2016 Bar Exam Suggested Answers in Criminal Law by the UP Law Complex

Explain the application of the Indeterminate. Sentence Law (ISL). (5%)

SUGGESTED ANSWER

The court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the Revised Penal Code, and the minimum of which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law (special law); the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum. fixed by said law and the minimum shall not be less than the minimum term prescribed by the same (Section 1, ISL, Act No. 4103 as amended by Act No. 4225). The court must, instead of a single fixed penalty, except where the imposable penalty is one (1) year or less, determine two penalties, referred to in the indeterminate Sentence Law as the “maximum” and “minimum” terms.

II.

(A) Define malfeasance, misfeasance and nonfeasance. (2.5%)

(B) Differentiate wheel conspiracy and chain conspiracy. (2.5%)

SUGGESTED ANSWER

(A) “Malfeasance” is the doing of an act which a person ought not to do at all.

“Misfeasance” is the improper doing of an act which a person mayor might lawfully do.

“Nonfeasance” is the omission of an act which a person ought to do. — (Black’s Dictionary, 6th Edition, West Publishing 1990)

(B) There are two structures of multiple conspiracies, namely: wheel or circle conspiracy and chain conspiracy.

A “wheel conspiracy” occurs when there is a single person or group (the hub) dealing individually with two or more other persons or groups (the spokes). The spoke typically interacts with the hub rather than with another spoke, in the event that the spoke shares a common purpose to succeed; there is a single conspiracy. However, in the instances when each spoke is unconcerned with the success of the other spokes, there are multiple conspiracies.

A “chain conspiracy”, on the other hand, exists when there is successive communication and cooperation in much the same way as with legitimate business operations between manufacturer and wholesaler, then wholesaler and retailer, and then retailer and consumer (Estrada V. Sandiganbayan, G.R. No. 148965, February 26, 2002).

III.

Pedro is married to Tessie. Juan is the first cousin of Tessie, while in the market, Pedro saw a man stabbing Juan. Seeing the attack on Juan, Pedro picked up a spade nearby and hit the attacker on his head which caused the latter’s death.
Can Pedro be absolved of the killing on the ground that it is in defense of a relative? Explain. (5%)

SUGGESTED ANSWER

No. The relatives of the accused for purpose of defense of relative under Article 11 (2) of the Revised Penal Code are his spouse, ascendants, descendants, or legitimate, natural or adopted brothers or sisters, or of his relatives by affinity in the same degrees, and those by consanguinity within the fourth civil degree.

Relative by affinity within the same degree includes the ascendant, descendant, brother or sister of the spouse of the accused. In this case, Juan is not the ascendant, descendant, brother or sister of Tessie, the spouse of Pedro. Relative by consanguinity within the fourth civil degree includes first cousin. But in this case Juan is the cousin of Pedro by affinity but not by consanguinity, Juan, therefore, is not a relative of Pedro for purpose of applying the provision on defense of relative. Pedro, however, can invoke defense of a stranger. Under the revised Penal Code, a person who defends a person who is.not his relative may invoke the defense of a stranger provided that all its elements exist, to wit: (a) unlawful aggression, (b) reasonable necessity of the means employed to prevent or repel the attack; and (c) the person defending be not induced by revenge, resentment, or other evil motive.

Jojo and Felipa are husband and wife. Believing that his work as a lawyer is sufficient to provide for the needs of their family, Jojo convinced: Felipa to be a stay-at-home mom and care for their children. One day, Jojo arrived home earlier than usual and caught Felipa in the act of having sexual inter course with their female nanny, Alma, in their matrimonial bed. In a fit of rage, Jojo retrieved his revolver from inside the bedroom cabinet and shot Alma, immediately killing her.

(A) Is Art. 247 (death or physical injuries infiicted under exceptional
circumstances) of the Revised Penal Code (RPC) applicable in this case given that the paramour was of the same gender as the erring
spouse? (2.5%)

(B) Is Felipa liable for adultery for having sexual relations with Alma? (2.5%)

SUGGESTED ANSWER

(A) No. Art. 247 of the Revised Penal Code is not applicable.
Under the Revised Penal Code, for Art. 247 to apply, the offender must catch his or her spouse in the act of committing sexual intercourse with another person. In People of the Philippines v. Marciano Gonzales (G.R. No. 46310, October 31, 1939), the Supreme Court held that to avail of the privilege under Art. 247, the accused should surprise his wife in the “very act if sexual intercourse”. Sexual intercourse gener ally presupposes the penetration of the man’s sexual organ into that of a woman’s. In this case, the paramour was of the same gender as the erring spouse. As such, there is legally, no sexual intercourse to speak of, hence, Art. 247 is not applicable.

