CRIMINAL LAW REVIEW BULLETS ATTY. LEONOR D. BOADO 1.

Fourth theory of criminal law - utilitarian or protective theory purpose is to impose the penalty against the actual and potential wrongdoers. It should not favor opportunism and materialism. 2. Pardon is a private act of the President and must be proved; amnesty is his public act, and must be judicially noticed. 3. Equipoise rule: if evidence of the prosecution and the defense is equally balanced, acquittal is in order for charge is not proved beyond reasonable doubt. 4. Rule that all doubts be construed in favor of accused are on two matters: in case law is ambiguous and if evidence is equipoised. 5. One penal law can have both prospective and retroactive application as long as either way, the effect favors the accused. Example: R.A. 8294 on illegal possession of firearms. 6. Criminal intent is generally presumed from the voluntary commission of an unlawful act. Ex. Cocking a firearm and firing it killing another proves intent to kill. 7. Presumption of criminal intent does not apply if the act is equivocal - the specific criminal intent must be proved. Example physical injuries vs. attempted/frustrated killing; attempted rape vs. acts of lasciviousness; grave coercion vs. kidnapping.

8. Culpa and mala prohibita are committed without criminal intent. 9. Culpa in Art. 3 is a mode to commit a crime; Art. 365, it is a crime. 10. Aberratio ictus, the actual and intended victims are both at the situs of crime; in error in personae, the intended victim is absent. 11. Treachery is appreciated although there is aberratio ictus. 12.Mistake of identity is not synonymous with mistake of fact. In the former there is criminal liability; the latter is absolutory. 13.Impossible crime is not a crime. It is not the act [object] that is punished but the actor [subject] to subdue his criminal tendency. 14.Offender should not be aware that the crime is impossible, e.g., there can be no intent to kill if he knows that the victim is dead. 15.The overt act a principal in conspiracy consists of active participation in the commission of crime, giving moral assistance to or exerting moral ascendancy over the other conspirators. 16.Conspiracy is not an aggravating circumstance. 17.Only the actual perpetrators are liable for acts beyond the agreement of the conspirators. 18.Unlawful aggression per se is not mitigating; it is incomplete justifying in the form of unlawful aggression that is mitigating. 19.Art. 10(a) means that special law prevails over general law; Art. 10(b) is the soul of the article "the code shall be supplementary" to special laws, unless the latter specifically provide otherwise.

20.When special laws use the nomenclature of RPC penalties it shows the intent to make the RPC suppletory. In such case, when ISLaw applies, the rules for RPC shall be followed. 21.Abolition of death penalty did not change classification of heinous crimes for purposes of civil liability ex-delicto. 22. Generally, crimes mala in se involve moral turpitude while crimes mala prohibita do not. 23. Crimes under special laws are not always mala prohibita as in mere amendments of the RPC, e.g., cattle-rustling. 24. Malum in se does not absorb malum prohibitum and viceversa. Thus, simultaneous prosecution is possible for estafa and BP 22 or illegal recruitment; reckless imprudence and mining law. 25.'Aggravating circumstances" is liberally construed to include the circumstances Art. 15 for purposes of the award of damages. Otherwise, it is strictly construed to include those in Art. 14 only. 26.Arias Doctrine excuses head of public office who rely on subordinates when approving transactions in good faith. (ministerial duty concept) 27.Accident and self-defense are incompatible defenses. Accident presupposes lack of intention; self-defense involves voluntariness only that it is induced by necessity. (Lao-as, June 2001) 28.The graver includes the lesser. When the crime charged is different from what is proved, conviction is possible so long as the lesser is necessarily included in the graver.

