBe.

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

"%%%,

It is not necessary thatthe firearm be produced andoffered in evidence for !epublicAct +#%6 to apply. It is not enou3hthat there is evidence of thee1istence of the 3un which can beestablished either by testimony orpresentation of the 3un itself.

Possession of anunlicensed firearm and used in5illin3 is a special a33ravatin3

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

"%%+,

4he ecision of theSupreme ourt in People versusRex /er#ante et. al. ! :o."#&'% 9ebruary #7 "%%+ thatthe use of an unlicensed firearmto commit murder is only a3eneric a33ravatin3 circumstanceis no lon3er true.

Possession under the lawmay either be actual physicalpossession or constructivepossession. ?owever althou3hthe crime under P "+'' asamended is malum prohibitumhowever there must be animuspossidendi or intent to possess.Animus possidendi may beinferred from the fact that anunlicensed firearm is under theapparent control and power of the

accused. however animuspossidendi may be contradicted ifa person in possession of an

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unlicensed firearm does notassert a ri3ht thereto.

If the possession of anunlicensed 3un is merelytemporary incidental or transientthe same is not punishable under

P "+''. ?owever the law doesnot provide for a fi1ed period oftime for one to be deemed in/possession/ of an unlicensedfirearm. (People -vs- RolandoAerc%es 244 CR( 085,. Gachfactual milieu must beconsidered.

IMPLICATION B- RA &25% ONPD $&66 ILLEGALPOSSESSION O) )IREARMS

P.. "+'' which codifiedthe laws on ille3al possession offirearms was amended on )une' "%%7 by !epublic Act +#'6.Aside from lowerin3 the penaltyfor said crime !.A. +#%6 alsoprovided that i; #o>i"ie or>urer i7 "o>>ie 9i# #eu7e o; an unli"en7e ;irear>!7u"# u7e 7#all 7an"e. 4his amendment

has two (#, implicationsD ;ir7the use of an unlicensed firearmin the commission of homicide ormurder shall not be treated as aseparate offense but merely as aspecial a33ravatin3 circumstance;7e"on as only a sin3le crime(homicide or murder with thea33ravatin3 circumstance ofille3al possession of firearm, iscommitted under the law onlyone penalty shall be imposed onthe accused.

Prescindin3 therefromand considerin3 that theprovisions of the amendatory laware favorable to herein appellantthe new law should beretroactively applied in the caseat bar. It was thus error for thetrial court to convict the appellantof two (#, separate offenses i.e.?omicide and Ille3al Possessionof 9irearms and punish himseparately for each crime. @ased

on the facts of the case the crimefor which the appellant may bechar3ed is #o>i"ie!

aggra=ae thecorrect denomination for thecrime and no illegal8o77e77ion o; ;irear>!aggra=ae i"ie asruled by the trial court as it is the

former offense which a33ravatesthe crime of homicide under theamendatory law.

E,EN I) ACCUSED ADMITTEDT(AT (E (AS NO LICENSE!SUC( ADMISSION IS NOTSU))ICIENT PROO) O)ILLEGAL POSSESSION O))IREARM

?ence in the case at bar

al#oug# #e a88ellan #i>7el;a>ie #a #e #a no li"en7e;or #e gun re"o=ere ;ro> #i78o77e77ion! #i7 a>i77ion 9illno relie=e #e 8ro7e"uion o;i7 uy o e7a>i77iono; #e "ri>e "#arge.

/=oreover 7aia>i77ion i7 eraui"ial innaure. As such it does not fallunder Section 6 of !ule "#% ofthe !evised !ules of ourt whichstatesD

An admission verbal orwritten made by a party in the

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course of the trial or otherproceedin3s in the same casedoes not require proof.

/:ot bein3 a en ! a>>uniion ore8lo7i=e a7 8o77e77ion


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9urthermore the penalty forille3al possession of firearmsshall be imposed provided that nocrime is committed. In otherwords where murder or homicidewas committed the penalty forille3al possession of firearms is

no lon3er imposable since itbecomes merely a speciala33ravatin3 circumstance. $PP-vs- (=G=+< L


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telephone unit which shares itsline with another.