ALTERNATIVE ANSWER

(A) Yes, Art. 247 (death or physical injuries inflicted under exceptional circumstances) of the Revised Penal Code is applicable.
The requisites of Art. 247 are: (1) a legally married person surprises his spouse in the act of committing sexual intercourse with another person; (2) he or she kills any or both of them or inflicts upon any or both of them any serious physical injury “while in the act” or immediately thereafter; and (3) he has not promoted or facilitated the prostitution of his wife or that he or she has not consented to the infidelity of the other spouse. All the foregoing requisites are present in the case at hand. It is a given in the problem that Jojo caught Felipa and Alma in the “act of sexual intercourse.” The law did not qualify that the other person with whom the spouse be caught committing sexual intercourse be “male or female.” Hence, the gender of the paramour, Alma, being of the same gender as the erring spouse, Felipa, is immaterial, The answer given presupposes that Jojo and Felipa are legally married.

(B) No. Under Article 333 of the Revised Penal Code, adultery is
committed by any married woman who shall have sexual intercourse with a “man” not her husband. Thus, Felipa in having homosexual intercourse with Alma, a “woman,” is not committing adultery.

Governor A was given the amount of P10 million by the Department of Agriculture for the purpose of buying seedlings to be distributed to the farmers. Supposedly intending to modernize the farming industry in his . province, Governor A bought farm equipment through direct purchase from XY Enterprise, owned by his kumpare B, the alleged exclusive distributor of the said equipment. Upon inquiry, the Ombudsman discovered that Bhas a pending patent application of the said farm equipment. Moreover, the equipment purchased turned out to be overpriced.
What crime or crimes, if any, were committed by Governor A? Explain. (5%)

SUGGESTED ANSWER

Governor A committed the crimes of: (1) Technical Malversation; and (2) Violation of Sections 3 (e) and (g) of Republic Act No. 3019. Governor A committed the crime of illegal use of public funds or property punishable under Art. 220 of the Revised Penal Code. This offense is also known as technical malversation.

The crime has three elements: a) that the offender is an accountable public officer; b) that he applies public funds or property under his administration to some public use; and c) that the public use for which such funds or property had been applied is different from the purpose for which they were originally appropriated by law or ordinance (Ysidoro v. People, G.R. No. 192330; November 14, 2012).

The amount of P 10 M granted by the Department of Agriculture to Governor A, an accountable public officer, is specifically appropriated for the purpose of buying seedlings to be distributed to the farmers. Instead, Governor A applied the amount to acquire modern farm equipment through direct purchase from XY Enterprise owned by his kumpare. The law punishes the act of diverting public funds earmarked by law or ordinance for a specific public purpose to another public purpose, hence, the liability for technical malversation.

Governor A can also be held liable for Violation of Section 3 (e) of Republic Act No. 3019 or the Anti-Graft and Corrupt Practices Act; which has the following elements: (1) the accused is a public officer discharging administrative, judicial or official functions; (2) he must have acted with manifest partiality; evident bad faith or gross inexcusable negligence; and (3) his action caused any undue injury to any party, including the government, or gave any private party unwarranted benefits, advantage or preference in the discharge of his functions. The facts show that the first element is present. The second element is likewise present because, “through manifest partiality” in favoring his kumpare, Governor A did not hold a public bidding and directly purchased the farm equipment from the latter. With respect to the third element, Governor A’s actions caused undue injury to the government as well as the farmers who were deprived of the seedlings. His acts likewise gave his kumpare, a private party, the unwarranted benefit, advantage or preference, to the exclusion of other interested suppliers.

The act committed by the Governor is also in violation of Section 3 (g) of RA No. 3019 for entering a contract on behalf of the government which is . manifestly and grossly disadvantageous to the same.

VI.

