spl - judge pimentel notes

8/12/2019 SPL - Judge Pimentel Notes

1/236

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 TORECLUSION PERPETUA! (E IS NOT ENTITLEDTO T(E APPLICATION O) T(E INDETERMINATESENTENCE LAW

Accused-appellant cannot avail of the benetsof the Indeterminate Sentence Law becauseIndeterminate Sentence Law does not apply topersons convicted of oenses punishable withreclusion perpetua.

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

APPLICATION O) INDETERMINATE SENTENCELAW E*PLAINED

In the case of People vs. Gabres* the /ourt hashad occasion to so state that 0

12nder the Indeterminate Sentence Law* thema3imum term of the penalty shall be 4that which*in view of the attendin5 circumstances* could beproperly imposed4 under the #evised Penal /ode*and the minimum shall be within the ran5e of thepenalty ne3t lower to that prescribed4 for the


2/236

oense. 6he penalty ne3t lower should be based onthe penalty prescribed by the /ode for the oense*without rst considerin5 any modifyin5circumstance attendant to the commission of thecrime. 6he determination of the minimum penalty

is left by law to the sound discretion of the courtand it can be anywhere within the ran5e of thepenalty ne3t lower without any reference to theperiods into which it mi5ht be subdivided. 6hemodifyin5 circumstances are considered only in theimposition of the ma3imum term of theindeterminate sentence.

16he fact that the amounts involved in theinstant case e3ceed P%%*. should not beconsidered in the initial determination of theindeterminate penalty! instead* the matter shouldbe so ta7en as analo5ous to modifyin5circumstances in the imposition of the ma3imumterm of the full indeterminate sentence. 6hisinterpretation of the law accords with the rule thatpenal laws should be construed in favor of theaccused. Since the penalty prescribed by law forthe estafa char5e a5ainst accused-appellant isprision correccional ma3imum to prision mayorminimum* the penalty ne3t lower would then beprision correccionalminimum to medium. 6hus* the

minimum term of the indeterminate sentenceshould be anywhere within si3 () months and one($ day to four (8 years and two (% months . . .1

(People v. Saley! "# $%$$9'* +uly %* ,'

INDETERMINATE SENTENCE LAW+

APPLICABLE ALSO IN DRUG CASES:

6he nal uery is whether or not theIndeterminate Sentence Law is applicable to thecase now before us. Apparently it does* since dru5oenses are not included in nor has appellant

2


3/236

committed any act which would put him within thee3ceptions to said law and the penalty to beimposed does not involve reclusion perpetua ordeath* provided* of course* that the penalty asultimately resolved will e3ceed one year of

imprisonment. 6he more important aspect*however* is how the indeterminate sentence shallbe ascertained. It is true that Section $ of said law*after providin5 for indeterminate sentence for anoense under the #evised Penal /ode* states that1if the oense is punished by any other law* thecourt shall sentence the accused to an

indeterminate sentence* the ma3imum term ofwhich shall not e3ceed the ma3imum 3ed by saidlaw and the minimum shall not be less than theminimum term prescribed by the same1 :e holdthat this uoted portion of the section indubitablyrefers to an oense under a special law whereinthe penalty imposed was not ta7en from and iswithout reference to the #evised Penal /ode* asdiscussed in the precedin5 illustrations* such that itmay be said that the 1oense is punished1 underthat law. 6here can be no sensible debate that theaforeuoted rule on indeterminate sentence foroenses under special laws was necessary becauseof the nature of the former type of penalties undersaid laws which were not included or contemplated

in the scale of penalties in Article 9$ of the /ode*hence there could be no minimum 1within theran5e of the penalty ne3t lower to that prescribedby the /ode for the oense*1 as is the rule forfelonies therein. In the illustrative e3amples ofpenalties in special laws hereinbefore provided*this rule applied* and would still apply* only to the

rst and last e3amples. ;urthermore* considerin5the vinta5e of Act ustied underthe rule of contemporanea expositio. #epublic Act


4/236

under the #evised Penal /ode in their technicalterms* hence with their technical si5nication andeects. In fact* for purposes of determinin5 thema3imum of said sentence* we have applied theprovisions of the amended Section % of said law to

arrive atprision correccional and Article )8 of the/ode to impose the same in the medium period.Such oense* althou5h provided for in a speciallaw* is now in the eect punished by and under the#evised Penal /ode.

(People v ?artin Simon

W(EN T(E BENE)ITS O) INDETERMINATESENTENCE LAW IS NOT APPLICABLE+

a. @enses punished by death or lifeimprisonment.

b. 6hose convicted of treason (Art. $$8*conspiracy or proposal to commit treason(Art. $$&.

c. 6hose convicted of misprision of treason (Art.$$)* rebellion (Art. $=8* sedition (Art. $='*or espiona5e (Art. $$9.

d. 6hose convicted of piracy (Art. $%%.e. abitual delinuents (Art. )%* par. &.f. 6hose who escaped from connement or

those who evaded sentence.5. 6hose 5ranted conditional pardon and who

violated the terms of the same (Art. $&'.(People v. Corral* 98 Phil. =&'.

h. 6hose whose ma3imum period ofimprisonment does not e3ceed oneyear.

i. 6hose who are already servin5 nal >ud5mentupon the approval of the IndeterminateSentence Law.

>. 6hose oenses or crimes not punishable byimprisonment such as distierroandsuspension.

4


5/236

RECIDI,ISTS ARE ENTITLED TO T(E BENE)ITSO) T(E INDETERMINATE SENTENCE

#ecidivists are entitled to an indeterminatesentence. (People v. Jaramilla* L-%&89* ;eb. %%*$'98. @ender is not disualied to avail of thebenets of the law even if the crime is committedwhile he is on parole. (People v. Clareon* /A 9@.". )9$*


6/236

the penalty imposed on the accused* that is*reclusion perpetua* it is merely performin5 a dutyinherent in the court.

(People versus


7/236

:here the law violated provides for the penaltyof reclusion perpetua* impose the said penalty andnot the penalty of life imprisonment. :here the lawimposes the penalty of life imprisonment* do not

impose reclusion perpetua.(People -vs- #olando ?adria5a* %$$ S/#A )'

T(E REASON W(- RECLUSION PERPETUA (ASA RANGE DESPITE T(E SAME BEINGINDI,ISIBLE

6here we also said that 1if reclusion perpetuawas reclassied as a divisible penalty* then Article)= of the #evised Penal /ode would lose its reasonand basis for e3istence.1 6he imputed duration ofthirty (= years of reclusion perpetua* therefore*only serves as the basis for determinin5 theconvict4s eli5ibility for pardon or for the applicationof the three-fold rule in the service of multiplepenalties.

(People -vs- Aspolinar #a5anas* et al"#


8/236

ACCUSED W(O IS SENTENCED TO RECLUSIONPERPETUA IS STILL ENTITLED TO EIT(ER )ULLOR / O) (IS PRE,ENTI,E IMPRISONMENT

If* durin5 the trial* the accused was detainedbut* after trial* he was meted the penalty ofreclusion perpetua* he is still entitled to the fullcredit of his preventive imprisonment becauseArticle %' of the #evised Penal /ode does notdistin5uish between divisible and indivisible

penalties. (People -vs- #olando /orpuD*%=$ S/#A 8

0UALI)IED T(E)T

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

2nder Article =' of the #evised Penal /ode*the ma3imum of the penalty for ualied theft isprision mayor to reclusion temporal. owever*

under Article =$ of the #evised Penal /ode* thepenalty for the crime shall be two (% de5reeshi5her than the specied in Article =' of the /ode.2nder Article 98 of the #evised Penal /ode* thepenalty hi5her by one de5ree than another 5ivenpenalty* and if such hi5her penalty is death* thepenalty shall be reclusion perpetua of forty (8

years with the accessory penalties of death underArticle 8 of the #evised Penal /ode. 6he accusedshall not be entitled to pardon before the lapse offorty (8 years.

(People -vs- ;ernando /anales* %'9 S/#A ))9

8


9/236

9


10/236

THE PROBATION A! (P.". #$%)and &ts A'EN"'ENT

PROBATION! ITS MEANING:

A disposition under which a defendant* afterconviction and sentence* is sub>ect to conditionsimposed by the /ourt and under the supervision ofa probation oFcer.

PURPOSES O) PROBATIONG

a. to promote the correction and rehabilitationof an oender by providin5 him with personaliDedcommunity based treatment!b. to provide an opportunity for his reformationand reinte5ration into the community!c. to prevent the commission of oenses.

SUBMISSION O) PETITION AND TIME O))ILING O)PETITION

6he petition or application for probation must

be led directly with the /ourt which sentenced theaccused within $& days from date of promul5ationof the decision convictin5 the accused* or in shortwithin the period to appeal otherwise the >ud5mentshall become nal and the accused shall bedeemed to have waived his ri5ht to probation.

E))ECT O) )ILING O) PETITION )ORPROBATION

2pon lin5 of petition for probation* the courtshall suspend the e3ecution of sentence.

10


11/236

Li7ewise* the lin5 of a petition for probationshall be deemed a waiver of the ri5ht to appealand in case an appeal is made immediately afterconviction* a lin5 of petition for probation still

within the period to appeal* that is within fteendays from date of promul5ation shall be deemed awithdrawal of the appeal.

PENDING RESOLUTION O) PETITION! W(ATARE T(E PRI,ILEDGE T(AT MA-BE GI,EN TO

T(E ACCUSEDPETITIONER4

$. if the accused* prior to the promul5ation ofdecision of conviction is out on bail* he may beallowed on temporary liberty under his bail led insaid case!%. if he is under detention* upon motion* hemay be allowed temporary liberty* if he cannotpost a bond* on a reco5niDance of a responsiblemember of a community who shall 5uarantee hisappearance whenever reuired by the court.

IN CASE T(E APPLICANT )OR PROBATIONCANNOT BE PRODUCED B- T(E CUSTODIAN

ON RECOGNI1ANCE! W(AT (APPENS4

6he custodian must be as7ed to e3plain why heshould not be cited for contempt for failin5 toproduce the probationer when reuired by thecourt! Summary hearin5 will be held for indirectcontempt* and if custodian cannot produce the

petitioner* nor to e3plain his failure to produce thepetitioner* the custodian on reco5niDance shall beheld in contempt of court.

