Bar Q & A, Criminal Law

SUGGESTED ANSWERS TO THE 2018 BAR EXAMINATION QUESTIONS IN CRIMINAL LAW UP LAW COMPLEX

CRIMINAL LAW 

I.

Roberto and Ricardo have had a long-standing dispute regarding conflicting claims over the ownership of a parcel of land. One night, Roberto was so enraged that he decided to kill Ricardo. Roberto asked his best friend, Rafael, to lend him a gun and drive him to Ricardo’s house. Rafael knew about Roberto’s plan to kill Ricardo, but agreed to lend him a gun nevertheless. Rafael also drove Roberto to the street corner nearest the house of Ricardo. Rafael waited for him there, until the task had been accomplished, so that he could drive Roberto to the next town to evade arrest. Roberto also asked another friend, Ruel, to stand guard outside Ricardo’s house, for the purpose of warning him in case there was any danger or possible witnesses, and to keep other persons away from the vicinity. All three – Roberto, Rafael, and Ruel – agreed to the plan and their respective roles. 

On the agreed date, Rafael drove Roberto and Ruel to the nearest corner near Ricardo’s house. Roberto and Ruel walked about 50 meters where Ruel took his post as guard, and Roberto walked about five (5) meters more, aimed the gun at Ricardo’s bedroom, and peppered it with bullets. When he thought that he had accomplished his plan, Roberto ran away, followed by Ruel, and together they rode in Rafael’s car where they drove to the next town to spend the night there. It turned out that Ricardo was out of town when the incident happened, and no one was in his room at the time it was peppered with bullets. Thus, no one was killed or injured during the incident. 

(a) Was a crime committed? If yes, what is/are the crime/s committed? (2.5%); 

SUGGESTED ANSWER: 

(a) Yes. In the case of Intod y. Court of Appeals (G.R. No. 103119, October 21, 1992), the Supreme Court ruled that when factual impossibility occurs because extraneous circumstances unknown to the actor were beyond his control, rendering the intended crime impossible of accomplishment, the offense committed is an impossible crime (Art. 4, par. 2, Revised Penal Code [RPC]; the factual situation that made impossible the accomplishment of the crime intended when they peppered Ricardo’s room with bullets, was the physical absence of the intended victim of the room. 

(b) If a crime was committed, what is the degree of participation of Roberto, Rafael, and Ruel? (2.5%) 

SUGGESTED ANSWER: 

(b) All the perpetrators (Roberto, Ricardo, and Rafael) are criminally liable as principals since the conspiracy among them was clearly established by their participation. 

Roberto is principal by direct participation as he took a direct part in the execution of the plan to kill Ricardo by firing his gun at the room of the intended victim. Rafael is principal by indispensable cooperation not only because he lent his gun to Roberto fully knowing the unlawful intent of the latter, but also drove him to the place of the commission of a crime and to a place where he could escape. 

Ruel, being involved in the criminal plan to kill Ricardo, acted in conspiracy with the two (2) other perpetrators staying in the place from the time they planned the crime up to its finalization. They were together in the car driven by Rafael going to the next town in escaping from the scene of the crime. 

II.

Rico, a hit man, positioned himself at the rooftop of a nearby building of a bank, to serve as a lookout for Red and Rod while the two were robbing the bank, as the three of them had previously planned. Ramiro, a policeman, responded to the reported robbery. Rico saw Ramiro and, to eliminate the danger of Red and Rod being caught, pulled the trigger of his rifle, intending to kill Ramiro. He missed as Ramiro slipped and fell down to the ground. Instead, a woman depositor who was coming out of the bank was fatally shot. After their apprehension, Rico, Red, and Rod were charged with the special complex crime of robbery with homicide. Rico’s defense was that he never intended to shoot and kill the woman, only Ramiro. Red and Rod’s defense was that they were not responsible for the death of the woman as they had no participation therein. 

(a) Is Rico’s defense meritorious? (2.5%) 

SUGGESTED ANSWER: 

(a) Rico’s defense is not meritorious, because the homicide was committed on the occasion of a robbery; thus, the crime committed is robbery with homicide as long as the killing occurred on the occasion of the robbery whoever be the victim, whether intended or not. 

(b) Is Red and Rod’s defense meritorious? (2.5%) 

SUGGESTED ANSWER: 

(b) No, the defense of Red and Rod’s is also not meritorious. The concerted manner in which the three (Rico, Red, and Rod) perpetrated the crime showed clearly the presence of conspiracy. When a homicide takes place by reason or on the occasion of a robbery, all those who took part shall be guilty of the special complex crime of robbery with homicide, whether or not they actually participated in the killing.

Regardless of the fact that the killing of the woman depositor was individually performed by Rico, the basic principle in conspiracy is that the “act of one is the act of all”, the criminal liability of Rod and Red is one and the same with that of Rico (People v. Hinlo, G.R. No. 212151, Feb. 18, 2015). 

III 

On February 5, 2017, Rho Rio Fraternity held initiation rites. Present were: (i) Redmont, the Lord Chancellor and head of the fraternity; (ii) ten (10) members, one (1) of whom was Ric, and (iii) five (5) neophytes, one (1) of whom was Ronald. Absent were: (i) Rollie, the fraternity’s Vice Chancellor and who actually planned the initiation; and (ii) Ronnie, the owner of the house where the initiation was conducted. 

Due to the severe beating suffered by Ronald on that occasion, he lost consciousness and was brought to the nearest hospital by Redmont and Ric. However, Ronald was declared dead on arrival at the hospital. 