Ofelia; engaged in the purchase and sale of jewelry, was charged with violation of PD 1612, otherwise known as the Anti-Fencing Law, for having been found in possession of recently stolen jewelry valued at P100,000.00 at her jewelry shop. Her defense is that she merely bought the same from Antonia and produced a receipt covering the sale. She presented other receipts given to her by Antonia representing previous transactions. Convicted of the charge, Ofelia appealed, arguing that her acquisition of the jewelries resulted from a legal transaction and that the prosecution failed to prove that she knew or should have known that the pieces of jewelry which she bought from Antonia were proceeds of the crime of theft.

(A) What is a “fence” under PD 1612? (2.5%)

(B) Is Ofelia liable under the Anti-Fencing Law? Explain. (2.5%)
SUGGESTED ANSWER

(A) Fencing is the act of any person who, with intent to gain for himself or for another, shall.buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft (Section 2 of PD 1612).

(B) No. Ofelia is not liable under the Anti-Fencing Law. While under the said law mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing, such evidence when sufficiently overturned constitutes a defense.

In this case, Ofelia’s defense that she merely acquired the jewelries through a legitimate transaction is sufficient. Further, there is no other circumstance as regards the jewelries which would indicate to Ofelia, an innocent purchaser, that the jewelries were the subject of theft. There was even a receipt produced by Ofelia for the transaction.

ALTERNATIVE ANSWER

(B) Yes. Under Section 5 of PD No. 1612, mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing. Failure to prove that Ofelia knows; or should have known that the jewelry is stolen, therefore, is not a defense since this element is presumed to be present under Section 5 because Ofelia is in possession of this stolen property. Moreover, there is no showing that Ofelia secured a permit or clearance from the PNP station commander of the place of sale required in Section 6 of PD No. 1612 (Suggested Answer by UP Law Center to a 1995 Bar question).

ALTERNATIVE ANSWER

(B) No. Although Ofelia as a possessor of a stolen property is presumed to have committed the crime of fencing such presumption is overcome by presentation of the receipts showing that her transaction is legitimate. The logical inference follows that Ofelia had no reason to suspect that the jewelry was stolen. Admittedly, there is no jurisprudence to the effect that a receipt is a sufficient defense against charges of fencing, but logically and for all practical purposes, such receipt is proof-although disputable-that the transaction in question is above-board and legitimate. Absent other evidence, the presumption of innocence remains (D.M. Consunji, Inc. v. Esguerra, G.R. No. 118590, July 30, 1996).

VII,

Val, a Nigerian, set up a perfume business in the Philippines. The investors would buy the raw materials at a low price from Val. The raw materials consisted of powders, which the investors would mix with water and let stand until a gel was formed. Vai made a written commitment to the investors that he would buy back the gel at a higher price, thus assuring, the investors of a neat profit. When the amounts to be paid by Val to the investors reached millions of pesos, he sold all the equipment of his perfume business, absconded with the money, and is nowhere to be found.
What crime or crimes were committed, if any? Explain. (5%)

SUGGESTED ANSWER

The crime of Qualified Piracy under Article 123 of the Revised Penal Code has been committed, the elements of piracy being present, namely, (1) that the vessel is on the high seas; (2) that the offenders are not members of its complement or passenger of the vessel; and (3) that the offenders (a) attack or seize that vessel or (b) seize the whole or part of the cargo of said vessel, its equipment or personal belongings of its complement or passengers. The latter act is committed when the offenders took away several crates containing valuable items and loaded them in their own motorboat.

The crime of piracy is qualified because: (1) the offenders have seized the vessel by boarding; and (2) the crime of piracy was accompanied by murder and physical injuries. The facts show that the offenders planted an explosive in the vessel which they detonated from a safe distance and the explosion killed ten (10) crewmen and injured fifteen (15) others. The number of persons killed on the occasion of piracy is not material. The law considers qualified piracy as a special complex crime regardless of the number of victims (People v. Siyoh, G.R. No. L-57292, February 18, 1986).

Angelino, a Filipino, is a transgender who underwent gender reassignment and had implants in different parts of her body. She changed her name to Angelina and was a finalist in the Miss Gay International. She came back to the Philippines and while she was walking outside her home, she was abducted by Max and Razzy who took her to a house in the province. She was then placed in a room and Razzy forced her to have sex with him at knife’s point. After the act, it dawned upon Razzy that Angelina is actually a male. Incensed, Razzy called Max to help him beat Angelina. The beatings that Angelina received eventually caused her death.