11


12/236

W(AT IS A POST SENTENCE IN,ESTIGATIONREPORT4

It is a report of the Parole and Probation @Fcerafter conductin5 post sentence investi5ation andinterviews containin5 the circumstancessurroundin5 the oense for which the petitionerwas convicted. 6he ndin5s should be drawn fromthe court records* police records* statement ofdefendants* the a55rieved party and other persons

who may 7now the petitioner and all other mattersmaterial to the petition.

It will also include the psycholo5ical and socialinformation re5ardin5 the probationer! evaluationof the petitioner! suitability for probation! hispotential for rehabilitation! and may include thepro5ram for supervision and su55ested terms ofconditions of probation and a recommendationeither to deny or 5rant the probation.

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

a.6o present himself to the probation oFcerconcerned for supervision within 9% hours fromreceipt of said order andb.6o report to the probation oFcer at least once amonth durin5 the period of probation.

W(AT ARE T(E OT(ER CONDITIONS O)PROBATION4

a.cooperate with a pro5ram of supervision!b.meet his family responsibilities!

12


13/236

c.devote himself to a specic employment andnot to char5e

d.said employment without prior writtenapproval of the probation oFcer!

e.comply with a pro5ram of payment of civil

liability to the victim of his heirs!f. under5o medical* psycholo5ical or psychiatric

e3amination and treatment andHor enter andremain in a specic institution* when reuiredfor that purposes!

5.pursue a prescribed secular study orvocational trainin5!

h.attend or reside in a facility established forinstruction or recreation of persons onprobation!

i. refrain from visitin5 houses of ill-repute!>. abstain from drin7in5 into3icatin5 bevera5es

to e3cess!7.permit the probation oFcer or an authoriDed

social wor7er to visit his home and place ofwor7!

l. reside at premises approved by the court andnot to chan5e his residence wHo prior writtenapproval! and

m. satisfy any other condition related to therehabilitation of the probationer and notunduly restrictive of his liberty or

incompatible with his freedom of conscience.n. plant trees ( see circular of the S/

RULES ON OUTSIDE TRA,EL O) PROBATIONER

A probationer who desires to travel outside the

>urisdiction of the city or provincial probation oFcerfor not more than = days* the permission of theparole and probation oFcer must be sou5ht. If formore than thirty (= days* aside from thepermission of the parole and probation oFcer* thepermission of the court must li7ewise be sou5ht.

13


14/236

E))ECT O) APPEAL B- T(E ACCUSED O) (ISCON,ICTION

If the accused appeals his conviction for thepurpose of totally reversin5 his conviction* he isdeemed to have waived his ri5ht to probation.

6he rule that if the accused appeals hisconviction only with respect to the penalty* as hebelieves the penalty is e3cessive or wron5* as the

penalty is probationable* and the appellate courtsustains the accused may still apply for probation*has already been abandoned. An appeal therefore*irrespective of its purpose* to overturn the entiredecision or only with respect to penalty is a waiverto probation* has already been abandoned. Anappeal therefore* irrespective of its purpose* tooverturn the entire decision or only with respect topenalty is a waiver to probation.

CON)IDENTIALIT- O) RECORDS O)PROBATION

6he investi5ation report and the supervision

and history of a probationer obtained under PC


15/236

Sec. %'* PC ')G I@LA6I@< @; /@


16/236

In case the penalty is ne* the probation shall notbe less than the period of subsidiary imprisonmentnor more than twice of the subsidiaryimprisonment.

AMENDMENT TO SECTION % O) PD 56&

1Sec. 8."rant of Probation. - Sub>ect to theprovisions of this Cecree* the trial court may* afterit shall have convicted and sentenced a defendant*and upon application by said defendant within the

period for perfectin5 an appeal* suspend thee3ecution of the sentence and place the defendanton probation for such period and upon such termsand conditions as it may deem best! Provided* 6hatno application for probation shall be entertained or5ranted if the defendant has perfected the appealfrom the >ud5ment of conviction.

1Probation may be 5ranted whether the sentenceimposes a term of imprisonment or a ne only. Anapplication for probation shall be led with the trialcourt. 6he lin5 of the application shall be deemeda waiver of the ri5ht to appeal.

1An order 5rantin5 or denyin5 probation shall not

be appealable.1

T#u7! a 8er7on 9#o 9a7 7enen"e oe7ierro "anno a88ly ;or 8ro8ri7on>en or ?ne.

(PC $''

*RIPR*"EN+E

UNDERL-ING P(ILOSOP(- O) PROBATION

16


17/236

6he underlyin5 philosophy of probation is indeedone of liberality towards the accused. It is notserved by a harsh and strin5ent interpretation ofthe statutory provisions. Probation is a ma>or stepta7en by our "overnment towards the deterrence

and minimiDin5 of crime and the humaniDation ofcriminal >ustice. In line with the public policybehind probation* the ri5ht of appeal should not beirrevocably lost from the moment a convictedaccused les an application for probation. Appealand probation sprin5 from the same policyconsiderations of >ustice* humanity* and

compassion. (Kusi v ?orales* 8H%H=

PROBATION IS NOT A RIG(TBUT A PRI,ILEGE

Probation is a mere privile5e and its 5rant restssolely upon the discretion of the court. As aptlynoted in 2.S. vs. Cur7en* this discretion is to bee3ercised primarily for the benet of or5aniDedsociety and only incidentally for the benet of theaccused. (6olentino v. Alconcel* ".#.


18/236

more than by its nature* as the law so ordains theoender is not such a serious menace to society asto be wrested away therefrom* as the moredan5erous type of criminals should be. ence* inthe case at bar* the rst reason 5iven by the

respondent >ud5e for his denial of the petition forprobation that* 1probation will depreciate theseriousness of the oense committed1 would thusbe writin5 into the law a new 5round fordisualifyin5 a rst-oender from the benets ofprobation. (Santos v. /ruD-Pano* $H$9H=

TIMELINESS O) )ILING APPLICATION )ORPROBATION

6he accused must le a Petition for Probationwithin the period for appeal. If the decision ofconviction has become nal and e3ecutory* theaccused is barred from lin5 a Petition forProbation (Pablo ;rancisco v. /.A.* 8H)H'&.

ORDER DEN-ING PROBATION NOTAPPEALABLE!REMED- CERTIORARI

Althou5h an order denyin5 probation is notappealable* the accused may le a motion for/ertiorari from said order (eirs of ;rancisco Abue5v. /.A.* %$' S/#A 9

E))ECT O) )ILING PETITION )OR PROBATION!

WAI,ER O) RIG(T TO APPEAL AND )INALIT-O) JUDGEMENT

A >ud5ment of conviction becomes nal whenthe accused les a petition for probation. owever*the >ud5ement is not e3ecutory until the petition

18


19/236

for probation is resolved. 6he lin5 of the petitionfor probation is a waiver by the accused of his ri5htto appeal the >ud5ement of conviction (eirs of;rancisco Abue5 v. /.A.* supra.

MULTIPLE CON,ICTIONS IN SE,ERAL CASESPROBATIONABLE I) PENALT- )OR EAC(CON,ICTION IS PROBATIONABLE

.1 Jvidently* the law does not intend to sum up thepenalties imposed but to ta7e each penalty*

separately and distinctly with the others./onseuently* even if petitioner was supposed tohave served his prison term of one ($ year andone ($ day to one ($ year and ei5ht ( months ofprision correccional si3teen ($) times as he wassentenced to serve the prison term for 1each crimecommitted on each date of each case* as alle5ed inthe information(s*1 and in each of the four (8informations* he was char5ed with havin5 defamedthe four (8 private complainants on four (8dierent* separate days* he was still eli5ible forprobation* as each prison term imposed onpetitioner was probationable. (;rancisco v. /A!8H$)H'&

REASON )OR )I*ING CUT O)) POINT AT AMA*IMUM O) SI* -EARS IMPRISONMENT )ORPROBATION.

;i3in5 the cut-o point at a ma3imum term of si3

() years imprisonment for probation is based onthe assumption that those sentenced to hi5herpenalties pose too 5reat a ris7 to society* not >ustbecause of their demonstrated capability forserious wron5doin5 but because of the 5ravity andserious conseuences of the oense they mi5ht

19


20/236

further commit. 6he Probation Law* as amended*disualies only those who have been convicted of5rave felonies as dened in Art. ' in relation to Art.%& of 6he #evised Penal /ode* and not necessarilythose who have been convicted of multiple

oenses in a sin5le proceedin5 who are deemed tobe less perverse. ence* the basis of thedisualication is principally the 5ravity of theoense committed and the concomitant de5ree ofpenalty imposed. 6hose sentenced to a ma3imumterm not e3ceedin5 si3 () years are not 5enerallyconsidered callous* hard core criminals* and thus

may avail of probation

,IOLATION O) RA 6%2@!A ,ALID CAUSE )OR DISMISSALIN SER,ICE IN T(E GO,ERNMENTDESPITE PROBATION

Cru5-pushin5* as a crime* has been variouslycondemned as 1an especially vicious crime*1 1oneof the most pernicious evils that has ever crept intoour society.1 ;or those who become addicted to it1not only slide into the ran7s of the livin5 dead*what is worse* they become a 5rave menace to thesafety of law-abidin5 members of society*1 while

1peddlers of dru5s are actually a5ents ofdestruction. 6he deserve no less than thema3imum penalty of deathM.1

6here is no doubt that dru5-pushin5 is a crimewhich involves moral turpitude and implies 1everythin5 which is done contrary to >ustice* honesty*

modesty or 5ood morals1 includin5 1acts ofbaseness* vileness* or depravity in the private andsocial duties which a man owes to his fellowmen orto society in 5eneral* contrary to the accepted ruleof ri5ht and duty between man and man.1 Indeednothin5 is more depraved than for anyone to be a

20


21/236

merchant of death by sellin5 prohibited dru5s* anact which* as this /ourt said in one case* 1oftenbreeds other crimes. It is not what we mi5ht call a4contained4 crime whose conseuences are limitedto that crime alone* li7e swindlin5 and bi5amy.

/ourt and police records show that a si5nicantnumber of murders* rapes* and similar oenseshave been committed by persons under theinNuence of dan5erous dru5s* or while they are4hi5h.4 :hile spreadin5 such dru5s* the dru5-pusheris also abettin5* throu5h his a5reed andirresponsibility* the commission of other crimes.1

6he ima5e of the >udiciary is tarnished by conduct*which involves moral turpitude. :hile indeed thepurpose of the Probation Law (P.C.