29.Inducer is a principal if he is a mastermind; accomplice if his inducement is material, significant and efficacious in the commission of the crime but not indispensable; not liable if his utterance is a mere careless statement not meant to be obeyed. 30.Cooperator a principal if cooperation is indispensable; crime cannot be committed without his cooperation; accomplice if the cooperation is dispensable or the crime would still be committed without him. 31.The penalty for each crime in Book II is imposed: (a) as principal penalty; (b) in the consummated stage; (c) on the principal offender; and (d) the maximum imposable for specific offense. 32. In determining next lower degree, penalties prescribed are deemed to be one degree even if composed of one or two periods. Ex. lower than arresto mayor max is arresto mayor med; lower than arresto mayor med and max is arresto menor max and arresto mayor min. 33. There are three scales of penalties in the RPC: a. Art. 25 for principal and accessory penalties b. Art. 70 for multiple sentences, including the 3-fold rule c. Art. 71 for applying the rules on lowering penalties [Art. 61 in relation to 50-57] 34. There is no automatic review of reclusion perpetua.

35. The 30-year service qualifies convict for pardon and is the equivalent of pena perpetua in computing the three-fold penalty; the 40 year duration is the maximum that can be served. 36. The other way of asking: "What are the exceptions from ISL?" is "When will a straight penalty be imposed?" 37. A recidivist and a parolee is entitled to ISLaw but not probation because ISLaw is mandatory while probation is a privilege; ISLaw is not applied for but probation must be applied for. 38. Per par. 1, Art. 63 the single indivisible penalty of reclusion perpetua is an exception from the ISLaw. 39. ISLaw applies for penalties imposed on complex crimes and those as a result of plea bargaining. 40. Penalty must be imprisonment; otherwise ISLaw does not apply. 41. For multiple sentences in probation, the penalties imposed should be taken separately for P.D. 968 uses "maximum," not total. "Previous" should refer to conviction not to offenses. 42. Subsidiary penalty applies in violation of special laws. 43. Modifying circumstances are not considered in culpa.

44. There are five kinds of multiplicity of offenses: compound, complex, composite, continued and continuing crimes. Each is made up of more than one crime with a single penalty. 45. No complex crime in Art. 48 if: (a) 1st crime is element of 2nd; (b) the two crimes have same elements; (c) 2nd crime is to conceal the 1st. 46. Sufficient provocation must be immediate; immediate vindication is not immediate but only proximate. 47. Surrender is no longer voluntary if a warrant of arrest is issued. 48. No pretermission of holidays in prescription of crime and penalty. Prescription is automatic even if last day is a Sunday or a holiday. 49. To be liable for the death of a person with lingering illness, the acts of violence on him must facilitate, hasten, or be the proximate cause of the death of the victim. 50. Preventive penalties (suspension and preventive imprisonment) are not penalties for not imposed after trial on the merits. 51. Error to lump all kinds of damages actual, moral and exemplary into one amount for they have different bases and proof required.

52. In statutory rape, the only proof required is sexual congress with a girl less than 12 for she cannot give valid consent. 53. Moral and physical ascendancy in incestuous rape of minors substitutes the force and intimidation required. 54. Sexual congress with consent of child less than 12 is rape; with over 12 and under 18, seduction; with exactly 12, child abuse. 55. Presumption of law is based on prima facie evidence.. The facts proved furnish the basis of the presumption. It does not negate but counterbalances the presumption of innocence. 56. R.A.9344 did not repeal PD 603 and did not remove minor's disqualification from suspended sentence if (a) crime committed is punishable with death or life imprisonment; (b) has once given suspended sentence or (c) he was convicted by Military Tribunal. 57. Punishable means possible not actual sentence given on minor. 58. Severity of sentence is not measured by duration but by degree of deprivation of liberty, e.g. destierro vis--vis arresto mayor. 59. Band vs. aid of armed men vs. organized crime syndicate:

