University of the Philippines Law Center SUGGESTED ANSWERS to the 2017 BAR EXAMINATIONS IN CRIMINAL LAW I Tonito, an 8-year-old boy, was watching a free concert at the Luneta Park with his father Tony. The child stood on a chair to be able to see the performers on the stage. Juanito, a 10-year-old boy, who was also watching the concert, could not see much of the performance on the stage because Tonito was blocking his line of sight by standing on the chair. Using his elbow, Juanito strongly shoved Tonito to get a good view of the stage. The shove caused Tonito to fall to the ground. Seeing this, Tony struck Juanito on the head with his hand and caused the boy to fall and to hit his head on a chair. Tony also wanted to strangle Juanito but the latter’s aunt prevented him from doing so. Juanito sustained a lacerated wound on the head that required medical attendance for 10 days Tony was charged with child abuse in violation of Sec. 10(a), in relation to Sec. 3(b)(2), of R.A. 7610 (Child Abuse Law) for allegedly doing an “act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being.” In his defense, Tony contended that he had no intention to maltreat Juanito, much less to degrade his intrinsic worth and dignity as a human being. (a) Distinguish crimes mala in se from crimes mala prohibita. (3%) SUGGESTED ANSWER: Mala in se and mala prohibita ave distinguished as follows: (1) Mala in se are inherently wrong or immoral, while mala prohibita ave not inherently wrong; they are only wrong because they are prohibited by law; (2) In mala in se, good faith or lack of criminal intent is a defense, while in mala prohibita, good faith is not a defense; (3) Modifying circumstances can be appreciated in mala in se. These circumstances cannot be appreciated in mala prohibita, unless the special law that punishes them adopts the technical nomenclature of the penalties of the Revised Penal Code; (4) Mala in se are punishable under the Revised Penal Code; or special laws where the acts punishable therein are wrong by nature. Mala prohibita are punishable under special laws(b) Was Tony criminally liable for child abuse under R.A. 7610? Explain your answer. (3%) SUGGESTED ANSWER: Tony laid hands on Juanito without intent to debase the "intrinsic worth and dignity" of Juanito as a human being, or that he had thereby intended to humiliate or embarrass Juanito. It appears that the laying of hands on Juanito to have been done at the spur of the moment and in anger, indicative of his being then overwhelmed by his fatherly concern for the personal safety of his own minor son, Tonito, who fell to the ground due to the shoving by Juanito. With the loss of his self-control, he lacked that specific intent to debase, degrade or demean the intrinsic worth and dignity of a child as a human being that was so ssential in the crime of child abuse; hence, the crime committed is only slight physical injuries /Bongalon v. People, (G.R. No. 169533, March 20, 2013)]. I Sixteen year old Aliswan prodded Ametyst, his girlfriend, to remove her clothing while they were secretly together in her bedroom late one evening. Failing to get a positive response from her, he forcibly undressed her. Apprehensive about rousing the attention of the household who did not know of his presence inside her room, she resisted him with minimal strength, but she was really sobbing in a muffled manner. He then undressed himself while blocking the door. Yet, the image of a hapless and sobbing Amethyst soon brought him to his senses, and impelled him to leave her room naked. He did not notice in his hurry that Amante, the father of Amethyst, who was then sitting alone on a sofa in the sala, saw him leave his daughter's room naked. Outside the house, the now-clothed Aliswan spotted Allesso, Amethyst’s former suitor. Knowing how Allesso had aggressively pursued Ameth Aliswan fatally stabbed Allesso. Aliswan immediately went into hiding afterwards. Upon learning from Amethyst about what Aliswan had done to her, an enraged Amante wanted to teach Aliswan a lesson he would never forget. Amante set out the next day to look for Aliswan in his school. There, Amante found a young man who looked very much like Aliswan. Amante immediately rushed and knocked the young man unconscious on the pavement, and then draped his body with a prepared tarpaulin reading RAPIST AKO HUWAG TULARAN. Everyone else in the school was shocked upon witnessing what had just transpired , unable to believe that the timid and quiet Alisto, Aliswan’s identical twin brother, had committed rape. (a) A criminal complaint for attempted rape with homicide was brought against Aliswan in the Prosecutor's Office. However, after preliminary investigation, the Investigating Prosecutor recommended the filing of two separate informationsone for attempted rape and the other for homicide. Do you agree with the recommendation? Explain your answer. (3%) SUGGESTED ANSWER: I do not agree with the recommendation for the filling of attempted rape. Intent to have sexual intercourse is an essential element of attempted rape. In other words, intent to lie with the victim must be closer. However, this intent is not established for failure to show that Aliswan had done acts to have sex with Amethyst [Cruz v. People, (G.R. No. 166441, Oct. 08, 2014, Bersamin)]; or that Aliswan had actually commenced to force his penis into the victim's sexual organ [People v. Banzuela, (G.R. No. 202060, Dec. 11, 2013)]. Moreover. spontaneously desisted from committing further lascivious acts after undressing he Amethyst which is a defense in attempted rape. Undressing the victim with lewd design merely constitutes acts of lasciviousness [People v. Sanico, (G.R. No. 208469, Aug. 13, 2014)]. However, I agree with the recommendation of separate charges instead of a special complex crime. Acts of lasciviousness cannot be merged with homicide to form a special complex crime. There is no special complex crime of acts of lasciviousness with homicide under the statute books; moreover, to be held liable of a special complex crime, there must be a direct connection between the components thereof. In this case, the homicide is not directly connected with the acts of lasciviousness since the killing was motivated by personal grudge of Aliswan against Alesso, which has no link to the crime committed against Amethyst. (b) Before the trial court, Aliswan moved that the cases should be dismissed because he was entitled to the exempting circumstance of minority. Is his motion correct? Explain your answer. (3%) SUGGESTED ANSWER: Since Aliswan’s age is above 15 but below 18, being the twin brother of 16 year old Aliswan, the exempting circumstance of minority shall be appreciated in his favor unless it is shown that he acted with discernment. The cases are not dismissible since the prosecution must be first given opportunity to present evidence to establish that Aliswan acted with discernment.