22/236

character and atone for the unfortunate death of#aul I. /amali5an. 6he /ourt is prepared to 5ivehim the benet of the doubt* ta7in5 >udicial noticeof the 5eneral tendency of the youth to be rash*temerarious and uncalculatin5. Let it be stressed

to herein petitioner that the lawyer4s oath is not amere formality recited for a few minutes in the5lare of Nashin5 cameras and before the presenceof select witnesses. Petitioner is e3horted toconduct himself beyond reproach at all times andto live strictly accordin5 to his oath and the /ode ofProfessional #esponsibility. And* to paraphrase ?r.

+ustice Padilla4s comment in the sister case of #eGPetition of Al Ar5osino 6o 6a7e 6he Lawyer4s @ath*Bar ?atter


23/236

ANTI)ENCING LAWO) $ 55PD NO. $6$2

DE)INITION

)en"ing a7 e?ne in Se". 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


24/236

properties. ;or if there are no buyers then themalefactors could not prot from their wron5doin5s.

W(AT IS )ENCING LAW AND (OW IT CAN BECOMMITTED

1;encin51 is the act of any person who* withintent to 5ain for himself or for another* shall buyreceive* possess* 7eep* acuire* conceal* sell or

dispose of* or shall buy and sell* or in any othermanner deal in any article* item* ob>ect or anythin5of value which he 7nows* or should be 7nown tohim* to have been derived from the proceeds of thecrime of robbery or theft. A 1;ence1 includes anyperson* rm* association corporation or partnershipor other or5aniDation whoH which commits the act

of fencin5.

W(O ARE LIABLE )OR T(E CRIME O))ENCING+ AND ITS PENALTIES:

6he person liable is the one buyin5* 7eepin5*concealin5 and sellin5 the stolen items. If the fenceis a corporation* partnership* association or rm*the one liable is the president or the mana5er orthe oFcer who 7nows or should have 7now the factthat the oense was committed.

6he law provides for penalty ran5e for personconvicted of the crime of fencin5. 6heir penalty

depends on the value of the 5oods or items stolenor bou5htG

a.6he penalty ofprision mayor* if the value of theproperty involved is more than $%* pesosbut not e3ceedin5 %%* pesos! if the value of

24


25/236

such property e3ceeds the latter sum* thepenalty provided in this para5raph shall beimposed in its ma3imum period* addin5 oneyear for each additional $* pesos! but thetotal penalty which may be imposed shall not

e3ceed twenty years. In such cases* thepenalty shall be termed reclusion temporal andthe accessory penalty pertainin5 theretoprovided in the #evised Penal /ode shall alsobe imposed.

b.6he penalty of prision correccional in its

medium and ma3imum periods* if the value ofthe property robbed or stolen is more than)* pesos but not e3ceedin5 $%* pesos!

c.6he penalty of prision correccional in itsminimum and medium periods* if the value ofthe property involved is more than % pesosbut not e3ceedin5 )* pesos!

d.6he penalty of arresto mayor in its mediumperiod to prision correccional in its minimumperiod* if the value of the property involved isover & but not e3ceedin5 % pesos!

e.6he penalty of arresto mayor in its medium

period if such value is over ve (& pesos butnot e3ceedin5 & pesos.

f. 6he penalty of arresto mayor in its minimumperiod if such value does not e3ceed & pesos.

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

6he law reuires the establishment en5a5ed inthe buy and sell of 5oods to obtain a clearance orpermit to sell 1used second hand items1* to 5ive

25


26/236

eect to the purpose of the law in puttin5 an endto buyin5 and sellin5 stolen items. ;ailure of whichma7es the owner or mana5er liable as a fence.

DE)INITION O) TERMS

6he Implementin5 #ules provides for the5uidelines of issuance of clearances or permits tosell used or secondhand itemsand it provided forthe denition of the followin5 termsG

$.12sed secondhand article1 shall refer to any5oods* article* items* ob>ect or anythin5 ofvalue obtained from an unlicensed dealer orsupplier* re5ardless of whether the same hasactually or in fact been used.

%.12nlicensed dealerHsupplier1 shall refer to anypersons* partnership* rm* corporation*association or any other entity orestablishment not licensed by the 5overnmentto en5a5e in the business of dealin5 in or ofsupplyin5 the articles dened in the precedin5para5raph!

=.1Store1* 1establishment1 or 1entity1 shall beconstrued to include any individual dealin5 inthe buyin5 and sellin5 used secondhandarticles* as dened in para5raph hereof!

8.1Buy and Sell1 refer to the transaction wherebyone purchases used secondhand articles for

the purpose of resale to third persons!

&.1Station /ommander1 shall refer to the Station/ommander of the Inte5rated


27/236

dealin5 in the buyin5 and sellin5 of usedsecondhand articles is located.

PROCEDURE )OR SECURINGPERMITHCLEARANCE

6he Implementin5 #ules provided for themethod of obtainin5 clearance or permit.


28/236

W(AT MA-BE RE0UIRED B- T(E STATIONCOMMANDER OR OWNER O) SECOND(ANDSTORES OR DEALERS

6he Station /ommander may* reuire the

submission of an aFdavit accompanied by otherdocuments showin5 proof of le5itimacy ofacuisition.

$.6hose who wish to secure thepermitHclearance* shall le an application withthe Station /ommander concerned* which

statesGa.name* address and other pertinentcircumstances

b.article to be sold or oered for sale to thepublic and the name and address of theunlicensed dealer or supplier from whomsuch article was acuired.

c.Include the receipt or document showin5proof of le5itimacy of acuisition.

2. 6he Station /ommander shall e3amine thedocuments attached to the application andmay reuire the presentation of otheradditional documents* if necessary* to showsatisfactory proof of the le5itimacy of

acuisition of the article* sub>ect to thefollowin5 conditionsG If the Station /ommander is not satised

with the proof of le5itimacy of acuisition* heshall cause the publication of the notice* atthe e3pense of the one see7in5clearanceHpermit* in a newspaper of 5eneral

circulation for two consecutive days* statin5Ga.articles acuired from unlicensed dealer

or supplierb. the names and addresses of the persons

from whom they were acuired

28


29/236

c. that such articles are to be sold oroered for sale to the public at theaddress of the store* establishment orother entity see7in5 theclearanceHpermit.

=.If there are no newspapers in 5eneralcirculation* the party see7in5 theclearanceHpermit shall* post a notice daily forone wee7 on the bulletin board of themunicipal buildin5 of the town where the store*rm* establishment or entity is located or* in

the case of an individual* where the articles inhis possession are to be sold or oered forsale.

8.If after $& days* upon e3piration of the periodof publication or of the notice* no claim ismade to any of the articles enumerated in thenotice* the Station /ommander shall issue theclearance or permit sou5ht.

&.If before e3piration of the same period for thepublication of the notice or its postin5* it shallappear that any of the articles in uestion isstolen property* the Station /ommander shallhold the article in restraint as evidence in any

appropriate case to be led.

).Articles held in restraint shall 7ept anddisposed of as the circumstances of each casepermit. In any case it shall be the duty of theStation /ommander concerned to adviseHnotifythe /ommission on Audit of the case and

comply with such procedure as may be properunder applicable e3istin5 laws* rules andre5ulations.

9.6he Station /ommander shall* within seventy-two (9% hours from receipt of the application*

29


30/236

act thereon by either issuin5 theclearanceHpermit reuested or denyin5 thesame. Cenial of an application shall be inwritin5 and shall state in brief the reasonHsthereof.

.Any party not satised with the decision of theStation /ommander may appeal the samewithin $ days to the proper I


31/236

=.6he accused 7nows or should have 7nown thatthe said article* item* or ob>ect or anythin5 ofvalue has been derived from the proceeds ofthe crime of robbery or theft! and

8.6here is* on the part of the accused* intent to

5ain for himself or for another. (CiDon-Pamintuan vs People* "# $$$8%)* $$ +uly '8

DISCUSSION O) T(E ELEMENTS.

A. As re5ards the rst element* the crime of

robbery or theft should have been committedbefore crime of fencin5 can be committed. 6heperson committin5 the crime of robbery or theft*may or may not be the same person committin5the crime of fencin5. As in the case of D.M.Consunji !nc. vs. "s#uerra* uantities of phelonicplywood were stolen and the /ourt held thatualied theft had been committed. In People vs.Lucero there was rst a snatchin5 incident* wherethe ba5 of ?rs. ?aripaD Bernard #amolete wassnatch in the public mar7et of /arbon* /ebu /ity*where she lost a /hinese "old


32/236

the nine (' pieces of stolen tires with rims ownedby Loui Anton Bond.

/. 6he accused 7now or should have 7nownthat the 5oods were stolen. As pointed out in the

case of People vs. Adriatico* the court in convictin5ewelry were stolenbecause of the fact that /risilita was willin5 to partwith a considerable number of >ewelry at measlysum* and this should have apprised ewelry were held tobe at P%*.* and


33/236

W(EN T(E)T OR ROBBER- AS )IRST ELEMENTWAS NOT PRO,EN.

In the case of People v. Muere (".#.$%'%*

$H$H'8* the third element was not proven. 6hiscase involves the sellin5 of alle5ed stolen RenwoodStereo 2nit in the store Canvir 6radin5* owned bythe spouses ?uere. 6he store is en5a5ed in buyin5and sellin5 of second hand merchandise located atPasay #oad* ?a7ati. 6he said stereo was bou5htfrom :ynn4s Audio* an e3istin5 establishment. 6he

court held that there is no proof that the spouses?uere* had 7nowled5e of the fact that the stereowas stolen. 6he spouses ?uere purchased thestereo from a 7nown merchant and the unit isdisplayed for sale in their store. 6hese actions arenot indicative of a conduct of a 5uilty person.

W(EN T(ERE IS NO PROO) T(AT T(EACCUSED BOUG(T OR SOLD ARTICLESNOWING T(E SAME TO BE STOLEN. T(UST(E T(IRD ELEMENT IS NOT PRESENT.

@n the same vein* the third element did note3ist in the case of D.M. Consunji !nc. (/onsun>i v.