What crime or crimes, if any, were committed? Explain. (5%)

SUGGESTED ANSWER

Razzy is liable for kidnapping with homicide. Abducting Angelino is not forcible abduction since the victim in this crime must be a woman. Gender. reassignment will not make him a woman within the meaning of Article 342 of the Revised Penal Code. There is no showing, moreover, that at the time abduction is committed with lewd design; hence, his abduction constitutes illegal detention. Since Angelino was killed in the course of the detention, the crime constitutes kidnapping and serious illegal detention with homicide under Article 267. Having sexual intercourse with Angelino is not rape through sexual inter course since the victim in this crime must be a woman. This act is not rape through sexual assault, either, Razzy did not insert his penis into the anal orifice or mouth of Angelino or an instrument or object into anal orifice or genital orifice, hence, this act constitutes acts of lasciviousness under Article 336. Since the acts of lasciviousness is committed by reason or occasion of kidnapping, it will be integrated into one and indivisible felony of kidnapping with homicide (People v. De Leon, G.R. No. 179943, June 26, 2009; People v. Jugueta, G.R. No. 202124, April 05, 2016; People v. Laog, G.R. No. 178321, October 5, 2011; People v. Larronaga, G.R. Nos. 138874-75, February 3, 2004).
Max is liable for kidnapping with homicide as an accomplice since he concurred in the criminal design of Razzy in depriving Angelino his liberty and supplied the former material aid in an efficacious way by helping him beat the latter.

XII

Arnold, 25 years of age, was sitting on a bench in Luneta Park watching the statue of Jose Rizal when, without his permission, Leilani, 17 years of age, sat beside him and asked for financial assistance, allegedly for payment of her tuition fee, in exchange for sex. While they were conversing, police operatives arrested and charged him with violation of Section 10 of RA 7610 (Special Protection of Children against Child Abuse, Exploitation and Discrimination Act), accusing him of having in his company a minor, who is not related to him, in a public place. It was established that Arnold was not in the performance of a sociai, moral and legal duty at that time.
Is Arnold liable for the charge? Explain. (5%).

SUGGESTED ANSWER

No, Arnold is not liable. Under Section 10 of RA No. 7610, any person who shall keep or have in his company a minor, twelve (12) years or under or who in ten (10) years or more his junior in any public or private place, hotel, motel, beer joint, discotheque, cabaret, pension house, sauna or massage parlor, beach and/or other tourist resort or similar places is liable for child abuse.

Arnold is not liable for the charge. To be held liable under Section 10 (6) of RA No. 7610, it is indispensable that the child in the company of the offender must be 12 years or under or who in 10 years or more his junior in a public place. In this case, Leilani is 17 years of age, and only 8 years younger than Arnold.

Moreover, Leilani sat beside Arnold without his permission, hence, he is not in the company of a child in a public place.

Lastly, applying the episdem generis principle, Arnold is not liable for child abuse because Luneta is not a place similar to hotel, motel, beer joint, discotheque, cabaret, pension house, sauna or massage parlor, beach and/or other tourist resort.

XIII

Domingo is the caretaker of two (2) cows and two (2) horses owned by Hannibal. Hannibal told Domingo to lend the cows to Tristan on the condition that the latter will give a goat to the former when the cows are returned. Instead, Tristan sold the cows and pocketed the money. Due to the neglect of Domingo, one of the horses was stolen. Knowing that he will be blamed for the loss, Domingo slaughtered the other horse, got the meat, and sold it to Pastor. He later reported to Hannibal that the two horses were stolen.
(A) What crime or crimes, if any, did Tristan commit? Explain. (2.5%)

(B) What crime or crimes, if any, were committed by Domingo? Explain. (2.5%)

SUGGESTED ANSWER

(A) Tristan is liable for Estafa through Misappropriation under Article 315 of the Revised Penal Code. He received the cows under obligation involving the duty to return the same thing deposited, and acquired legal or juridical possession in so doing, since their transaction is a commodatum. Selling the cows as if he owned it constitutes misappropriation or conversion within the contemplation of Article 315.