MERE ACT O) LISTENING TO ATELEP(ONE CON,ERSATIONIN AN

E*TENSION LINE IS NOTPUNIS(ED B-ANTIWIRE TAPPING LAW

It can be readily seen thatour lawma5ers intended todiscoura3e throu3h punishmentpersons such as 3overnmentauthorities or representatives ofor3aniBed 3roups from installin3devices in order to 3atherevidence for use in court or tointimidate blac5mail or 3ain some

unwarranted advanta3e over thetelephone users. onsequentlythe mere act of listenin3 in orderto be punishable must strictly bewith the use of the enumerateddevices in !A 6#&& or others ofsimilar nature. 8e are of the viewthat an e1tension telephone is notamon3 such devices or arran3ements.

RAPE A +RI'E A,AINTPERON

(R.A. %353)

Rae< !7en And Ho8 +omm&tted

/", @y a man who shall havecarnal 5nowled3e of a womanunder any of the followin3circumstancesD

/a, 4hrou3h forcethreat or intimidation;/b, 8hen the

offended party is deprivedof reason or otherwiseunconscious;/c, @y means of fraudulent machination or3rave abuse of authority;and/d, 8hen theoffended party is undertwelve ("#, years of a3eor is demented eventhou3h none of thecircumstances mentioned

above be present.

/#, @y any person whounder any of the circumstancesmentioned in para3raph " hereofshall commit an act of se1ualassault by insertin3 his penis intoanother person2s mouth or analorifice or any instrument or

ob


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of " =ay "%%6 she wo5e up tofind someone removin3 herunderwear. 4huswise it cannot besaid that she was deprived ofreason or unconscious. She5new hence was consciouswhen her panties were bein3

pulled down; she 5new hencewas conscious when her le3swere bein3 parted to prepare forthe se1ual act; she 5new hencewas conscious when the manwas pullin3 down his briefs toprepare himself li5ewise for thecopulation; she 5new hence wasconscious when the manmounted her and lusted after hervirtue. ?er


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,OLUNTARIL- SUBMITTED TOSE*UAL INTERCOURSE ORNOT DUE TO INTIMIDATION

Physicalresistance is not the sole test todetermine whether or not a

woman involuntarily succumbedto the lust of an accused.)urisprudence holds that eventhou3h a man lays no hand on awoman yet if by array of physicalforces he so overpowers her mindthat she does not resist or sheceases resistance throu3h fear of3reater harm the consummationof unlawful intercourse by theman is rape.

(Pp. F.=ostrales; ! "#$%7 Au3.#+

"%%+,

DATE O) COMMISSION O)RAPE NOT ESSENTIALELEMENT O) SAID CRIME

It is settled thateven a variance of a few monthsbetween the time set out in theindictment and that establishedby the evidence durin3 the trialhas been held not to constitute an

error so serious as to warrantreversal of a conviction solely onthat score. 4he failure of thecomplainant to state the e1actdate and time of the commissionof the rape is a minor matter.

(Pp. F.@ernaldeB; !"&%7+&Au3. "7 "%%+,

E*AMPLE O) ,IRTUALCON)ESSION O) )ACT AND

NOT IN LAW IN CASES O)RAPE

It is concededthat after the rape Accused sentcomplainant two letters in whichhe implored her for3iveness andoffered to leave his wife so thathe could be with her. In fineappellant sealed his own fate byadmittin3 his crime under a sealof virtual confession in fact if notin law. (Pp. F. Prades; !

"#7$'% )uly & "%%+,

C(ILD BORN B- REASON O)

RAPE

MUST BE ACHNOWLEDGED

B- O))ENDER

UPON ORDERS O) T(ECOURT

9urthermore sinceA:ALIMA be3ot a child by reasonof the rape A:4G mustac5nowled3e and support theoffsprin3 pursuant to Article 6$of the !evised Penal ode inrelation to Article #&" of the9amily ode. (People v. Alfeche,

DWELLING AS AGGRA,ATING

CIRCUMSTANCE IN RAPECASES

It is clearhowever that the a33ravatin3circumstance of dwellin3 isattendant in the commission ofthe crime. Article "6($, of the!evised Penal ode providesthat this circumstance a33ravatesa felony where the crime iscommitted in the dwellin3 of theoffended party if the latter has not

3iven provocation. In the instantcase the aforesaid circumstanceof dwellin3 was definitely presentin the commission of the crime ofrape with the use of a deadlyweapon. (Pp. F. Prades; !"#7$'% )uly & "%%+,