Js5uerra* 9H=H') where the sub>ect of the courtaction are the alle5ed stolen phelonic plywoodowned by C.?. /onsun>i* Inc.* later found to be inthe premises of ?/ Industrial Sales and Seatotradin5 /ompany* owned respectively by Jduardo/hin5 and the spouses Sy. #espondents presentedsales receipts coverin5 their purchase of the items

from Paramount Industrial* which is a 7nownhardware store in /aloocan* thus they had noreason to suspect that the said items wereproducts of theft.

33


34/236

INTENT TO GAIN NEED NOT BE PRO,EN INANTI)ENCING LAW.

6he last element is that there is intent to 5ainfor himself or for another. owever* intent to 5ain

need not be proven in crimes punishable by aspecial law such as the Anti-;encin5 Law. 6hecrimes punishable by special laws are called 1actsmala pro%ibita1. 6he rule on the sub>ect is that inacts mala pro%ibita the only inuiry is that* has thelaw been violatedE (in "atdner v. People* as cited in2S v. "o /hico* $8 Phils. $=8 :hen the act is

prohibited by law* intent is immaterial.

DELIBERATE INTENT OR DOLO OR DECEIT ISNOT ALSO MATERIAL IN ANTI)ENCING.

Li7ewise* dolo or deceit is immaterial in crimespunishable by special statute li7e the Anti-;encin5Law. It is the act itself which constitutes the oenseand not the motive or intent. Intent to 5ain is amental state* the e3istence if which isdemonstrated by the overt acts of the person. 6hemental state is presumed from the commission ofan unlawful act. (Cunlao v. /A a5ain* intent to 5ainis a mental state* the e3istence of which is

demonstrated by the overt acts of person* as the7eepin5 of stolen items for subseuent sellin5.

A )ENCE MA- BE PROSECUTEDUNDER T(E RPC OR PD $6$2 OR BOT(

6he state may thus choose to prosecute himeither under the #P/ or PC


35/236

and prescribes a hi5her penalty based on the valueof the property. (supra

MERE POSSESSION O) STOLEN ARTICLE

PRIMA )ACIE E,IDENCE O) )ENCING.

Since Sec. & of PC ect or anythin5 of value which has been thesub>ect of robbery or thievery shall be prima facieevidence of fencin5T. It follows that the accused is

presumed to have 7nowled5e of the fact that theitems found in her possession were the proceeds ofrobbery or theft. 6he presumption does not oendthe presumption of innocence enshrined in thefundamental law.

DISTINCTION BETWEEN )ENCING ANDROBBER-

6he law on fencin5 does not reuire theaccused to have participation in the criminaldesi5n to commit or to have been in any wiseinvolved in the commission of the crime of robberyor theft.


36/236

@n the other hand* fencin5 is the act of anyperson who* with intent to 5ain for himself or foranother* shall buy* receive* possess* 7eep* acuire*conceal* sell or dispose of* or shall buy and sell* orin any other manner deal in any article* item*

ob>ect or anythin5 of value which he 7nows* orshall be 7nown to him* to have been derived fromthe proceeds of the crime of robbery or theft.

)ENCING AS A CRIME IN,OL,ING MORALTURPITUDE

In violation of the Anti-;encin5 Law* actual7nowled5e by the 1fence1 of the fact that propertyreceived is stolen displays the same de5ree ofmalicious deprivation of one4s ri5htful property asthat which animated the robbery or theft which bytheir very nature are crimes of moral turpitude.(Cela 6orre v. /@?JLJ/ 9H&H')

?oral turpitude can be derived from the thirdelement - accused 7nows or should have 7nownthat the items were stolen. Participation of eachfelon* one bein5 the robber or the thief or theactual perpetrators* and the other as the fence*diers in point in time and de5ree but both invaded

one4s peaceful dominion for 5ain. (Supra Bothcrimes ne5ated the principle of each person4s dutyto his fellowmen not to appropriate thin5s that theydo not own or return somethin5 acuired bymista7e or with malice. 6his si5nies moralturpitude with moral untness.

In the case of Cela 6orre* he was declareddisualied from runnin5 the position of ?ayor in/avinti* La5una in the last ?ay * $''& electionsbecause of the fact of the disualication underSec. 8 of the Local "overnment /ode* of personsrunnin5 for elective position -1Sec. 8

36


37/236

Cisualications - (a 6hose sentenced by nal>ud5ement for an oense involvin5 moralturpitude...1

Cela 6orre was disualied because of his prior

conviction of the crime of fencin5 wherein headmitted all the elements of the crime of fencin5.

ESSENCE O) ,IOLATION O) PD $6$2!SEC. 2 OR ANTI)ENCING

PC $)$%* Section % thereof reuires that theoender buys or otherwise acuires and then sellsor disposes of any ob>ect of value which he 7nowsor should he 7nown to him to have been derivedfrom the proceeds of the crime of robbery or theft.(/aoili v /A! "# $%=)'* $%H%%H'9

PROO) O) PURC(ASE W(EN GOODSARE IN POSSESSION O) O))ENDERNOT NECESSAR- IN ANTI)ENCING

6he law does not reuire proof of purchase ofthe stolen articles by petitioner* as merepossession thereof is enou5h to 5ive rise to a

presumption of fencin5.

It was incumbent upon petitioner to overthrowthis presumption by suFcient and convincin5evidence. (/aoili v. /A! "# $%=)'* $%H%%H'9

37


38/236

BATAS PAMBANSA BLG. 22BOUNCING C(ECS LAW

ACTS PUNIS(ABLE IN BP 22

a.any person who ma7es or draws and issues anychec7 to apply on account or for value*7nowin5 at the time of issue that he does nothave suFcient funds in or credit with thedrawee ban7* for the payment of such chec7 infull upon its presentment* which chec7 is

subseuently dishonored by the drawee ban7for insuFciency of funds* or credit* or wouldhave been dishonored for the same reason hadnot the drawee* without any valid reason*ordered the ban7 to stop payment.

b.Any person who havin5 suFcient funds in orcredit with the drawee ban7 when he ma7es ordraws and issues a chec7* shall fail to 7eepsuFcient funds or to maintain a credit to coverthe full amount of the chec7 if presented withina period of ninety days from date appearin5thereon* for which reason* it is dishonored bythe drawee ban7.

c. Any person who issue any chec7 whoseaccount already closed whether the drawee7nows that his account is closed or not.

(OW TO ESTABLIS( GUILTO) ACCUSED IN BP 22

6o establish her 5uilt* it is indispensable thatthe chec7s she issued for which she wassubseuently char5ed* be oered in evidencebecause the 5ravamen of the oense char5ed isthe act of 7nowin5ly issuin5 a chec7 with

38


39/236

insuFcient funds. /learly* it was error to convictcomplainant on the basis of her letter alone.ust decision. #ather* it is at most an error in>ud5ment* for which* as a 5eneral rule* he cannotbe held administratively liable. In this re5ard* wereiterate the prevailin5 rule in our >urisdiction asestablished by current >urisprudence. ("utierreD vPallatao! HH'

NOTICE! AN INDISPENSABLERE0UISITE )OR PROSECUTION

Section = of BP %% reuires that the holder ofthe chec7 or the drawee ban7* must notify thedrawer of the chec7 that the same was dishonored*if the same is presented within ninety days fromdate of issuance* and upon notice the drawer hasve days within which to ma7e arran5ements forthe payment of the chec7 or pay the same in full.

DUT- O) T(E DRAWEE BAN

6he drawee ban7 has the duty to cause to bewritten* printed or stamped in plain lan5ua5ethereon* or attached thereto the reason for thedrawee,s dishonor or refusal to pay the same. Ifthe drawee ban7 fails to do so* prosecution forviolation of BP %% may not prosper.

DUT- O) T(E BAN AND RULE IN CASE O)DIS(ONOR DUE TO STOP PA-MENT

39


40/236

6he drawee ban7 has not only the duty toindicate that the drawer stopped the payment andthe reason for the stop payment. 6he drawee ban7is further obli5ated to state whether the drawer ofthe chec7 has suFcient funds in the ban7 or not.

AGREEMENT O) PARTIES REGARDING T(EC(EC IS NOT A DE)ENSE

In the case of People vs 'itafan* %$& S/#A* thea5reement of the parties in respect to the issuanceof the chec7 is inconseuential or will not aect the

violation of BP %%* if the chec7 is presented to theban7 and the same was dishonored due toinsuFciency of funds.

C(ECS ISSUED IN PA-MENT O)INSTALLMENT STILL IN ,IOLATION O) B.P. 22

/hec7s issued in payment for installmentcovered by promissory note and said chec7sbounced* the drawer is liable if the chec7s weredrawn a5ainst insuFcient funds* especially that thedrawer* upon si5nin5 of the promissory note*closed his account. Said chec7 is still withconsideration. (/aram #esources v. /ontreras

In this case* the +ud5e was even heldadministratively liable.

C(EC DRAWN AGAINST A DOLLAR ACCOUNTIN )OREIGN COUNTR- IS STILL A ,IOLATION

O) B.P. 22 AS LONG AS T(E C(EC ISDELI,ERED ON T(E P(ILIPPINES AND I) IT ISPA-ABLE OUTSIDE O) T(E P(ILS.

A chec7 drawn a5ainst a dollar account in aforei5n country is still violative of the provisions of

40


41/236

BP %% so lon5 as the chec7 is issued* delivered oruttered in the Philippines* even if the same ispayable outside of the Philippines (Ce illa v. /A

GUARANTEE C(ECS! DRAWER IS NOT LIABLEI) T(E LESSOR W(O IS RECIPIENT O)GUARANTEE C(EC PULLED OUT O) T(ELOANED E0UIPMENT.

6he mere act of issuin5 a worthless chec7 is

punishable. @ender cannot claim 5ood faith for itis malum prohibitum.

In the case of Ma#no vs C(* when accusedissued a chec7 as warranty deposit for lease ofcertain euipment* even 7nowin5 that he has nofunds or insuFcient funds in the ban7 is not liable*if the lessor of the euipment pulled out the loanedeuipment. 6he drawer has no obli5ation to ma7e5ood the chec7 because there is no more depositto 5uaranty.