During the investigation of the case, it was found out that, although Ronald really wanted to join the fraternity because his father was also a member of the same fraternity, it was his best friend Ric who ultimately convinced him to join the fraternity and, as a prerequisite thereto, undergo initiation. It was also shown that Redmont and Ric did not actually participate in the beating of the neophytes (hazing). The two (2) either merely watched the hazing or helped in preparing food. And, lastly, two (2) days prior thereto, Ronnie texted Rollie that the fraternity may use his house as the venue for the planned initiation. 

Aside from those who actually participated in the hazing, Redmont, Rollie, Ric, and Ronnie were criminally charged for the hazing of Ronald that resulted in the latter’s death. 

(a) Are the four criminally liable? (2.5%) 

SUGGESTED ANSWER: 

(a) Yes. Redmont’s presence during the hazing is prima facie evidence of participation therein as principal, unless he prevented the commission of the hazing that caused physical harm to Ronald. 

Ric is also liable criminally, because as member of the Fraternity who knowingly cooperated in carrying out the initiation by inducing the victim to be present thereat is liable as principal. He is penalized, not be cause of any participation in the infliction of harm to the victim but due to his indispensable cooperation in the crime by successfully inducing or convincing the victim to undergo the hazing. 

Rollie as Vice Chancellor of Rho Rio Fraternity, who actually planned the initiation though not present when the acts of hazing were committed, is liable as principal. 

Ronnie the owner of the place where hazing was conducted is li able as accomplice, because he had actual knowledge of the hazing con ducted therein and failed to take any action to prevent occurrence of the same (Sec. 4 of R.A. 8049 [Anti-hazing law] as amended by R.A. 11053 [Sec. 14, “owner of place is liable as principal”]; Dungo and Sibal, Jr. v. People, G.R. No. 209464 July 1, 2015). 

(b) Can all those criminally charged be exonerated upon proof that Ron ald, knowing the risks, voluntarily submitted himself to the initiation? Will the absence of proof that the accused intended to kill the victim affect their liability? (2.5%) 

SUGGESTED ANSWER: 

(b) The defense of consent will not apply, because the very act of inflicting physical pain or psychological suffering is, by itself punishable; that it resulted in the neophyte’s death or physical injuries merely aggra vates the act resulting in the imposition of higher penalty. 

Also, R.A. 8049, the Anti-Hazing Law, is malum prohibtum, thus existence of criminal intent is immaterial. 

ALTERNATIVE ANSWER:

(b) Under Section 12 of R.A. No. 11053, or the “Anti-Hazing Law of 2018,” the defense that the recruit, neophyte, or applicant consented to being subjected to hazing shall not be available to persons prosecuted under this Act.” It is likewise stated that any person charged under said law shall not be entitled to the mitigating circumstance that there was no intention to commit so grave a wrong. 

IV.

On the way home from work, Rica lost her necklace to a snatcher. A week later, she saw what looked like her necklace on display in a jewelry store in Raon. Believing that the necklace on display was the same necklace snatched from her the week before, she surreptitiously took the necklace with out the knowledge and consent of the store owner. Later, the loss of the neck lace was discovered, and Rica was shown on the CCTV camera of the store as the culprit. Accordingly, Rica was charged with theft of the necklace. Rica raised the defense that she could not be guilty as charged because she was the owner of the necklace and that the element of intent to gain was lacking. 

What should be the verdict if: 

(a) The necklace is proven to be owned by Rica? (2.5%) 

SUGGESTED ANSWER: 

Under Art. 308 of the RPC, theft is committed by any person who, with intent to gain but without violence against, or intimidation of per sons nor force upon things, shall take personal property of another with out the latter’s consent. While the CCTV captured Rica surreptitiously taking the necklace from a jewelry store without the knowledge and consent of the store owner, she cannot be charged with theft, because the taking was made under a claim of ownership. The fact of ownership negates any intention to gain, as Rica cannot steal the necklace which she claims to own. 

(b) It is proven that the store acquired the necklace from another person who was the real owner of the necklace? (2.5%) 

(b) Even if it was proven that the necklace was bought by the store from another person who was the real owner of the necklace, Rica still cannot be held liable for theft absent a felonious intent. “Actus non facit reum, nisi mens sit rea“. A crime is not committed if the mind of the per son performing the act complained of is innocent. 

The ruling in U.S. v. Vera (1 Phil 485, May 31, 1974), is emphatic; i.e. if a person takes personal property of another believing it to be his own, the presumption of intent to gain is rebutted and therefore he is not guilty of theft. 

V.

With a promise of reward, Robert asked Romy to bring him a young girl that he (Robert) can have carnal knowledge with. Romy agreed, seized an eight-year old girl and brought her to Robert. After receiving his reward, Romy left while Robert proceeded to have carnal knowledge of the girl. 

(a) For what felony may Robert and Romy be charged? (2.5%) 

SUGGESTED ANSWER: 

(a) Robert may be charged with the crime of Child Prostitution or other sexual abuse under Section 5(b) of R.A. No. 7610 (Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act) by having sexual intercourse with a child exploited in prostitution. Because the victim was under 12 years of age, (in this case, 8 years), Robert should be pros ecuted under Article 266-A and 266-B of the Revised Penal Code as amended by R.A. No. 8353 (Anti-rape law of 1997). Romy, on the other hand, may be charged with the crime of Child Prostitution or other sexual abuse under Section 5(a) of R.A. No. 7610 by acting as procurer of a child prostitute. 