(B) Domingo is liable for qualified theft under Article 308 of the Revised Penal Code. Although Tristan received the horse with the consent of the owner, Hannibal, his possession is merely physical or de facto since the former is an employee of the latter. Slaughtering the horse, which he physically possessed, and selling its meat to Pastor shall be considered as taking without consent of the owner with intent to gain, which constitutes theft (Balerta v. People, G.R. No. 205144, November 26, 2014), Since the horse is accessible to him, the theft is qualified by the circumstance of abuse of confidence (Yongco v. People, G.R. No. 209373, July 30, 2014); Further, Domingo.committed the crime of violation of the Anti-Cattle Rustling Law of 1974 (P.D. No. 533). Cattle rustling is the taking away by any means, method or scheme, without the consent of the owner/ raiser, of large cattle, which includes cows and horses, whether or not for profit or gain, or whether committed with or without violence against or intimidation of any person or force upon things. It includes the killing of large cattle, or taking its meat or hide without the consent of the owner/raiser.

XIV

Dimas was arrested after a valid buy-bust operation. Macario, the policeman who acted as poseur-buyer, inventoried and photographed ten (10) sachets of shabu in the presence of a barangay tanod. The inventory was signed by Macario and the tanod, but Dimas refused to sign. Aş Macario was stricken with flu the day after, he was able to surrender the sachets to the PNP Crime Laboratory only after four (4) days. During pre-trial, the counsel de oficio of Dimas stipulated that the substance contained in the sachets examined by the forensic chemist is in fact methamphetamine hydrochloride or shabu. Dimas was convicted of violating Section 5 of RA 9165. On appeal, Dimas questioned the admissibility of the evidence because Macario failed to observe the requisite “chain of custody” of the alleged “shabu” seized from him. On behalf of the State, the Solicitor General claimed that despite non-compliance with some requirements, the prosecution was able to show that the integrity of the substance was preserved. Moreover, even with some deviations from the requirements, the counsel of Dimas stipulated that the substance seized from Dimas was shabu so that the conviction should be affirmed.

(A) What is the “chain of custody” requirement in drug offenses? (2.5%)

(B) Rule on the contention of the State. (2.5%)

SUGGESTED ANSWER

(A) To establish the chain of custody, the prosecution must show the movements of the dangerous drugs from its confiscation up to its presentation in court. The purpose of establishing the chain of custody is to ensure the integrity of the corpus delicti (People v. Magat, G.R. No. 179939, September 29, 2008). The following links that must be established in the chain of custody in a buy-bust situation are: first, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer; third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the turnover and submission of the marked illegal drug seized from the forensic chemist to the court (People v. Kamad, G.R. No. 174198, January 29, 2010)
To establish the first link in the chain of custody, and that is the seizure of the drug from the accused, the prosecution must comply with Section 21 of RA No. 9165, which requires that the apprehending officer after the confiscation of drug must immediately physically inventory and photograph the same in the presence of the accused or the person from whom such items were confiscated, or his representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof and within twenty-four (24) hours upon such confiscation, the drug shall be submitted to the.PDEA Forensic Laboratory for examination.

(B) The contention of the State is meritorious. Macario, the policeman failed to comply with Section 21 of RA NO 9165 since the inventory and photograph of the drugs was only made in the presence of barangay tanod and the same was not submitted to the PNP Crime Laboratory within 24 hours. The rule is settled that failure to strictly comply with Section 21(1), Article il of R.A. No. 9165 does not necessarily render an accused’s arrest illegal or the items seized or confiscated from him inadmissible. The most important factor is the preservation of the integrity and evidentiary value of the seized item. Moreover, the issue of non-compliance with Section 21 of RA No. 9165 cannot be raised for the first time on appeal (People v. Badilla, G.R. No. 218578, August 31, 2016).

Pedro, Pablito, Juan and Julio, all armed with bolos, robbed the house where Antonio, his wife, and three (3) daughters were residing. While the four were ransacking Antonio’s house, Julio noticed that one of Antonio’s daughters was trying to escape. He chased and caught up with her at a thicket somewhat distant from the house, but before bringing her back, raped her.

(A) What crime or crimes, if any, did Pedro, Pablito, Juan and Julio
commit? Explain. (2.5%)
(B) Suppose, after the robbery, the four took turns in raping the three
daughters inside the house, and, to prevent identification, killed the whole family just before they left. What crime or crimes, if any, did the four malefactors commit? (2.5%)

SUGGESTED ANSWER

(A) julio is liable for special complex crime of robbery with rape since he raped the daughter of Antonio on occasion or by reason of robbery. Even if the place of robbery is different from that of rape, the crime is still robbery with rape since what is important is the direct connection between the two crimes (People v. Conastre, G.R. No. L-2055, December 24, 1948). Rape was not separate by distance and time from the robbery.