ISSUANCE O) GUARANTEE C(ECS W(IC(WAS DIS(ONORED IS STILL A ,IOLATION O)

BP 22. PREJUDICE OR DAMAGE IS NOTNECESSARR-

6he intention of the framers of BP %% is toma7e a mere act of issuin5 a worthless chec7malum prohibitum. In prosecutions for violation ofBP %%* therefore* pre>udice or dama5e is not

prereuisite for conviction.

6he a5reement surroundin5 the issuance of thechec7s need not be rst loc7ed into* since the lawhas provided that the mere issuance of any 7ind ofchec7! re5ardless of the intent of the parties* i.e.*

41


42/236

whether the chec7 is intended merely to serve as5uarantee or deposit* but which chec7s issubseuently dishonored* ma7es the person whoissued the chec7 liable. (LaDaro vs /A* et al.* "#$&8)$.

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

)es. Para5raph % of Section $ of BP %%

providesG

6he same penalty shall be imposed upon anyperson who havin5 suFcient funds in or credit withthe drawee ban7 when he ma7es or draws andissues a chec7* shall fail to 7eep suFcient funds orto maintain a credit to cover the full amount of thechec7 if presented within a period of ' days fromthe date appearin5 thereon* for which reason* it isdishonored by the drawee ban7.

DI))ERENCE BETWEEN ESTA)AAND ,IOLATION O) BP 22

In the crime of estafa* deceit and dama5e areessential elements of the oense and have to beestablished with satisfactory proof to warrantconviction. ;or violation of the Bouncin5 /hec7sLaw* on the other hand* the elements of deceit anddama5e are neither essential nor reuired. #ather*the elements of B.P. Bl5. %% are (a the ma7in5*

drawin5 and issuance of any chec7 to apply toaccount or for value! (b the ma7er* drawer orissuer 7nows at the time of issuance that he doesnot have suFcient funds in or credit with thedrawee ban7 for the payment of such chec7 in fullupon its presentment! and* (c the chec7 is

42


43/236

subseuently dishonored by the drawee ban7 forinsuFciency of funds or credit or would have beendishonored for the same reason had not thedrawer* without valid reason* ordered the ban7 tostop payment. (2y v /ourt of Appeals* "# $$'*

+uly %* $''9

RULES OR JURISDICTION IN RELATION TO T(ECOURTS W(EREBP 22 CASES MA-BE )ILED

In respect of the Bouncin5 chec7s case* theoense also appears to be continuin5 in nature. Itis true that the oense is committed by the veryfact of its performance (/olmenares vs. illar*


44/236

alle5ation in the Information* which are controllin5(Arches vs. Bellosillo* $ Phil. $'* cited in 6uDonvs. /ruD* urisdiction to try /riminal /ase


45/236

In the case at bench it appears that the three(= chec7s were deposited in Lucena /ity. As to thesecond error wherein the petitioner asserted thatthe chec7s were issued 1as a 5uarantee only forthe feeds delivered to him1 and that there is no

estafa if a chec7 is issued in payment of a pre-e3istin5 obli5ation* the /ourt of Appeals pointedout that the petitioner obviously failed todistin5uish a violation of B.P. Bl5. %% from estafaunder Article =$& (% dM of the #evised Penal /ode.It further stressed that B.P. Bl5. %% applies even incases where dishonored chec7s were issued as a

5uarantee or for deposit only* for it ma7es nodistinction as to whether the chec7s within itscontemplation are issued in payment of anobli5ation or merely to 5uarantee the saidobli5ation and the history of its enactment evincesthe denite le5islative intent to ma7e theprohibition all-embracin5. (Ibasco vs /A* %)$S/#A &9%

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

Rnowled5e of insuFciency of funds or credit inthe drawee ban7 for the payment of a chec7 upon

its presentment is an essential element of theoense. 6here is a prima facie presumption of thee3istence of this element from the fact of drawin5*issuin5 or ma7in5 a chec7* the payment of whichwas subseuently refused for insuFciency offunds. It is important to stress* however* that this isnot a conclusive presumption that forecloses or

precludes the presentation of evidence to thecontrary. (Lim Lao v /A %98 S/#A &9%

45


46/236

W(EN LAC O) NOWLEDGE AND LAC O)POWER TO )UND T(E C(ECS IN CASES O)BP 22 A DE)ENSE

After a thorou5h review of the case at bar* the

/ourt nds that Petitioner Lina Lim Lao did nothave actual 7nowled5e of the insuFciency of fundsin the corporate accounts at the time she aF3edher si5nature to the chec7s involved in this case* atthe time the same were issued* and even at thetime the chec7s were subseuently dishonored bythe drawee ban7.

6he scope of petitioner4s duties andresponsibilities did not encompass the fundin5 ofthe corporation4s chec7s! her duties were limited tothe mar7etin5 department of the Binondo branch.2nder the or5aniDational structure of Premiere;inancin5 /orporation* fundin5 of chec7s was thesole responsibility of the 6reasury Cepartment.(Lim Lao v /A %98 S/#A &9%

LAC O) ADE0UATE NOTICE O) DIS(ONOR! ADE)ENSE

6here can be no prima facie evidence of

7nowled5e of insuFciency of funds in the instantcase because no notice of dishonor was actuallysent to or received by the petitioner.

6he notice of dishonor may be sent by theoended party or the drawee ban7. 6he trial courtitself found absent a personal notice of dishonor to

Petitioner Lina Lim Lao by the drawee ban7 basedon the unrebutted testimony of @campo 1(that thechec7s bounced when presented with the draweeban7 but she did not inform anymore the Binondobranch and Lina Lim Lao as there was no need toinform them as the corporation was in distress.1

46


47/236

6he /ourt of Appeals aFrmed this factual ndin5.Pursuant to prevailin5 >urisprudence* this ndin5 isbindin5 on this /ourt. (Lim Lao v /A! )H%H'9

47


48/236

ANTIGRA)T CORRUPT PRACTICES ACTRA NO K3$5

ANTIGRA)T AND CORRUPT

PRACTICES ACT

Corruptpractices of public ocers.

(a Persuadin5* inducin5 or inNuencin5 anotherpublic oFcer to perform an act constitutin5a violation of rules and re5ulations duly

promul5ated by competent authority or anoense in connection with the oFcial dutiesof the latter* or allowin5 himself to bepersuaded* induced* or inNuenced to commitsuch violation or oense.

(b Cirectly or indirectly reuestin5 orreceivin5 any 5ift* present* share*percenta5e* or benet* for himself or for anyother person* in connection with anycontract or transaction between the"overnment and any other part* wherein thepublic oFcer in his oFcial capacity has tointervene under the law.

(c Cirectly or indirectly reuestin5 orreceivin5 any 5ift* present or other pecuniaryor material benet* for himself or foranother* from any person for whom thepublic oFcer* in any manner or capacity* hassecured or obtained* or will secure or obtain*any "overnment permit or license* in

consideration for the help 5iven or to be5iven* without pre>udice to Section thirteenof this Act.

(d Acceptin5 or havin5 any member of hisfamily accept employment in a private

48


49/236

enterprise which has pendin5 oFcialbusiness with him durin5 the pendencythereof or within one year after itstermination.

(e /ausin5 any undue in>ury to any party*includin5 the "overnment* or 5ivin5 anyprivate party any unwarranted benets*advanta5e or preference in the dischar5e ofhis oFcial administrative or >udicial functionsthrou5h manifest partiality* evident bad faithor 5ross ine3cusable ne5li5ence. 6his

provision shall apply to oFcers andemployees of oFces or 5overnmentcorporations char5ed with the 5rant oflicenses or permits or other concessions.

( f ustication* toact within a reasonable time on any matterpendin5 before him for the purpose ofobtainin5* directly or indirectly* from anyperson interested in the matter somepecuniary or material benet or advanta5e*or for the purpose of favorin5 his owninterest or 5ivin5 undue advanta5e in favorof or discriminatin5 a5ainst any other

interested party.

(5 Jnterin5* on behalf of the "overnment* intoany contract or transaction manifestly and5rossly disadvanta5eous to the same*whether or not the public oFcer proted orwill prot thereby.

(h Cirector or indirectly havin5 nancin5 orpecuniary interest in any business* contractor transaction in connection with which heintervenes or ta7es part in his oFcialcapacity* or in which he is prohibited by the

49


50/236

/onstitution or by any law from havin5 anyinterest.

(i Cirectly or indirectly becomin5 interested*for personal 5ain* or havin5 a material

interest in any transaction or act reuirin5the approval of a board* panel or 5roup ofwhich he is a member* and which e3ercisesdiscretion in such approval* even if he votesa5ainst the same or does not participate inthe action of the board* committee* panel or5roup.

Interest for personal 5ain shall be presumeda5ainst those public oFcers responsible forthe approval of manifestly unlawful*ineuitable* or irre5ular transaction or actsby the board* panel or 5roup to which theybelon5.

( > Rnowin5ly approvin5 or 5rantin5 anylicense* permit* privile5e or benet in favorof any person not ualied for or not le5allyentitled to such license* permit* privile5e oradvanta5e* or of a mere representative ordummy of one who is not so ualied orentitled.

(7 Civul5in5 valuable information of acondential character* acuired by his oFceor by him on account of his oFcial positionto unauthoriDed persons* or releasin5 suchinformation in advance of its authoriDedrelease date.

UNE*PLAINED WEALT(! MEANING

Prima facie evidence of and dismissal due toune3plained wealth. If in accordance with theprovisions of #A $=9'* a public oFcial has been

50


51/236

found to have acuired durin5 his incumbency*whether in his name or in the name of otherpersons* an amount of property andHor moneymanifestly out of proportion to his salary and to hisother lawful income* that fact shall be a 5round for

dismissal or removal.

'oteG 2nsolicited 5ifts or presents of small orinsi5nicant value shall be oered or 5iven as amere ordinary to7en of 5ratitude or friendshipaccordin5 to local customs or usa5e shall bee3empted from the provision of this act.

MEANING O) CAUSING UNDUE INJUR-

6he act of 5ivin5 any private party anyunwarranted benet* advanta5e or preference isnot an indispensable element of causin5 any unduein>ury to any part* althou5h there may be instanceswhere both elements concur. (Santia5o vs"architorena* et al.* % Cec. '=.

In Mejoroda v /andi#anbayan* the Supreme/ourt has ruled that the oender in causin5 undue

in>ury does not refer only to those who are inchar5e of 5ivin5 permits* licenses or concessionsbut all acts of public oFcers or employees whichhave caused undue in>ury to others.