(b) Will your answer in (a) be the same if the victim is a 15-year old lass who was enticed, through cunning and deceit of Romy, to voluntarily go to the house of Robert where the latter subsequently had carnal knowledge of her? (2.5%) 

SUGGESTED ANSWER: 

(b) Yes. R.A. No.7610 covers sexual abuse committed against a child or children below eighteen (18) years of age. Children, who for money, profit, or any other consideration due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious con duct, are deemed to be children exploited in prostitution and other sexual abuse. Robert and Romy may be prosecuted under the said law. 

SUGGESTED ANSWERS TO THE 2018 BAR EXAMINATION QUESTIONS IN CRIMINAL LAW UP LAW COMPLEX

VI 

A group of homeless and destitute persons invaded and occupied the houses built by the National Housing Authority (NHA) for certain military personnel. To gain entry to the houses, the group intimidated the security guards posted at the entrance gate with the firearms they were carrying and destroyed the padlocks of the doors of the houses with the use of crowbars and hammers. They claimed that they would occupy the houses and live therein because the houses were idle and they were entitled to free housing from the government. 

For the reason that the houses were already awarded to military personnel who had been found to have fully complied with the requirements for the award thereof, NHA demanded the group vacate within ten (10) days from notice the houses they occupied and were still occupying. Despite the lapse of the deadline, the group refused to vacate the houses in question. 

What is the criminal liability of the members of the group, if any, for their actions? (5%) 

SUGGESTED ANSWER: 

The members of the group who, by means of violence against or intimidation, shall take possession of any real property or shall usurp any real rights in property belonging to another, is criminally liable under Art. 312 of the RPC or Occupation of real property or usurpation of real rights in property. In addition, they may also be charged with other crimes re sulting from their acts of violence. 

VII.

Robbie and Rannie are both inmates of the National Penitentiary, serving the maximum penalty for robbery which they committed some years before and for which they have been sentenced by final judgment. One day, Robbie tried to collect money owed by Rannie. Rannie insisted that he did not owe Robbie anything, and after a shouting episode, Rannie kicked Robbie in the stomach. Robbie fell to the ground in pain, and Rannie left him to go to the toilet to relieve himself. As Rannie was opening the door to the toilet and with his back turned against Robbie, Robbie stabbed him in the back with a bladed weapon that he had concealed in his waist. Hurt, Rannie ran to the nearest “kubol” where he fell. Robbie ran after him and, while Rannie was lying on the ground, Robbie continued to stab him, inflicting a total of 15 stab wounds. He died on the spot. Robbie immediately surrendered to the Chief Warden. When prosecuted for the murder of Rannie, Robbie raised provocation and voluntary surrender as mitigating circumstances. The prosecution, on the other hand, claimed that there was treachery in the commission of the crime. 

(a) Is Robbie a recidivist, or a quasi-recidivist? (2.5%) 

SUGGESTED ANSWER: 

(a) Robbie is considered a quasi-recidivist pursuant to Article 160 of the RPC. At the time he stabbed Rannie which resulted in the latter’s death, he had been convicted by final judgment and had been serving sentence at the National Penitentiary. In quasi-recidivism, the first and second offenses need not be embraced in the same title of the RPC. A re cidivist, on the other hand, requires that the crimes committed must be embraced in the same title of the RPC. Because the killing of Rannie and the robbery, in which Robbie was previously convicted by final judgment, were not under the same title, Robbie cannot be considered a recidivist. 

(b) Can the mitigating circumstances raised by Robbie, if proven, lower the penalty for the crime committed? (2.5%) 

SUGGESTED ANSWER: 

(b) No. If proven, the presence of the mitigating circumstances of lack of sufficient provocation and voluntary surrender would be of no consequence as quasi-recidivism cannot be offset by any ordinary mitigating circumstance (People v. Macariola, GR No. L-40757, 24 January 1983). 

VIII.

Randy was prosecuted for forcible abduction attended by the aggravating circumstance of recidivism. After trial, the court held that the prosecutor was able to prove the charge. Nonetheless, it appreciated in favor of Randy, on the basis of the defense’s evidence, the mitigating cir cumstances of voluntary surrender, uncontrollable fear, and provocation. Under Art. 342 of the Revised Penal Code (RPC), the penalty for forcible abduction is reclusion temporal. 

Applying the Indeterminate Sentence Law, what penalty should be imposed on Randy? (5%) 

SUGGESTED ANSWER: 

Since he was found guilty of Forcible Abduction with one aggravating circumstance of recidivism, this aggravating circumstance is offset by one of the three mitigating circumstances; so the penalty to be imposed is still reclusion temporal (Art. 342, RPC) bat because there are two (2) more mitigating circumstances left and the penalty is divis ible, in determining the maximum term, it should be reduced to prision mayor and because there is no more mitigating and aggravating circumstance to be considered, the maximum term should be prision mayor in its medium period, that is eight (8) years and one (1) day to ten (10) years. The minimum term shall be any range within, that is from six (6) years and one (1) day to eight (8) years. 

Thus Randy will suffer as minimum term any penalty ranging from six (6) months and one (1) day, and the maximum term will be, in the range from eight (8) years and one (1) day to ten (10) years of prision mayor. 

ALTERNATIVE ANSWER: 

Section 1 of Act No. 4103, otherwise known as the “Indeterminate Sentence Law” provides: 

Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, 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 said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense. 

Reclusion temporal is a single divisible penalty. In deter mining the proper penalty vis-à-vis the aggravating circum stance of recidivism and the mitigating circumstances of vol untary surrender, uncontrollable fear, and provocation, Article 64 of the Revised Penal Code should be applied. Pursuant to Article 64(4) of the RPC, upon offsetting one ordinary aggravating circumstance with one mitigating circumstance, two (2) mitigating circumstances may be appreciated in favor of the accused in determining the maximum imposable penalty. 