Pedro, Pablito and Juan are liable for robbery by band. There is band in this case since more than three armed malefactors take part in the commission of a robbery. Under Article 296 of the Revised Penal Code, any member of a band, who is present at the commission of a robbery by the band, shall be punished as principal of any of the assaults committed by the band, unless it be shown that he attempted to prevent the same. The assault mentioned in Article 296 includes rape (People v. Hamiana, G.R. Nos. L-3491-94, May 30, 1971). They are not liable, however, for rape under Article 296 since they were not present when the victim was raped and thus, they had no opportunity to prevent the same. They are only liable for robbery by band (People v. Anticamaray, G.R. No. 178771, June 8, 2011).

(B) They are liable for a special complex crime of robbery with homicide.
In this special complex crime, it is immaterial that several persons are killed. It is also immaterial that aside from the homicides, rapes are committed by reason or on the occasion of the crime. Since homicides are committed by or on the occasion of the robbery, the multiple rapes shall be integrated into one and indivisible felony of robbery with homicide (People v. Diu, G.R. No. 201449, April 3, 2013).

XVI

A is the president of the corporate publisher of the daily tabloid, Bulgar; B is the managing editor, and C is the author/writer. In his column, Direct Hit, Cwrote about X, the head examiner of the BIR-RDO Manila as follows:

“Itong si-X ay talagang BUWAYA kaya ang logo ng Lacoste T shirt niya ay napaka suwapang na buwaya. Ang nickname niya ay si Atty. Buwaya. Ang PR niya ay 90% sa bayad ng taxpayer at ang para sa RP ay 10% lang. Kaya ang baba ng collection ng RDO niya. Masyadong magnanakaw si X at dapat tanggalin itong bundat na bundat na buwaya na ito at napakalaki na ng kurakot.”

A, Band C were charged with libel before the RTC of Manila. The three (3) defendants argued that the article is within the ambit of qualified privileged communication; that there is no malice in law and in fact; and, that – defamatory comments on the acts of public officials which are related to the discharge of their official duties do not constitute libel.
Was the crime of libel committed? If so, are A, B, and Cail liable for the crime? Explain. (5%)

SUGGESTED ANSWER

Yes. The crime of libel is committed. Fair comment on acts of public officers related to the discharge of their duties is a qualified privileged communication, hence, the accused can still be held liable for libel if actual malice is shown. In fair comment, actual malice can be established by showing that comment was made with knowledge that it was false or with reckless disregard of whether it was false or not (Guingguing v. the Honorable Court of Appeals, G.R. No. 128959, September 30, 2005). Journalists bear the burden of writing responsibly when practicing their profession, even when writing about public figures or matters of public interest. The report made by C describing a lawyer in the Bureau of Customs as corrupt cannot be considered as “fair” and “true” since he did not do research before making his allegations, and it has been shown that these allegations were baseless. The articles are not “fair and true reports,” but merely wild accusations. He has written and published the subject articles with reckless disregard of whether the same were false or not (Erwin Tulfo v. People, G.R. No. 161032, September 16, 2008). A, president of the publishing company, B, managing editor, and C, writer of the defamatory articles, are all liable for libel. Under Article 360 of the Revised Penal Code, the publisher, and editor of newspaper, shall be responsible for the defamations contained therein to the same extent. The law makes the publisher and editor liable for libel as if they were the author (Tulfo v. People, supra).

XVII

Braulio invited lulu, his I l-year old stepdaughter; inside the master. bedroom. He pulled out a knife and threatened her with harm unless she submitted to his desires. He was touching her chest and sex organ when his wife caught him in the act. The prosecutor is unsure whether to charge Braulio for acts of lasciviousness under Art. 336 of the RPC; for lasciv ious conduct under RA 7610 (Special Protection against Child Abuse, Exploitation and Discrimination Act); or for rape under Art. 266-A of the RPC. What is the crime committed? Explain. (5%)

SUGGESTED ANSWER

The acts of Braulio of touching the chest and sex organ of Lulu, who is under 12 years of age, are merely acts of lasciviousness and not attempted rape because intent to have sexual intercourse is not clearly shown (People v. Banzuela, G.R. No. 202060, December 11, 2013). To be held liable of attempted rape, it must be shown that the erectile penis is in the position to penetrate (Cruz v. People, G.R. No. 166441, October 8, 2014) or the offender actually commenced to force his penis into the victim’s sexual organ (People v. Banzuela, supra).