ELEMENTS O) NEGLECT O) DUT- UNDER SEC.

K O) RA K3$5

a.the oender is a public oFcer!b.the said oFcer has ne5lected or has refused

to act without suFcient >ustication after duedemand or reuest has been made upon him!

51


52/236

c. reasonable time has elapsed from suchdemand or reuest without the public oFcerhavin5 acted on the matter pendin5 beforehim!

d.such failure to so act is for the purpose of

obtainin5 directly or indirectly from anyperson interested in the matter somepecuniary or material benet or advanta5e infavor of an interested party or discriminatin5a5ainst another. /oronado v Sandi5anbayan.

W(ERE PUBLIC O))ICER ACTED WIT(MANI)EST PARTIALIT-!E,IDENT BAD )AIT(! OR INE*CUSABLENEGLIGENCE

Sec. =. /orrupt practices of public oFcers. - Inaddition to acts or omissions of public oFcersalready penaliDed by e3istin5 law* the followin5shall constitute corrupt practices of any publicoFcer and are hereby declared to be unlawfulG

333 333 333

(e. /ausin5 any undue in>ury to any party*includin5 the "overnment* or 5ivin5 any private

party any unwarranted benets* advanta5e orpreference in the dischar5e of his oFcialadministrative or >udicial functions throu5hmanifest partiality* evident bad faith or 5rossine3cusable ne5li5ence. 6his provision shall applyto oFcers and employees of oFces or 5overnmentcorporations char5ed with the 5rant of licenses or

permits or other concessions.

,IOLATION O) SECTION K E O) RA K3$5RE0UIRES PROO) O) T(E )OLLOWING )ACTS!,I1:

52


53/236

a.the accused is a public oFcer dischar5in5administrative or oFcial functions or privatepersons char5ed in conspiracy with them!

b.the public oFcer committed the prohibited actdurin5 the performance of his oFcial duty or inrelation to his public position!

c.the public oFcer acted with manifest partialityevident bad faith or 5ross* ine3cusablene5li5ence! and

d.his action caused undue in>ury to the5overnment or any private party* or 5ave anyparty any unwarranted benet* advanta5e orpreference to such parties.

CAUSING UNDUE INJUR- UNDER SEC. K!LETTER e O) RA K3$5. INCLUDES ALLPUBLIC O))ICERS INCLUDING T(OSE T(ATDOES NOT ISSUE LICENSE OR PERMIT ORCONCESSION.

Section = enumerates in eleven subsectionsthe corrupt practices of any public oFcer declared

unlawful. Its reference to any public oFcer iswithout distinction or ualication and it speciesthe acts declared unlawful. :e a5ree with the viewadopted by the Solicitor "eneral that the lastinclusion of oFcers and employees of oFces or5overnment corporations which* under the ordinaryconcept of public oFcerT may not come within the

term. It is a strained construction of the provisionto read it as applyin5 e3clusively to public oFcerschar5ed with the duty of 5rantin5 license orpermits or other concessions. (?e>orada vSandi5anbayan* $&$ S/#A =''.

53


54/236

SUSPENSION UNDER R.A. K3$5 MANDATOR-BUT COURTS ARE ALLOWED TO DETERMINEW(ET(ER IN)ORMATION IS ,ALID OR NOT

It is well settled that Section $= of #A =$'ma7es it mandatory for the Sandi5anbayan (or the/ourt to suspend any public oFcer a5ainst whoma valid information char5in5 violation of this law*Boo7 II* 6itle 9 of the #P/* or any oense involvin5fraud upon 5overnment or public funds or propertyis led in court. 6he court tryin5 a case has neither

discretion nor duty to determine whetherpreventive suspension is reuired to prevent theaccused from usin5 his oFce to intimidatewitnesses or frustrate his prosecution or continuecommittin5 malfeasance in oFce. All that isreuired is for the court to ma7e a ndin5 that theaccused stands char5ed under a valid informationfor any of the above-described crimes for thepurpose of 5rantin5 or denyin5 the sou5ht forsuspension. (Bolasti5 vs. Sandi5anbayan* ".#.


55/236

not a cause for removal durin5 the present term1 isuntenable. In the case of #odolfo J. A5uinaldo vs.on. Luis Santos and ?elvin ar5as* %$% S/#A 9)*the /ourt held that 1the rule is that a public oFcialcannot be removed for administrative misconduct

committed durin5 a prior term since his re-electionto oFce operates as a condonation of the oFcer4sprevious misconduct committed durin5 a priorterm* to the e3tent of cuttin5 o the ri5ht toremove him therefor. 6he fore5oin5 rule* however*nds no application to criminal cases . . .1

Li7ewise* it was specically declared in the

case of !n#co vs. /anc%e* ".#.


56/236

incurred by him durin5 his previous term of oFce*thusG

6he rulin5* therefore* that 0 1when the peoplehave elected a man to his oFce it must be

assumed that they did this with 7nowled5e of hislife and character and that they disre5arded orfor5ave his faults or misconduct if he had been5uilty of any1 0 refers only to an action forremoval from oFce and does not apply to criminalcase* because a crime is a public wron5 moreatrocious in character than mere misfeasance or

malfeasance committed by a public oFcer in thedischar5e of his duties* and is in>urious not only toa person or 5roup of persons but to the State as awhole. 6his must be the reason why Article ' ofthe #evised Penal /ode* which enumerates the5rounds for e3tinction of criminal liability* does notinclude reelection to oFce as one of them* at leastinsofar as a public oFcer is concerned. Also* underthe /onstitution* it is only the President who may5rant the pardon of a criminal oense. (/onductov. ?onDon! A.?.


57/236

basically to determine the validity of theinformation and thereby furnish the court with abasis to either suspend the accused and proceedwith the trial on the merits of the case* or refusesuspension of the latter and dismiss the case* or

correct any part of the proceedin5 which impairs itsvalidity. 6he accused should be 5iven adeuateopportunity to challen5e the validity or re5ularityof the criminal proceedin5s a5ainst him! e.5. thathe has not been aorded the ri5ht to duepreliminary investi5ation! that the acts imputed tohim do not constitute a specic crime (under #.A.

=$' or the #evised Penal /ode warrantin5 hismandatory suspension from oFce under Section $=of the Act! or that the information is sub>ect touashal on any of the 5rounds set out in #ule $$9of the #ules of /ourt. But once a properdetermination of the validity of the information hasbeen made* it becomes the ministerial duty of thecourt to forthwith issue the order of preventivesuspension. 6he court has no discretion* forinstance* to hold in abeyance the suspension of theaccused oFcial on the prete3t that the orderdenyin5 the latter4s motion to uash is pendin5review before the appellate courts. (Se5ovia v.Sandi5anbayan! "# $%8)9* ?ar. %9* $''

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

1In the leadin5 case of Luciano et al. vs.Mariano* et al. (L-=%'&* +uly =* $'9$* 8 S/#A$9* we have set out the 5uidelines to be followed

by the lower courts in the e3ercise of the power ofsuspension under Section $= of the law* to witG

(c By way of broad 5uidelines for the lowercourts in the e3ercise of the power of suspensionfrom oFce of public oFcers char5ed under a valid

57


58/236

information under the provisions of #epublic Act


59/236

under a valid information reuires at the same timethat the hearin5 be e3peditious* and not undulyprotracted such as to thwart the promptsuspension envisioned by the Act. ence* if thetrial court* say* nds the 5round alle5ed in the

uashal motion not to be indubitable* then it shallbe called upon to issue the suspension order uponits upholdin5 the validity of the information andsettin5 the same for trial on the merits.4 (Se5ovia v.Sandi5anbayan

W(EN MA- A PUBLIC O))ICER BE LIABLE )ORCAUSING UNDUE INJUR- UNDER SEC. Ke o;RA K3$5

333 333 333(c /ausin5 any undue in>ury to any party*includin5 the "overnment* or 5ivin5 any privateparty any unwarranted benets* advanta5e orpreference in the dischar5e of his oFcial*administrative or >udicial functions throu5hmanifest partiality* evident bad faith or 5rossine3cusable ne5li5ence. 6his provision shall applyto oFcers and employees of oFces or 5overnmentcorporations char5ed with the 5rant of licenses orpermits or other concessions.1

6o hold a person liable under this section* theconcurrence of the followin5 elements must beestablished beyond reasonable doubt by theprosecutionG

$. 6hat the accused is a public oFcer or a

private person char5ed in conspiracy withthe former!%. 6hat said public oFcer commits the

prohibited acts durin5 the performance ofhis or her oFcial duties or in relation to hisor her public positions!

59


60/236

=. 6hat he or she causes undue in>ury to anyparty* whether the 5overnment or a privateparty! and

8. 6hat the public oFcer has acted withmanifest partiality* evident bad faith or

5ross ine3cusable ne5li5ence.(Llorente v. Sandi5anbayan!"# $%%$))* ?ar. $$* $''

MEANING O) BAD )AIT( UNDERSECTION Ke O) RA K3$5

10ad fait% does not simply connote bad>ud5ment or ne5li5ence! it imputes a dishonestpurpose or some moral obliuity and consciousdoin5 of a wron5! a breach of sworn duty throu5hsome motive or intent or ill will! it parta7es of thenature of fraud. (Spie5el v Beacon Participations*


61/236

W(EN O))ENDER IS NOT LIABLE UNDERSEC. Ke BUT UNDER SEC. ; O) RA K3$5

It would appear that petitioner4s failure orrefusal to act on the complainant4s vouchers* or thedelay in his actin5 on them more properly fallsunder Sec. =fMG

1(f ustication* to act

within a reasonable time on any matter pendin5before him for the purpose of obtainin5* directly orindirectly* from any person interested in the mattersome pecuniary or material benet or advanta5e*or for purpose of favorin5 his own interest or 5ivin5undue advanta5e in favor of or discriminatin5a5ainst any other interested party.1

ere* the ne5lect or refusal to act within areasonable time is the criminal act* not the causin5of undue in>ury. 6hus* its elements areG

1$ 6he oender is a public oFcer!% Said oFcer has ne5lected or has refused to actwithout suFcient >ustication after due demand or

reuest has been made on him!= #easonable time has elapsed from such demandor reuest without the public oFcer havin5 actedon the matter pendin5 before him! and

8 Such failure to so act is 4for the purpose ofobtainin5* directly or indirectly* from any personinterested in the matter some pecuniary or

material benet or advanta5e in favor of aninterested party* or discriminatin5 a5ainstanother.1

owever* petitioner is not char5ed with aviolation of Sec. =fM. ence* further disuisition is

61


62/236

not proper.