Thus, the maximum imposable penalty is prision mayor in its medium period. The minimum imposable penalty shall be within the range prision correccional which is the penalty next lower to the maximum imposable penalty. 

ANOTHER ALTERNATIVE ANSWER: 

Uncontrollable fear is not a mitigating circumstance but an exempt ing circumstance. Hence, there is no penalty that can be imposed upon Randy since he is exempt from criminal liability. 

[Note: Provocation can only be appreciated in crime against persons. One cannot provoke another person to commit theft, estafa or forcible abduction. Credit should be given to those who disregarded provocation as a mitigating circumstance in answering this question]. 

IX 

Rashid asked Rene to lend him PhP50,000, payable in six (6) months and, as payment for the loan, Rashid issued a postdated check for the said amount plus the agreed interest. Rashid assured Rene that the account would have sufficient funds on maturity date. On that date, Rene presented the check to the drawee bank for payment but it was dishonored for the reason that it was drawn against insufficient funds (DAIF). 

Rene sent Rashid a timely notice of dishonor of the check and demanded the latter to make good the same within five (5) days from notice. After the lapse of the five (5)-day notice, Rene redeposited the check with the drawee bank but it was again dishonored for the same reason, i.e., DAIF. Rene thereafter filed two (2) separate criminal actions against Rashid: (1) 

Estafa under Art. 315(2)(d) of the RPC, as amended by R.A. No. 4885, i.e. estafa committed by postdating a check, or issuing a check in payment of an obligation without sufficient funds in the bank; and (2) Violation of B.P. 22 or the Bouncing Checks Law. 

(a) Can he be held liable under both actions? (2.5%) 

SUGGESTED ANSWER: 

(a) Yes. Rashid can be liable for estafa and also for violation of B.P. Bldg, 22. While the two criminal actions of estafa under Art. 315(2) (d) of the RPC and violation of Batas Pambansa (BP) Bilang 22 may refer to identical acts committed by Rashid, the prosecution thereof cannot be limited to one offense, because a single criminal act may give rise to a multiplicity of offenses and where there is variance or differences be tween the elements of an offense in one law and another law, as in this case, there will be no double jeopardy, because what the rule on double jeopardy prohibits refers to identity of elements in the two (2) offenses. Otherwise stated, prosecution for the same act is not prohibited. What is forbidden is prosecution for the same offense. Essentially, while a BP 22 case and an estafa case may be rooted from an identical set of facts, they nevertheless present different causes of action, which, under the law, are considered “separate, distinct, and independent” from each other. Both cases, therefore, can proceed to their final adjudication – both as to their criminal and civil aspects (Rimando v. Spouses Aldaba and People, G.R. No. 203583, 13 October 2014). 

(b) If the check is presented for payment after four (4) months, but before it becomes stale, can the two actions still proceed? (2.5%) 

SUGGESTED ANSWER: 

(b) Yes. The presentation of the check beyond the 90-day period would be of no consequence per Section 2 of B.P. Blg. 22. The 90-day period is not an element of the offense but merely a condition for the prima facie presumption of knowledge of the insufficiency of funds. That the check must be deposited within ninety (90) days is simply one of the conditions for the prima facie presumption of knowledge of lack of funds to arise. It does not discharge Rashid from his duty to maintain sufficient funds in the account. 

X. 

Rafa caught his wife, Rachel, in the act of having sexual intercourse with Rocco in the maid’s room of their own house. Rafa shot both lovers in the chest, but they survived. Rafa charged Rachel and Rocco with adultery, while Rachel and Rocco charged Rafa with frustrated parricide and frustrated homicide. 

In the adultery case, Rachel and Rocco raised the defense that Rafa and Rachel, prior to the incident in question, executed a notarized document whereby they agreed to live separately and allowed each of them to get a new partner and live with anyone of their choice as husband and wife. This docu ment was executed after Rachel discovered that Rafa was cohabiting with an other woman. Thus, they also raised the defense of in pari delicto. In the frus trated parricide and frustrated homicide cases, Rafa raised the defense that, having caught them in flagrante delicto, he had no criminal liability. 

Assuming that all defenses have been proven: 

(a) Will the action for adultery prosper? (2.5%) 

SUGGESTED ANSWER: 

(a) The defense of pari delicto is not available in criminal cases. However, when the facts stated in the notarized agreement between Rafa and Rachel constitute consent on the part of both of them, it is submitted that the action for adultery will not prosper; otherwise it cannot affect the private criminal action for adultery. 

(b) Will the actions for frustrated parricide and frustrated homicide prosper? (2.5%) 

SUGGESTED ANSWER: 

(b) Yes. The actions for frustrated parricide and frustrated homicide will prosper, and Rafa will be found guilty of these crimes. The penalty, however, that the trial court can impose is only destierro- not penalties for frustrated parricide and frustrated homicide, Rafa being the spouse of Rachel (Art. 246, RPC). 

ALTERNATIVE ANSWER: 

(b) No, the actions for frustrated parricide and frustrated homicide will not prosper because Rafa is entitled to the benefit of Article 247 of the Revised Penal Code. 

Article 247 of the RPC states that any legally married person who having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro. If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment. 

The action will prosper to allow the court to receive evidence. However, Rafa can be held liable only for destierro based on Art. 247 of the RPC. The act committed by Rafa amounts to at least, serious physical injuries, so the penalty of destierro will be imposed. If the court finds that the act amounts to less than serious physical injuries, Rafa will not have any criminal liability. 