The same acts of touching the chest and sex organ of Lulu under psychological coercion or influence of her stepfather, Braulio, constitutes sexual abuse under Section 5 (b) of RA No. 7610 (People v. Opiana, G.R. No. 133922, February 12, 2001),

Since the requisites for acts of lasciviousness under Article 336 of the Revised Penal Code are met, in addition to the requisites for sexual abuse under Section 5 of RA No. 7610, and the victim is under 12 years of age, Braulio shall be prosecuted for acts of lasciviousness under Revised Penal Code but the penalty imposable is that prescribed by RA No. 7610 (Amployo v. People, G.R. No. 157718, April 26, 2005). Under Section 5 (6) of RA No: 7610, when the victim (child subjected to sexual abuse) is under 12 years of age, the perpetrators shall be prosecuted (for acts of lascivi ousness) under Article 336 of the Revised Penal Code: Provided, That the penalty for lascivious conduct when the victim is under 12 years of age shall be reclusion temporal in its medium period.

XVIII

Lina worked as a housemaid and yaya of the one week old son of the spouses John and Joana. When Lina learned that her 70-year old mother was seriously ill, she asked John fora cash advance of P20,000.00, but the latter refused. In anger, Lina gagged the mouth of the child with stockings, placed him in a box sealed it with masking tape, and placed the box in the attic. Lina then left the house and asked her friend Fely to demand a “P20,000.00 ransom for the release of the spouses’ child to be paid within twenty-four hours. The spouses did not pay the ransom. After a couple. of days, John discovered the box in the attic with his child already dead. According to the autopsy report, the child died of asphyxiation barely minutes after the box was sealed.

What crime or crimes, if any, did Lina and Fely commit? Explain. (5%)

SUGGESTED ANSWER

Lina is liable for murder. Gagging the mouth of the child with stockings, placing him in a box, sealing it with masking tape, and placed the box in the attic were only methods employed by the defendant in committing : murder qualified by the circumstance of treachery (People v. Lora, G.R. No. L-49430, March 30, 1982). Taking advantage of the defenseless condition of the victim by reason of his tender age in killing him is treachery (People v. . Fallorina, G.R. No. 137347, March 4, 2004). She is not liable for kidnapping with murder, the essence of which is the actual confinement or restraint of the victim or the deprivation of his liberty. In this case, the victim was not deprived of liberty since he immediately died. The demand for ransom did not convert the offense into kidnapping with murder. The defendant was well aware that the child would be suffocated to death in a few moments after she left: The demand for ransom is only a part of the diabolic scheme of the defendant to murder the child, to conceal his body and then demand money before the discovery of the cadaver (People v.Lora; supra). Fely is not liable for murder as principal or accomplice. Since Fely did not participate in the actual killing of the child, she can only be held liable for murder as principal or accomplice on the basis of conspiracy or community of design. But in this case, there is neither conspiracy nor community of design to commit murder since her criminal intention pertains to kidnapping for ransom. Moreover, her participation of demanding ransom for the release of the child is not connected to murder Neither is Fely liable for kidnapping for ransom. Her criminal mind to assist Lina in committing kidnapping for ransom is not constitutive of a felony. Mens rea without actus reus is not a crime.

XIX

Romeo and Julia have been married for twelve (12) years and had two (2) children. The first few years of their marriage went along smoothly. However, on the fifth year onwards, they would often quarrel when Romeo comes home drunk. The quarrels became increasingly violent, marked by quiet periods when Júlla would leave the conjugal dwelling. During these times of quiet, Romeo would “court” Julia with flowers and chocolate and convince her to return home, telling her that he could not live without her; or Romeo would ask Julia to forgive him, which she did, believing that it she humbled herself, Romeo would change: After a month of marital bliss, Romeo would return to his drinking habit and the quarrel would start 7 again; verbally at first, until it would escalate to physical violence. One night, Romeo came home drunk and went straight to bed. Fearing the onset of another violent fight, Julia stabbed Romeo while he was asleep. A week later, their neighbors discovered Romeo’s rotting corpse on the marital bed. Julia and the children were nowhere to be found. Julia was charged with parricide. She asserted “battered woman’s syndrome” as her defense.