63/236

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

After a careful review of the facts and

circumstances of this case* we are constrained tohold that the inordinate delay in terminatin5 thepreliminary investi5ation and lin5 the informationin the instant case is violative of theconstitutionally 5uaranteed ri5ht of the petitionerto due process and to a speedy disposition of thecases a5ainst him. Accordin5ly* the informations in

/riminal /ases


64/236

DEAT( PENALT- LAWRA 6@5

PROSTITUTES CAN BE A ,ICTIM O) RAPE

As to the su55estion that A


65/236

/learly then* the father-dau5hter relationship inrape cases* or between accused and #elanne* inthis case* has been treated by /on5ress in thenature of a special circumstance which ma7es theimposition of the death penalty mandatory. ence*

relationship as an alternative circumstance underArticle $& of the #evised Penal /ode* appreciatedas an a55ravatin5 circumstance* should no lon5erbe applied in view of the amendments introducedby #.A.


66/236

re>ected the application of the mandatory deathpenalty to the rape of a $%-year old victim by thecommon-law husband of the 5irl4s 5randmother.6he /ourt saidG

1It is a basic rule of statutory construction thatpenal statutes are to be liberally construed in favorof the accused. /ourt4s must not brin5 cases withinthe provision of a law which are not clearlyembraced by it.


67/236

law or custom* reli5ious or secular* is an ancientpractice. :e do 7now that our forefathers 7illed toaven5e themselves and their 7in and that initially*the criminal law was used to compensate for awron5 done to a private party or his family* not to

punish in the name of the state.

6he dawnin5 of civiliDation brou5ht with it boththe increasin5 sensitiDation throu5hout the later5enerations a5ainst past barbarity and theinstitutionaliDation of state power under the rule oflaw. 6oday every man or woman is both an

individual person with inherent human ri5htsreco5niDed and protected by the state and a citiDenwith the duty to serve the common weal anddefend and preserve society.

@ne of the indispensable powers of the state isthe power to secure society a5ainst threatened andactual evil. Pursuant to this* the le5islative arm of5overnment enacts criminal laws that dene andpunish ille5al acts that may be committed by itsown sub>ects* the e3ecutive a5encies enforce theselaws* and the >udiciary tries and sentences thecriminals in accordance with these laws.

Althou5h penolo5ists* throu5hout history* have

not stopped debatin5 on the causes of criminalbehavior and the purposes of criminal punishment*our criminal laws have been perceived as relativelystable and functional since the enforcement of the#evised Penal /ode on +anuary $* $'=%* thisnotwithstandin5 occasional opposition to the deathpenalty provisions therein. 6he #evised Penal /ode*

as it was ori5inally promul5ated* provided for thedeath penalty in specied crimes under speciccircumstances. As early as $)* thou5h* capitalpunishment had entered our le5al system throu5hthe old Penal /ode* which was a modied versionof the Spanish Penal /ode of $9.

67


68/236

(People v. Jche5aray

W(- DEAT( PENALT- IS NOTA CRUEL AND UNUSUAL PUNIS(MENT

16he penalty complained of is neither cruel*un>ust nor e3cessive. In J3-parte Remmler* $=)2.S.* 8=)* the 2nited States Supreme /ourt saidthat 4punishments are cruel when they involvetorture or a lin5erin5 death* but the punishment ofdeath is not cruel* within the meanin5 of that word

as used in the constitution. It implies theresomethin5 inhuman and barbarous* somethin5more than the mere e3tin5uishment of life.41

as lon5 as that penalty remains in the statuteboo7s* and as lon5 as our criminal law provides forits imposition in certain cases* it is the duty of>udicial oFcers to respect and apply the lawre5ardless of their private opinions*1 and this wehave reiterated in the $''& case of People v.eneracion.


DEAT( PENALT- WAS NOT

ABOLIS(ED BUT MEREL- SUSPENDED

A readin5 of Section $' ($ of Article III willreadily show that there is really nothin5 thereinwhich e3pressly declares the abolition of the deathpenalty. 6he provision merely says that the deathpenalty shall not be imposed unless for compellin5

reasons involvin5 heinous crimes the /on5resshereafter provides for it and* if already imposed*shall be reduced to reclusion perpetua. 6helan5ua5e* while rather aw7ward* is still plainenou5h1. (People v. Jche5aray

68


69/236

DE)INITION O) (EINOUS CRIMES

1. . . the crimes punishable by death under thisAct are heinous for bein5 5rievous* odious and

hateful oenses and which* by reason of theirinherent or manifest wic7edness* viciousness*atrocity and perversity are repu5nant andoutra5eous to the common standards and norms ofdecency and morality in a >ust* civiliDed andordered society.1


W(AT ARE T(E CRIMES PUNIS(ABLE B-RECLUSION PERPETUA TO DEAT( UNDER RA6@52nder #.A.


70/236

airplane for public use! (d a buildin5 or factoryin the service of public utilities! (e a buildin5for the purpose of concealin5 or destroyin5evidence @r a crime! (f an arsenal* rewor7sfactory* or 5overnment museum! and (5 a

storehouse or factory of e3plosive materialslocated in an inhabited place! or re5ardless ofwhat is burned* if the arson is perpetrated bytwo or more persons (Sec. $!

' #ape attended by any of the followin5circumstancesG (a the rape is committed witha deadly weapon! (b the rape is committed by

two or more persons! and (c the rape isattempted or frustrated and committed withhomicide (Sec. $$!

$ Plunder involvin5 at least P& million (Sec.$%!

11) Importation of prohibited dru5s (Sec. $=!$% Sale* administration* delivery* distribution*

and transportation of prohibited dru5s (id.!$= ?aintenance of den* dive or resort for users

of prohibited dru5s (id.!$8 ?anufacture of prohibited dru5s (id.!$& Possession or use of prohibited dru5s in

certain specied amounts (id.!$) /ultivation of plants which are sources of

prohibited dru5s (id.

$9 Importation of re5ulated dru5s$ (Sec. $8!$' ?anufacture of re5ulated dru5s (id.!% Sale* administration* dispensation*

delivery* transportation* and distribution ofre5ulated dru5s (id.!

%$ ?aintenance of den* dive* or resort for

users of re5ulated dru5s (Sec. $&!%% Possession or use of re5ulated dru5s inspecied amounts (Sec. $)!

%= ?isappropriation* misapplication or failureto account dan5erous dru5s conscated by thearrestin5 oFcer (Sec. $9!

70


71/236

%8 Plantin5 evidence of dan5erous dru5s inperson or immediate vicinity of another toimplicate the latter (Sec. $'! and

%& /arnappin5 where the owner* driver oroccupant of the carnapped motor vehicle is

7illed or raped (Sec. %(People v. Jche5aray

W(AT ARE T(E MANDATOR-CRIMES PUNIS(ABLE B- MANDATOR-DEAT( PENALT- UNDER RA 6@5

@n the other hand* under #.A.


72/236

mentioned were present in the commission of theoense.

:hen the victim is 7illed or dies as aconseuence of the detention or is raped* or issub>ect to torture or dehumaniDin5 acts* the

ma3imum penalty of deathM shall be imposed.1(Sec.

$6& Destructive arson resultin# in deat%

1If as a conseuence of the commission of anyof the acts penaliDed under this Article* death

results* the mandatory penalty of death shall beimposed.1 (Sec. $

$7& Rape *it% t%e victim becomin# insane rape*it% %omicide and 8uali3ed

1:hen by reason or on the occasion of therape* the victim has become insane* the penaltyshall be death.

333 333 333

6he death penalty shall also be imposed if thecrime of rape is committed with any of thefollowin5 attendant circumstancesG

$. when the victim is under ei5hteen ($ years ofa5e and the oender is a parent* ascendant* step-parent* 5uardian* relative by consan5uinity oraFnity within the third civil de5ree* or thecommon-law spouse of the parent or the victim.%. when the victim is under the custody of the

police or military authorities.=. when the rape is committed in full view of thehusband* parent* any of the children or otherrelatives within the third de5ree of consan5uinity.8. when the victim is a reli5ious or a child belowseven (9 years old

72


73/236

&. when the oender 7nows that he is aUictedwith Acuired Immune Ceciency Syndrome (AICSdisease.). when committed by any member of the Armed;orces of the Philippines or the Philippine


74/236

operative the provision of the #evised Penal /odere5ardin5 the imposition of the ma3imum penalty!and (% other circumstances attend the commissionof the crime which indubitably characteriDe thesame as heinous in contemplation of #.A.


75/236

that can mar7 the victim for life. It is always anintrinsically evil act . . . an outra5e upon decencyand di5nity that hurts not only the victim but thesociety itself.1 (People v. Jche5aray

W(- CAPITAL PUNIS(MENTS(OULD NOT BE ABOLIS(ED

1/apital punishment ou5ht not to be abolishedsolely because it is substantially repulsive* ifinnitely less repulsive than the acts which invo7e

it. Ket the mountin5 Deal for its abolition seems toarise from a sentimentaliDed hyperfastidiousnessthat see7s to e3pun5e from the society all thatappears harsh and suppressive. If we are topreserve the humane society we will have to retainsuFcient stren5th of character and will to do theunpleasant in order that tranuillity and civilitymay rule comprehensively. It seems very li7ely thatcapital punishment is a . . . necessary* if limitedfactor in that maintenance of social tranuillity andou5ht to be retained on this 5round. 6o dootherwise is to indul5e in the lu3ury of permittin5 asense of false delicacy to rei5n over the necessityof social survival.1 (People v. Jche5aray

RA 6%2@ AS AMENDED B- RA 6@5W(EN PENALT- IN NEW LAW NOT

)A,ORABLETO ACCUSED IT S(OULD BE RETAINED

Appellant in this case was convicted and meted

the penalty of life imprisonment and ne of twentythousand pesos under #A )8%& for transportin5more or less ) 7ilos of mari>uana on +uly $''. #A9)&'* which too7 eect on Cecember =$H'=*amended the provisions of #A )8%&* increasin5 theimposable penalty for the sale or transport of 9&

75


76/236

5rams or more of mari>uana to reclusion perpetuato death and a ne ran5in5 from ve hundredthousand pesos to ten million pesos. Such penaltyis not favorable to the appellant as it carries theaccessory penalties provided under the #P/ and

has a hi5her amount of ne which in accordancewith A#6 %% of the same code should not be 5ivenretroactive eect. 6he court* therefore* nds andso holds that the penalty of life imprisonment andne in the amount of twenty thousand pesoscorrectly imposed by the trial court should beretained.