XI

Wielding loose firearms, Rene and Roan held up a bank. After taking the bank’s money, the robbers ran towards their getaway car, pursued by the bank security guards. As the security guards were closing in on the robbers, the two fired their firearms at the pursuing security guards. As a result, one of the security guards was hit in the head causing his immediate death. 

For the taking of the bank’s money and killing of the security guard with the use of loose firearms, the robbers were charged in court in two separate informations, one for robbery with homicide attended by the aggravating circumstance of use of loose firearms, and the other for illegal possession of firearms. 

(a) Are the indictments correct? (5%) 

SUGGESTED ANSWER: 

(a) The indictment for Robbery with homicide is correct. Robbery with homicide, a special complex crime, is primarily a crime against property and not against persons, homicide being a mere incident of the robbery with the latter being the main purpose of the criminal. The elements of robbery with homicide are: 

(a) the taking of personal property with the use of violence or intimidation against a person; 

(b) the property thus taken belongs to another; 

(c) the taking is characterized by intent to gain or animus lucrandi; and 

(d) on the occasion, the crime of homicide, which is therein used in a generic sense, was committed. 

The indictment for illegal possession of a firearm is wrong. In the case of People v. Gaborne, G.R. No. 210710, July 27, 2016, the Supreme Court clarified the issue, to wit: 

In view of the amendments introduced by R.A. No. 8294 and R.A. No. 10591, to Presidential Decree No. 1866, separate prosecutions for homicide and illegal possession are no longer in order. Instead, illegal possession of firearm is merely to be taken as an aggravating circumstance in the crime of murder. It is clear from the foregoing that where murder results from the use of an unlicensed firearm, the crime is not qualified il legal possession but, murder. In such a case, the use of the un licensed firearm is not considered as a separate crime but shall be appreciated as a mere aggravating circumstance. Thus, where murder was committed, the penalty for illegal posses sion of firearms is no longer imposable since it becomes merely a special aggravating circumstance. The intent of Congress is to treat the offense of illegal possession of firearm and the com mission of homicide or murder with the use of unlicensed fire arm as a single offense. 

XII 

Orphaned when still an infant, Rocky lived under the care of his grandmother Rosario. Now 18, Rocky entered Rosario’s bedroom who was then outside doing her daily marketing. He ransacked the bedroom and took Rosario’s money and valuables amounting to PhP100,000. 

When Rosario came home, she found her room in disarray, and her money and valuables gone. She confronted Rocky, who confessed to taking the money and valuables in order to pay his debts. 

(a) What crime, if any, did Rocky commit? (2.5%) 

SUGGESTED ANSWER: 

(a) Rocky committed the crime of theft by taking his grandmother’s money and valuables. He committed theft under Art. 308 of the RPC which says: theft is committed by any person who, with intent to gain but without violence against or intimidation of persons nor force upon things shall take the personal property of another. 

(b) Does he incur criminal and/or civil liability? (2.5%) 

SUGGESTED ANSWER: 

(b) Rocky could incur civil liability only, not criminal liability, as Art. 332 (RPC) provides that no criminal but only civil liability shall re sult from the commission of the crime of theft, swindling or malicious mischief committed or caused mutually by the following persons: 

1. Ascendants and descendants. 

XIII

The brothers Roberto and Ricardo Ratute, both Filipino citizens, led a group of armed men in seizing a southern island in the Philippines, and declaring war against the duly constituted government of the country. The Armed Forces of the Philippines (AFP), led by its Chief of Staff, General Riturban, responded and a full scale war ensued between the AFP and the armed men led by the brothers. The armed conflict raged for months. 

When the brothers-led armed men were running out of supplies, Ricalde, also a Filipino, and a good friend and supporter of the Ratute brothers, was tasked to leave for abroad in order to solicit arms and funding for the cash strapped brothers. He was able to travel to Rwanda, and there he met with Riboli, a citizen and resident of Rwanda, who agreed to help the brothers by raising funds internationally, and to send them to the Ratute brothers in order to aid them in their armed struggle against the Philippine government. Before Ricalde and Riboli could complete their fund-raising activities for the broth ers, the AFP was able to reclaim the island and defeat the Ratute-led uprising. 

Ricalde and Riboli were charged with conspiracy to commit treason. During the hearing of the two cases, the government only presented as wit ness, General Riturban, who testified on the activities of the Ratute brothers, Ricalde, and Riboli. 

(a) Can Ricalde and Riboli be convicted of the crime of conspiracy to commit treason? (2.5%) 

SUGGESTED ANSWER: 

(a) Ricalde and Riboli cannot be convicted of the crime of conspiracy to commit treason, because there was no war existing when they committed the acts. Jurisprudence considers treason as a crime committed in times only of an international armed conflict. The same is true with the felony of conspiracy to commit treason. Moreover, the crimes were committed outside the jurisdiction of Philippine Court. 

(b) Will the testimony of General Riturban, assuming he can testify on acts within his personal knowledge, be sufficient to convict the Ratute brothers, Ricalde, and Riboli? (2.5%) 

SUGGESTED ANSWER: 

(b) Yes, assuming Gen. Riturban can testify on acts within his personal knowledge, as to the offense of seizing a southern island in the Philippines which raged for months in the country. This is sufficient to convict the Ratute brothers and Riboli but the crime could be Rebellion, and the two-witness rule is not required in the case of Rebellion. 