(A) Explain the “cycle of violence.” (2.5%)

(B) is Julia’s “battered woman’s syndrome” defense meritorious? Explain. (2.5%)

SUGGESTED ANSWER

(A) The battered woman syndrome is characterized by the so-called
“cycle of violence,” which has three phases:

(1) the tension-building phase; (2) the acute battering incident; and (3) the tranquil, loving (or, at least, nonviolent) phase. During the tension-building phase, minor battering occurs-it could be verbal or slight physical abuse or another form of hostile behavior. The woman tries to pacify the batterer through a kind, nurturing behavior; or by simply staying out of his way. The acute battering incident is characterized by brutality, destructiveness and, sometimes, death. The battered woman deems this incident as unpredictable, yet also inevitable. During this phase, she has no control; only the batterer may put an end to the violence. The final phase of the cycle of violence begins when the acute battering incident ends. During this tranquil period, the couple experience profound relief.

(B) Yes. Under Section 3 (c) of RA NO. 9262, “Battered Woman Syndrome” refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of “cumulative abuse”. Under Section 3 (b), “Battery” refers to an act of inflicting physical harm upon the woman or her child resulting in physical and psychological or emotional distress (Section 3). In sum, the defense of Battered Woman Syndrome can be invoked if the woman in marital relationship with the victim is subjected to cumulative abuse or battery involving the infliction of physical harm resulting to the physical and psychological or emotional distress. Cumulative means resulting from successive addition. In sum, there must be “at least two battering episodes” between the accused and her intimate partner and such final episode produced in the battered person’s mind an actual fear of an imminent harm from her batterer and an honest belief that she needed to use force in order to save her life (People v. Genosa, G.R. No. 135981, January 15, 2004). In this case, because of the battering episodes, Julia, feared the onset of another violent fight and honestly believed the need to defend herself even if Romeo had not commenced an unlawful aggression. Even in the absence of unlawful aggression, however, Battered Woman Syndrome is a defense. Under Section 27 of RA No. 9262, Battered Woman Syndrome is a defense notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code such as unlawful aggression (Section 26 of RA No. 9262).

A, an OFW, worked in Kuwait for several years as a chief accountant, religiously sending to his wife, B, 80% of all his earnings. After his stint abroad, he was shocked to know that B became the paramour of a married man, C, and that all the monies he sent to B were given by her to C. To avenge his honor, A hired X, Y and Z and told them to kidnap C and his wife, D, so that he can inflict injuries on C to make him suffer, and humiliate him in front of his wife, X, Y and Z were paid P20,000. Each and were promised a reward of P50,000.00 each once the job is done. At midnight, A, with the fully armed X, Y and Z, forcibiy opened the door and gained entrance to the house of C and D. C put up a struggle before he was subdued by A’s group. They boarded C and D in a van and brought the two to a small hut in a farm outside Metro Manila. Both hands of C and D were tied. With the help of X, Y and Z, A raped D in front of C. X, Y and Z then took turns in raping D, and subjected C to torture until he was black and blue and bleeding profusely from several stab wounds. A and his group set the hut on fire before leaving, killing both C and D. X, Y and Z were paid their reward. Bothered by his conscience, A surrendered the next day to the police, admitting the crimes he committed.

As the RTC judge, decide what crime or crimes were committed by A, X, Y and Z, and what mitigating and aggravating circumstances will be applied in imposing the penalty. Explain. (5%)

SUGGESTED ANSWER

A, X, Y and Z are liable for two counts of kidnapping with murder qualified by means of fire, since C and D were killed in the course of the detention. In a special complex crime of kidnapping with murder, it is immaterial that other crimes were committed such as multiple rapes and arson.

Since multiple rapes and arson are committed by reason or on occasion of kidnapping, they shall be integrated into one and indivisible felony of kidnapping with murder (People v. Larranaga, G.R. Nos. 138874-75, January 31, 2004).

The mitigating circumstances of passion and voluntary surrender can be appreciated in favor of A. The aggravating circumstances of unlawful entry, by means of fire, and treachery can be appreciated against A, X, Y and Z.

PINAY JURIST

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2016 Bar Exam Suggested Answers in Criminal Law by the UP Law Complex

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