INDEMNIT- IN CERTAINCASES O) RAPE

4he recent


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Indeed theconventional requirement ofalle#ata et probata in civilprocedure and for essentially civilcases should be dispensed within criminal prosecutions for rapewith the civil aspect included

therein since no appropriatepleadin3s are file wherein suchalle3ations can be made. (Pp. F.Prades; ! "#7$'% )uly &"%%+,

MEANING O) DEADL-WEAPON

IN CASES O) RAPE

A Odeadlyweapon is any weapon or

instrument made and desi3nedfor offensive or defensivepurposes or for the destruction oflife or thee infliction of inliva;"#E$E%7,

RAPE CAN BE COMMITTED INDI))ERENT PLACES E,ENT(OSE IN (IG( ,ENUES

It has been emphasiBedthat rape can be committed inmany different places includin3places which to many would

appear to be unli5ely and hi3h-ris5 venues for se1ual advances.4hus rape has been committedeven in places where peoplecon3re3ate in par5s alon3 theroadside within school premisesinside a house where there areother occupants and even in thesame room where other membersof the family are also sleepin3.

(People v. ementiBa;"E#%E%+,

W(EN SWEET(EARTDE)ENSEIS TENABLE IN RAPE

4he Osweetheart defenseput up by the accused meritsserious consideration. 8hile thetheory does not often 3ain favorwith the court such is not alwaysthe case if the hard fact is that theaccused and the supposed victimare in fact intimately related

e1cept that as is true in mostcases the relationship is eitherillicit or the parents are a3ainst it.

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In such instances it is notimprobable that when therelationship is uncovered thevictim*s parents would ta5e theris5 of institutin3 a criminal actionrather than admit to theindiscretion of their dau3hter.

And this as the records reveal iswhat happened in this case.(People vs !ico )amlan Salem>ctober "'E%7,

A MEDICAL E*AMINATION O),ICTIMIS NOT ELEMENT O) RAPE

A medical e1amination isnot an indispensable element in aprosecution for rape. 4he

accused may be convicted on thesole basis of complainant*stestimony if credible and thefindin3s of the medico-le3alofficer do not disprove thecommission of rape. People v)enelito Gscober H !esuento:ov 'E%7,

(EINOUSNESS O) RAPE O)ONES DESCENDANT

In the case before us the

accused raped his own flesh andblood at such a tender a3e ofeleven. ?e thus violated not onlyhe purity and her trust but alsothe mores of his society which hehas scornfully defined. @yinflictin3 his animal 3reed on herin a dis3ustin3 coercion ofincestuous lust he forfeits allrespect as human bein3 and is


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otherhand the information inriminal ase :os. +%6$-+%6'alle3ed that accused-appellant/who. is the stepfather of victim)enny =acaro/ succeeded inhavin3 carnal 5nowled3e of thelatter who was a 3irl below "#

years old. As already notedcontrary to these alle3ationsaccused-appellant is not reallythe stepfather of complainantsLenny and )enny becauseaccused-appellant andcomplainants2 mother were notle3ally married but were merelylivin3 in common-law relation. Infact Lenny and )ennyinterchan3eably referred toaccused-appellant as theirstepfather E;abitE Elive-in

partner n# Mama ;oE EtiyoE andEtiyu%in.E omplainants2 sister-in-law !osalie =acaro also testifiedthat her /mother-in-law is notle3ally married to accused-appellant./ Accused-appellantli5ewise said on direct and cross-e1amination that he was notle3ally married to the mother ofthe complainants and he referredto her as his live-in partner. 4hiswas confirmed by Gmma =acaromother of the complainants.

Althou3h the rape of a personunder ei3hteen ("+, years of a3eby the common-law spouse of thevictim2s mother is punishable bydeath this penalty cannot beimposed on accused-appellant inthese cases because thisrelationship was not what wasalle3ed in the information2s. 8hatwas alle3ed was that he is thestepfather of the complainants.

IN)ORMATION IN RAPE CASESWIT( USE O) DEADL-WEAPON MUST BE ALLEGEDOT(ERWISE DEAT( PENALT-!CANNOT BE IMPOSED

:either can accused-appellant be meted the deathpenalty in riminal ase :o.+%&& w

judge p transis

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