SUGGESTED ANSWERS TO THE 2018 BAR EXAMINATION 

QUESTIONS IN CRIMINAL LAW  UP LAW COMPLEX

XIV 

Robin and Rowell are best friends and have been classmates since grade school. When the boys graduated from high school, their parents gifted them with a trip to Amsterdam, all expenses paid. At age 16, this was their first European trip. Thrilled with a sense of freedom, they decided to try what Amsterdam was known for. One night, they scampered out of their hotel room, went to the De Wal len, better known as the Red-light District of Amsterdam. There, they went to a “coffee shop” which sells only drinks and various items made from opium poppy, cannabis, and marijuana, all of which are legal in Amsterdam. They represented themselves to be of age, and were served, and took shots of, cannabis and mari juana products. They indulged in these products the whole night, even if it was their first time to try them. 

Before returning to Manila, they bought a dozen lollipops laced with cannabis, as souvenirs and “pasalubong” for their friends. They were accosted at the Manila International Airport and were charged with importation of dangerous drugs under the Comprehensive Dangerous Drugs Act of 2002. They were also charged with use of dangerous drugs after pictures of them in the “coffee shop” in Amsterdam were posted on Facebook, showing them smoking and taking shots  of a whole menu of cannabis and marijuana products. Their captions on their Facebook posts clearly admitted that they were using the dangerous products. The pictures were posted by them through Private Messenger (PM) only for their close friends, but Roccino, the older brother of one of their best friends, was able to get hold of his younger brother’s password, and without authority from his brother, accessed his PM and shared Robin and Rowell’s Amsterdam photos on Facebook. 

(a) Can Robin and Rowell be prosecuted for use of dangerous drugs for their one-night use of these products in Amsterdam? (2.5%) 

SUGGESTED ANSWER: 

(a) Robin and Rowell cannot be prosecuted by Philippine courts, be cause they did not use the dangerous drug within its territory, under the principle of territoriality. 

(b) Can they be prosecuted for importation of dangerous drugs? (2.5%) 

SUGGESTED ANSWER: 

They can be prosecuted for importation of dangerous drugs under RA 9165, which provides: 

“Section 4. Importation of Dangerous Drugs and/or Con trolled Precursors and Essential Chemicals – The penalty of life imprisonment to death and ranging from Five hundred thou sand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall import or bring into the Philippines any dangerous drug, regardless of the quantity and purity involved, includ ing any and all species of opium poppy or any part thereof or substances derived therefrom even for floral, decorative and culinary purposes”. 

(c) If found liable under either (a) or (b) above, what is the penalty that may be imposed on them? (2.5%) 

SUGGESTED ANSWER: 

(c) If found guilty, they will be exempt from criminal liability, because they are minors (16 years old), as provided in Title I Chapter 2, section 6 of RA 9344 (“Juvenile Justice and Welfare Act of 2006”), to wit: 

“A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with this Act”. 

ALTERNATIVE ANSWER: 

(c) The penalty that may be imposed is reclusion perpetua. Article 68 (2) of the Revised Penal Code states that the penalty next lower than that prescribed by law shall be imposed upon a person over 15 years and un der 18 years, but always in the proper period. Robin and Rowell are mi nors who acted with discernment, so as to fall under the scope of Section 98 of the Dangerous Drugs Act, in relation to Article 68 (2) of the Revised Penal Code. Discernment is that mental capacity of a minor to fully appreciate the consequences of his unlawful act. The surrounding circum stances must demonstrate that the minor knew what he was doing and that it was wrong (People v. Jacinto, G.R. No. 182239, 16 March 2011), In this case, Robin and Rowell: 

(a) misrepresented that they were of age so that they may be able to consume cannabis and marijuana products and 

(b) deliberately shared photos of their experience with said products, indicating their mental capacity to understand that said products are prohibited drugs as defined under the Dangerous Drugs Act. 

(d) Can Roccino be prosecuted for the act of accessing and sharing on Facebook the private pictures sent by PM to his brother? If yes, for what crime? (2.5%) 

SUGGESTED ANSWER: 

Roccino, who accessed the private messages of his brother and shared in Facebook pictures of other people without their consent, can be charged with violation of RA 10173 (Data Privacy Act of 2012) in rela tion to Chapter II, section 6 of RA 10175 (Cybercrime Prevention Act of 2012): All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies…. Roccino committed unauthorized access and disclosure of personal data (Sections 29 and 32 of RA 10173). 

XV.

During the presentation of the prosecution’s evidence, Reichter was called to the witness stand with the stated purpose that he would testify that his wife Rima had shot him in the stomach with a .38 caliber pistol, resulting in near fatal injuries. Upon objection of the defense on the ground of the marital disqualification rule, the presiding judge (Judge Rossano) disallowed Reichter from testifying in the case. Its motion for reconsideration having been denied, the People of the Philippines went up on certiorari to the Court of Appeals (CA) questioning Judge Rossano’s ruling. 

After due proceedings, the CA rendered judgment declaring Judge Rossano’s ruling void ab initio for having been made with grave abuse of discretion amounting to lack or excess of jurisdiction, and directing Judge Rossano to allow Reichter to testify in the criminal case for the stated purpose. This is based on the fact that the marital privilege rule does not apply where a spouse committed a crime against the other.

As the CA decision became final and executory, the criminal case before the RTC was calendared for trial. At the scheduled trial, the prosecution called Reichter to the witness stand in order to testify on the same matter it earlier announced. The defense objected on the ground that the CA erred in its disposition of the certiorari case. Judge Rossano sustained the objection and again disallowed Reichter from testifying in the criminal case. Repeated pleas from the prosecution for Judge Rossano to reconsider his ruling and to allow Reichter to testify fell on deaf ears. 