(PP v /arreon* $%H'H'9

COURTS S(OULD NOT BE CONCERNEDABOUT WISDOM! E))ICAC- OR MORALIT-O) LAWS

It is a well settled rule that the courts are notconcerned with the wisdom* eFcacy or morality oflaws. 6hat uestion falls e3clusively within theprovince of the Le5islature which enacts them andthe /hief J3ecutive who approves or vetoes them.6he only function of the >udiciary is to interpret thelaws and* if not in disharmony with the/onstitution* to apply them. And for the 5uidance

of the members of the >udiciary we feel itincumbent upon us to state that while they ascitiDens or as >ud5es may re5ard a certain law asharsh* unwise or morally wron5* and mayrecommend to the authority or departmentconcerned* its amendment* modication* or repeal*still* as lon5 as said law is in force* they must apply

it and 5ive it eect as decreed by the law-ma7in5body.(People v. eneracion

76


77/236

REASON )OR DURATION O) RECLUSIONPERPETUAO) K3 OR %3 -EARS

6he imputed duration of thirty (= years for

reclusion perpetua* therefore* is only to serve asthe basis for determinin5 the convict4s eli5ibility forpardon or for the application of the three-fold rulein the service of multiple penalties.

(People v. Lucas

ROBBER- WIT( (OMICIDE! NUMBER O)PERSONS ILLED DOES NOT ALTERC(ARACTERI1ATION O) T(E O))ENSEBUT CAN BE APPRECIATED AS AGGRA,ATINGCIRCUMSTANCE

:hile the number of persons 7illed does notalter the characteriDation of the oense as robberywith homicide* the multiplicity of the victims slainshould have been appreciated as an a55ravatin5circumstance. 6his would preclude an anomaloussituation where* from the standpoint of the 5ravityof the oense* robbery with one 7illin5 would betreated in the same way that robbery with multiple7illin5s would be.

(People . 6imple

ROBBER- WIT( (OMICIDE AND ROBBER-WIT( RAPE+ PRO,ISION O) ARTICLE 25% O)T(E RE,ISED PENAL CODE AS AMENDED B-REPUBLIC ACT 6@5 CANNOT BE APPLIED

RETROACTI,EL-+ CASE AT BAR.

2nder Article %'8 ($ of the #evised Penal/ode* robbery with homicide is punishable byreclusion perpetua to death. In view* however* ofthe rst para5raph of Section $'* Article III of the

77


78/236

$'9 /onstitution* which provides thatG 1Sec. $'.($ J3cessive nes shall not be imposed* nor cruel*de5radin5 or inhuman punishment inNicted.


79/236

6he Information* dated ?arch %8* $''%* leda5ainst Astor5a contains suFcient alle5ationsconstitutin5 5rave coercion* the elements of whichwere suFciently proved by the prosecution. ence*a conviction for said crime is appropriate under

Section 8* #ule $% of the $' #ules on /riminalProcedure.

(People -vs- Astor5a

ELEMENTS O) GRA,E COERCION

"rave /oercion or coaccion #rave has threeelementsG

a.6hat any person is prevented by anotherfrom doin5 somethin5 not prohibited by law*or compelled to do somethin5 a5ainst his orher will* be it ri5ht or wron5!

b.6hat the prevention or compulsion is eectedby violence* either by material force or sucha display of it as would produce intimidationand* conseuently* control over the will ofthe oended party! and

c. that the person who restrains the will andliberty of another has no ri5ht to do so or* inother words* that the restraint is not madeunder authority of a law or in the e3ercise ofany lawful ri5ht.

(People -vs- Astor5a

ACTUAL DETENTION OR LOCING UP! ANESSENTIAL ELEMENT O) IDNAPPING

79


80/236

Actual detention or 1loc7in5 up1 is the primaryelement of 7idnappin5. If the evidence does notadeuately prove this element* the accused cannotbe held liable for 7idnappin5. In the present case*the prosecution merely proved that appellant

forcibly dra55ed the victim toward a place only he7new. 6here bein5 no actual detention orconnement* the appellant may be convicted onlyof 5rave coercion.

(People -vs- Astor5a! ""# $$'9* Cecember %%*$''9

DANGEROUS DRUGS ACT O) $52 R.A. NO.6%2@+ SECTIONS $@ AND 23 T(EREO) ASAMENDED B- R.A. NO. 6@5.

In People vs. Martin /imon y /un#a* (".#.


81/236

dan5erous dru5s involved* each of the componentpenalties thereof 0 prision correccional prisionmayor and reclusion temporal 0 shall beconsidered as a principal imposable penaltydependin5 on the uantity* such that the uantity

of the dru5s enumerated in the second para5raphshould then be divided into three* with theresultin5 uotient* and double or treble the same*as the bases for determinin5 the appropriatecomponent penalty. (8 6he modifyin5circumstances in the #evised Penal /ode may beappreciated to determine the proper period of the

correspondin5 imposable penalty or even to eectits reduction by one or more de5rees! provided*however* that in no case should such 5raduation ofpenalties reduce the imposable penalty lower thanprision correccional. (& In appropriate instances*the Indeterminate Sentence Law shall be appliedand considerin5 that #.A.


82/236

mayor as minimum to si3 () years of prisioncorreccionalas ma3imum.

W(EN T(E)T O) MOTOR ,E(ICLE IS

0UALI)IED T(E)T. STRA- DECISION

In this case* the stolen property is a Kamaha #Smotorcycle bearin5 plate no. /Q-%'=% with sidecarvalued at P=*.. Since this value remainsundisputed* we accept this amount for the purposeof determinin5 the imposable penalty. In simple

theft* such amount carries the correspondin5penalty of prision mayor in its minimum andmedium periods to be imposed in the ma3imumperiod. /onsiderin5 that the penalty for ualiedtheft is two de5rees hi5her than that provided forsimple theft* the penalty of prision mayor in itsminimum and medium periods must be raised bytwo de5rees. 6hus* the penalty prescribed for theoense committed of ualied theft of motorvehicle is reclusion temporal in its medium andma3imum periods to be imposed in its ma3imumperiod. (PP -vs- Ricardo Dela Cru alias Pa*idManuel dela Cru alias Pa*id Danilo Dela Cru andJo%n Doe alias ,enry 0alinta*a= and >rlandoPadilla y Mendoa (ccused. R!C(RD> D"L( CR?@

alias Pa*id (ccused-(ppellant. G.R. 'o. 149


83/236

be eective upon approval and remain in force atall sta5es of the case* unless sooner cancelled*until the promul5ation of the >ud5ment of the#e5ional 6rial /ourt* irrespective of whether thecase was ori5inally led in or appealed to it.1 6his

amendment* introduced by S/ Administrative/ircular $%-'8 is a departure from the old ruleswhich then provided that bail shall be eective andremain in force at all sta5es of the case until its fulldetermination* and thus even durin5 the period ofappeal.

?oreover* under the present rule* for theaccused to continue his provisional liberty on thesame bail bond durin5 the period to appeal*consent of the bondsman is necessary. ;rom therecord* it appears that the bondsman* A;IS/@Insurance /orporation* led a motion in the trialcourt on +anuary )* $'9 for the cancellation ofpetitioners4 bail bond for the latter4s failure torenew the same upon its e3piration. @btainin5 theconsent of the bondsman was* thus* foreclosed.

$(niceto /abbun Ma#uddatu and Laureana/abbun Ma#uddatu Petitioners -vs- ,onorable

C>?R+ >A (PP"(L/ $Aourt% Division and People oft%e P%ilippines Respondents. G.R. 'o. 16


84/236

oense. It is therefore necessary to show that theattac7ers cooperated in such a way as to secureadvanta5e of their superiority in stren5th.1

In this case* appellants and their companions

purposely 5athered to5ether and armedthemselves to ta7e advanta5e of their combinedstren5th to ensure that #eynaldo Canao would beable to 7ill the victim without any interference fromother bystanders.

owever* not havin5 been alle5ed in the

Information* abuse of superior stren5th can only beconsidered as a 5eneric a55ravatin5 circumstance.$PP -vs- C!"L!+> 0?L?R(' ) R(M!R"@ and

L">'(RD> (L"'@?"L( ) C(/+!LL> (ccused-(ppellants. G.R. 'o. 116


85/236

$PP -vs- R>G"L!> G(L(M (ccused-(ppellant.G.R. 'o. 117:7B Aeb. 19 4BBB&

W(EN NIG(TTIME IS AGGRA,ATING

'/+('C!> M"R!'> and (R'?LA>/!"R> (ccused-(ppellants. G.R. 'o. 16464


86/236

W(- DWELLING IS AGGRA,ATING

16he home is a sort of sacred place for itsowner. e who 5oes to another4s house to slander

him* hurt him or do him wron5* is more 5uilty thanhe who oends him elsewhere.1

$PP -vs- J>/" E '"/+>R 0iF(/ (ccused-(ppellant. G.R. 'o. 141;6B Dec. 1


87/236

applies to crimes dened therein* includin5 rape*which were committed after its eectivity. Itcannot be applied retroactively because* to do so*would 5o a5ainst the constitutional prohibition onex post facto la*s. ;or this reason* in order for the

death penalty to be imposable* it is incumbentupon the prosecution to establish beyond a shadowof doubt that the case of the accused is alreadycovered by #epublic Act


88/236

$PP -vs- C,(R!+> !/?G M(G0('?(

G.R. 'o. 14 Dec. 6 1


89/236

Pre7ienial De"ree No. $&25PENALI1ING OBSTRUCTION O)

APPRE(ENSION AND PROSECUTION O)CRIMINAL O))ENDERS

:hereas* crime and violence continue toproliferate despite the sustained vi5orous eorts ofthe 5overnment to eectively contain them!

:hereas* to discoura5e public indierence orapathy tow

spl - judge pimentel notes

Documents