Members of band and organized crime are principal; those in aid of armed men are accomplices Band is composed of more than 3 armed malefactors; organized crime syndicate at least 2 persons; armed men not numbered Members of organized crime not required to be armed but must be formed for crimes of gain; members of band and armed men are required to be armed but not particularly for crimes of gain 60. Status crimes are not crimes if committed by adults. Minors are exempt for: status crimes; vagrancy and prostitution; mendicancy (PD 1563) and snuffing of rugby (PD 1619) 61. Amnesty is public act of the President, judicial notice mandatory; absolute pardon is his private act and must be proved. 62. The Constitution, placed death penalty under suspensive condition; R.A. 9346 killed the death penalty. 63. Kinds of direct assault: (1) Employ force or intimidation without public uprising to attain any of purposes of rebellion and sedition; cannot be committed during rebellion. (2) Attack, employ force, seriously intimidate or resist any person in authority or his agents, while in the performance of official duties, or on occasion thereof.

64. Perjury is willful and corrupt assertion of a falsehood under oath or affrimation administered by authority of law on a material matter. It is an obstruction of justice. Assertion of belief is not perjury. There must be false statement of material matter. 65. Unjust vexation exists even without the element of restraint or compulsion since term is broad enough to include any act which unjustly irritates or annoys an innocent person. No need to allege malice, restraint or compulsion in the information. 66. Information for attempted rape can convict for unjust vexation. 67. Res judicata in prison grey is the equivalent of double jeopardy. 68. Two kinds of publicoffice related crimes: a. Public office is constituent element as defined in the statute and the offense cannot exist without the office. Ex. Malversation. There is no need to allege intimate conncetion between crime and the office b. Offenses or felonies intimately connected with the public office and perpetrated while officer is in performance of his official functions through improper/irregular conduct. Must be alleged in Information.

69. In technical malversation or illegal use of public funds, the public officer does not derive benefit or gain from the funds or property. As public fund is applied to another public purpose which is not illegal per se, presumption of criminal intent does not operate. 70. If any other crime is committed, use of unlicensed firearm absorbed no liability for firearm and not aggravating. 71. Other crime need not be committed using the unlicensed firearm. 72. Presumed malice or malice in law excepts private communication made by any person to another in the performance of any legal, moral or social duty; a fair and true report in good faith of official proceedings not confidential in nature and fair commentaries on matters of public interest. 73. These 3 exceptions are qualifiedly privileged statements actionable if malice in fact can be proved. Absolutely privileged statements like court pleadings and parliamentary statements not actionable. 74. Truth is not a defense in libel except statements against public officials and public figures; burden is on them to disprove the truth. 75. The wife of the offended in libel is a third person for

purposes of the requirement of publication in libel cases. 76. Fine is a penalty, thus the directive to impose fine on libel [and BP 22] does not decriminalize the felonies. Not judicial legislation. 77. The only reason for dishonor of check is lack of fund. If for other reasons like forgery, BP 22 does not apply. 78. Notice of dishonor must be in writing. An oral notice is not sufficient for purposes of BP 22 violation. 79. Felonious taking is the act of depriving another of possession and dominion of movable property without his privity and consent and without animus revertendi. Unlawful taking may be in any of: a. Owner or juridical possessor does not give consent to taking; b. If the consent was given, it was vitiated; or c. Where an act by the receiver soon after the actual transfer of possession constitutes unlawful taking. The receiver's act could be considered as executed without consent of the giver. 80. Corruption of minor is facilitating and promoting the prostitution of a minor to satisfy the lust of another;

white slave trade is profiting from the prostitution of any person who is not a minor 81. The 4 elements involved in medical negligence cases are duty, breach, injury, and proximate causation. 82. Medical malpractice requires expert testimony except when res ipsa loquitor applies which can be given by ordinary laymen like when a foreign object (scissor, gauze, etc.) is left in the body. 83. Rights of persons under custodial investigation begin when the investigation ceases to be a general inquiry but focuses on suspect. 84. Investigation must be carried out by law enforcers; if others like reporters and government auditors, not custodial investigation. 85. Arrest does not require the application of actual force, manual touching of the body, physical restraint or a formal declaration of arrest. Includes invitation. 86. Lawful possession of a thing is presumed; but possessor of a recently stolen article is also presumed to be the stealer. 87. Presumption that person possessing personal effects belonging to a person robbed or killed is the offender is limited to cases where possession is unexplained or the explanation implausible.