May Judge Rossano be convicted of a crime? If yes, what crime did he commit? (5%) 

SUGGESTED ANSWER: 

Yes. Judge Rossano may be convicted of the crime of open disobedience (Art. 231, RPC) which provides that any judicial or executive officer who shall openly refuse to execute the judgment, decision or order of any suspension authority made within the scope of the jurisdiction of the latter and issued with all the legal formalities shall suffer the penal ties of arresto mayor in its medium period to prision correctional, special disqualification and fine. 

The ruling was issued by the Court of Appeals; it was already final and executory. The act of Judge Rossano disallowing Reichter from testifying is open disobedience under the law. 

ALTERNATIVE ANSWER: 

Judge Rossano may be charged and convicted of the crime of dereliction of duty under Article 206 of the Revised Penal Code, which provides: 

Article 206. Unjust interlocutory order. – Any judge who shall knowingly render an unjust interlocutory order or decree shall suffer the penalty of arresto mayor in its minimum period and suspension; but if he shall have acted by reason of inexcusable negligence or ignorance and the interlocutory order or decree be manifestly unjust, the penalty shall be suspension. 

ANOTHER ALTERNATIVE ANSWER: 

Judge Rosario can be held liable for violation of Section 3 (e) of RA No. 3019 for giving unwarranted preference, advantage or benefits to a private party through manifest partiality and evident bad faith. In Reyes v. People (G.R. No. 177105-06, August 12, 2010), arrogant refusal to recognize and obey the CA decision causing undue injury to the complainant and giving unwarranted benefits to private individuals constitutes evident bad faith and manifest partiality contemplated in violation of Section 3 (e) of R.A. No. 3019. 

XVI 

For the past five years, Ruben and Rorie had been living together as husband and wife without the benefit of marriage. Initially, they had a happy relationship which was blessed with a daughter, Rona, who was born on March 1, 2014. However, the partners’ relationship became sour when Ruben began indulging in vices, such as women and alcohol, causing frequent arguments between them. Their relationship got worse when, even for slight mistakes, Ruben would lay his hands on Rorie. One day, a tipsy Ruben barged into their house and, for no reason, repeatedly punched Rorie in the stomach. To avoid further harm, Rorie ran out of the house. But Ruben pursued her and stripped her naked in full view of their neighbors; and then he vanished. 

Ten days later, Ruben came back to Rorie and pleaded for forgiveness. However, Rorie expressed her wish to live separately from Ruben and asked him to continue providing financial support for their daughter Rona. At that time, Ruben was earning enough to support a family. He threatened to withdraw the support he was giving to Rona unless Rorie would agree to live with him again. But Rorie was steadfast in refusing to live with Ruben again, and insisted on her demand for support for Rona. As the ex-lovers could not reach an agreement, no further support was given by Ruben.

What crimes did Ruben commit: 

(a) For beating and humiliating Rorie? (2.5%) 

SUGGESTED ANSWER: 

(a) For beating and humiliating Rorie, such acts violate Ra 9262, known as the “Anti-Violence Against Women and Their Children Act of 2004,”particularly section 3 (A) thereof under “Physical Violence” refer ring to acts that include bodily or physical harm against a woman with whom the person has or had a sexual or dating relationship. 

(b) For withdrawing support for Rona? (2.5%) 

SUGGESTED ANSWER: 

(b) For withdrawing support for Rona, such act is a violation of RA 9262, section 3 (D), which reads: 

“Economic abuse” refers to acts that make or attempt to make a woman financially dependent which includes, but is not 

limited to the following: 

1. Withdrawal of financial support or preventing the vic tim from engaging in any legitimate profession, occupation, business or activity, except in cases wherein the other spouse/ partner objects on valid, serious and moral grounds as defined in Article 73 of the Family Code; 

XVII

Robina bought from Ramsey a seaside property located in Romblon. At that time, she was in the process of returning to the Philippines as a returning resident, after retiring from her work in Russia, and was planning to set up a diving school in the area. In a non-notarized “Kasunduan ng Pagbibili,” Ramsey represented the property as alienable and disposable, and that he had a valid title to the property. 

When the sale was completed, and as she was applying for permits and licenses for her school, she found out that the property was a public non alienable and nondisposable land which Ramsey had bought from someone who only had a foreshore lease over the same. As she was bent on setting up the diving school in the area, having made all the preparations and having already bought all the equipment, she filed a Miscellaneous Lease Application (MLA) with the Department of Environment and Natural Resources (DENR) at the Community Environment and Natural Resources Office in Romblon. In her application, she stated that she was a Filipino citizen, although she was still a naturalized Russian citizen at that time. It was only six months after she filed the MLA that she filed her petition for dual citizenship under R.A. No. 9225. When DENR discovered that, at the time of filing the MLA, she was still a Russian citizen, her application was denied and she was charged with falsification of a public document for misrepresenting herself as a Filipino citizen. Infuriated, Robina also filed charges against Ramsey for falsification of a private document for stating in their “Kasunduan” that the property was alienable and disposable. 

In the case for falsification of a public document, Robina’s defense was that, at the time she filed the MLA, she had every intention to reacquire Philippine citizenship, as in fact she filed for dual citizenship six months thereafter, and that she had no intent to gain or to injure the Philippine government since she expected that her application for dual citizenship would be approved before the MLA could be approved. On the other hand, she claimed in the action against Ramsey that intent to gain was present since he received the purchase price as a result of his misrepresentation. Ramsey’s defense was that he had a valid Transfer Certificate of Title in his name, and he had a right to rely on his title. 

(a) Will the case for falsification of public document filed against Robina prosper? (2.5%) 

SUGGESTED ANSWER: 

(a) The elements of Falsification of public documents under Article 171 of the RPC, are: 

1. That the offender is a public officer, employee, or notary public. 

2. That he takes advantage of his official position. 

3. That he falsifies a document by causing it to appear that persons have participated in any act or proceeding. 

4. That such person or persons did not in fact so participate in the proceeding. 

In this case, since Robina is not a public officer, employee or notary public, she cannot be validly charged with falsification of public documents. 

ALTERNATIVE ANSWER: 

(a) No. She is being charged for falsification due to her misrepresentation of her citizenship. However, under R.A. 9225, she is deemed not to have lost her Philippine citizenship. Therefore, there has been no misrepresentation. 

RA 9225, Section 2. Declaration of Policy – It is hereby declared the policy of the State that all Philippine citizens of another country shall be deemed not to have lost their Philippine citizenship under the conditions of this Act. 

There has been no misrepresentation. 

(b) Will the case for falsification of private document filed against Ramsey prosper? (2.5%) 

SUGGESTED ANSWER: 

(b) The elements of falsification of private documents under paragraph 1, Article 172 of the RPC are: 

1. that the offender is a private individual or a public officer or em ployee who did not take advantage of his official position; 

2. that he committed any of the acts of falsification enumerated in Article 171 of the RPC; and, 

3. that the falsification was committed in a public, official or commercial document. 

Yes. Ramsey, as a private individual, committed the act of making untruthful statements in a narration of facts on a commercial document (unnotarized Kasunduan ng Pagbibili). 

SUGGESTED ANSWERS TO THE 2018 BAR EXAMINATION QUESTIONS IN CRIMINAL LAW UP LAW COMPLEX

XVIII 

Mrs. Robinson is a teacher at an elementary school. In one of her classes, she found, to her consternation, that an 8-year old Richard was always the cause of distraction, as he was fond of bullying classmates smaller in size than him. 

One morning, Reymart, a 7-year old pupil, cried loudly and complained to Mrs. Robinson that Richard had boxed him on the ear. Confronted by Mrs. Robinson about Reymart’s accusation, Richard sheepishly admitted the same. Because of this, Mrs. Robinson ordered Richard to lie face down on a desk during class. After Richard obliged, Mrs. Robinson hit him ten (10) times on the legs with a ruler and pinched his ears. Richard ran home and reported to his mother what he had suffered at the hands of Mrs. Robinson. When Rich ard’s parents went to Mrs. Robinson to complain, she interposed the defense that she merely performed her duty as a teacher to discipline erring pupils. 

Richard’s parents ask your advice on what actions can be instituted against Mrs. Robinson for acts committed on their minor child. 

(a) May Mrs. Robinson be charged with child abuse OR slight physical injuries? (2.5%) 

SUGGESTED ANSWER: 

(a) Yes, Mrs. Robinson can be charged with either child abuse un der R.A. 7610 or slight physical injuries if the injuries inflicted constitute slight physical injuries. Sec. 10 of R.A. 7610 provides: 

Any person who shall commit any other acts of child abuse, cruelty or exploitation or be responsible for other conditions prej udicial to the child’s development including those covered by Art. 59 of P.D. 603 but not covered by the Revised Penal Code shall suffer the penalty of prision mayor”. 

In other words, Richard’s parents may choose to prosecute Mrs. Robinson under the Revised Penal Code or R.A. 7610. I will advise Richard’s parents to consider R.A. 7610 as there was no showing of the extent of the physical injuries inflicted. 

(b) May Mrs. Robinson be charged with child abuse AND slight physical injuries? (2.5%) 

SUGGESTED ANSWER: 

(b) No, Mrs. Robinson cannot be charged with both child abuse and slight physical injuries, because the latter is deemed absorbed in the charge of child abuse. 

XIX 

Ricky was driving his car when he was flagged down by a traffic enforcer for over-speeding. Realizing his undoing, but in a hurry for a meeting, Ricky shoved a PhP500 bill in the traffic enforcer’s pocket and whispered to the latter to refrain from issuing him a traffic violation receipt. The traffic enforcer still issued him a ticket, and returned his money. 

What crime, if any, was committed by Ricky? (5%) 

SUGGESTED ANSWER: 

Ricky, in showing a P500 bill in the traffic enforcer’s pocket, clearly committed the crime of corruption of public official under Art. 212 of the RPC, which states that any person who shall have made the offers or promises or given the gifts or presents to a public officer is guilty of corruption of a public officer. Even if the P500 bill was returned it cannot erase the fact that a gift or present was given to the traffic enforcer. 

ALTERNATIVE ANSWER: 

Art. 212 provides that the penalties imposed upon the officer corrupted except those of disqualification and suspension shall be imposed upon the corruptor. Since the traffic officer was not corrupted as he still a issued a ticket and returned the money, it would seem that in this particular instance there is no penalty provided for Ricky who shoved the money to the traffic officer’s pocket. As there is no penalty imposable on Ricky as no public officer was corrupted, it seems there was no crime committed. An act however illegal or immoral cannot be considered a crime if there is no penalty imposed by the law. 

This is like the situation of a battered wife who killed her husband who was sleeping due to exhaustion after subjecting her to physical, psychological and verbal abuse. It is clear she committed parricide in killing her husband but since R.A. 9262, Sec. 26 says: Victim survivors of Battered-Woman Syndrome do not incur any criminal or civil liability, there is no crime committed by the wife as there is no penalty imposable on her. 

ANOTHER ALTERNATIVE ANSWER: 

No crime was committed because the traffic enforcer still issued him a ticket and returned his money. There was no penalty imposed. The crime of corruption of a public official under Art 212, RPC would have been committed had the traffic enforcer accepted Ricky’s money, and refrain from issuing him a traffic violation receipt. 

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