88. Carrying in passenger aircraft corrosive, flammable, explosive, or poisonous substance even if only to test capability of airport personnel to detect such items violates Anti-hijacking law. 89. Making threats or pranks orally, thru mail, telephone, printed materials and etc. violates PD 1727 (rumor mongering) 90. Trafficking in persons includes recruiting, transporting persons for employment, mail order bride, travel and tours package, for prostitution, slavery, debt bondage, sale of body organs etc., recruiting baby makers, adopting a child for armed conflict here or abroad. 91. Violence against woman or child requires that the offender and the offended have or had dating relationship over time and on a continuing basis. 92. Battered woman who is not wholly excusable for killing her batterer enjoys 2 mitigating circumstances: psychological paralysis and passion and obfuscation. 93. One becomes a battered woman if she has undergone completely the cycle of violence which has three phases at least twice. 94. Transactions covered by Anti-money laundering are:

a. Covered total amount exceeds P500,000 within 1 banking day b. Suspicious regardless of amount if amount involved beyond client's capacity; client not properly identified; transaction related to unlawful activity, and analogous situations. 95. Transaction both covered and suspicious must be reported as suspicious, hence the amount is immaterial. 96. Any deposit or investment in banking/nonbank financial institution can be examined upon order of court. 97. No court required for: a. order is

kidnapping for ransom and

b. drug trafficking related offenses

c. hijacking, destructive arson and murder d. acts by terrorists against non-combatants and similar targets 98. No praeter intentionem in violations of Anti-hazing law. The presence of any person during hazing is prima facie evidence of participation as principal unless he prevented commission of acts

99. An employee of recruitment agency who actively and consciously participates in recruitment with knowledge of the business, its purpose and effect, contributing his efforts to its conduct, however slight is a principal. If he just acted under orders of superiors, unaware that his act is criminal, he is not liable. 100. Dispositive portion of the decision should contain the Section and Article number of RA 9165 violated. 101. Possession of shabu is penalized with imprisonment and fine. Fine of must be added to the prison term imposed. 102. The Statement of Assets and Liabilities required of public officers and employees does not violate the due process clause, the warranty against unreasonable searches and seizures and the right to self incrimination because the information required is not purely private following the principle of public office is a public trust; this is a reasonable safeguard against the temptation for graft; and there is no cases filed yet against the official as to make the rule on selfincrimination operative. 103. Cash advances to finance the traveling expenses of employees amounts to a loan hence failure to liquidate or settle

the same would not amount to estafa. 104. The Ponzi scheme or pyramiding is an investment program that offers impossibly high returns to early investors out of the capital contributed by later investors. The crime committed by the entity is syndicated estafa under PD No. 1689. 105. The accused in fencing should otherwise be an accessory. If he were a principal or accomplice, his crime would fall under theft or robbery. 106. Fencing is not a continuing crime but is distinct from robbery or theft. Thus, the fence can be prosecuted where he took hold of the property, not where this was stolen. 107. Fencing involves moral turpitude. It is as vile as theft or robbery. The duty not to appropriate or to return anything acquired thru mistake or malice is so basic it is included in the Civil Code provision on Human Relations and solutio indebiti. 108. Burning of one's own property in such a manner as to put in danger the person or property of another is simple arson under Sec. 1 of PD 1613. 109. Conspiracy to commit arson is penalized under Sec. 7 of PD 1613. Conspiracy to commit drug

trafficking is penalized under RA 9165. 110. Carnapping with homicide or rape is a special complex crime penalized with reclusion perpetua to death. ISlaw follows the RPC rules. Other forms of carnapping are penalized with number of years of imprisonment. ISLaw follows the rules for special law.