Special Penal Laws Reviewer, Part 1 4103 as earlier noted, this holding is but an application and

INDETERMINATE SENTENCE LAW is justified under the rule of contemporanea expositio.

(Act No. 4103 as amended by Act No. 4225) Republic Act No. 6425, as now amended by Republic Act
No. 7659, has unqualifiedly adopted the penalties under the
WHEN AN ACCUSED IS SENTENCED TO RECLUSION Revised Penal Code in their technical terms, hence with their
PERPETUA, HE IS NOT ENTITLED TO THE APPLICATION technical signification and effects. In fact, for purposes of
OF THE INDETERMINATE SENTENCE LAW determining the maximum of said sentence, we have applied
the provisions of the amended Section 20 of said law to
Accused-appellant cannot avail of the benefits of the arrive at prision correccional and Article 64 of the Code to
Indeterminate Sentence Law because Indeterminate impose the same in the medium period. Such offense,
Sentence Law does not apply to persons convicted of although provided for in a special law, is now in the effect
offenses punishable with reclusion perpetua. punished by and under the Revised Penal Code.
(People v. Aquino; GR 125906, Jan. 16, ’98) (People v Martin Simon)

APPLICATION OF INDETERMINATE SENTENCE LAW WHEN THE BENEFITS OF INDETERMINATE SENTENCE

EXPLAINED LAW IS NOT APPLICABLE;

In the case of People vs. Gabres, the Court has had a. Offenses punished by death or life imprisonment.
occasion to so state that — b. Those convicted of treason (Art. 114), conspiracy or
"Under the Indeterminate Sentence Law, the maximum term proposal to commit treason (Art. 115).
of the penalty shall be 'that which, in view of the attending c. Those convicted of misprision of treason (Art. 116),
circumstances, could be properly imposed' under the rebellion (Art. 134), sedition (Art. 139), or espionage
Revised Penal Code, and the minimum shall be within the (Art. 117).
range of the penalty next lower to that prescribed' for the d. Those convicted of piracy (Art. 122).
offense. The penalty next lower should be based on the e. Habitual delinquents (Art. 62, par. 5).
penalty prescribed by the Code for the offense, without first f. Those who escaped from confinement or those who
considering any modifying circumstance attendant to the evaded sentence.
commission of the crime. The determination of the minimum g. Those granted conditional pardon and who violated the
penalty is left by law to the sound discretion of the court and terms of the same (Art. 159). (People v. Corral, 74 Phil. 359).
it can be anywhere within the range of the penalty next lower h. Those whose maximum period of imprisonment does not
without any reference to the periods into which it might be exceed one year.
subdivided. The modifying circumstances are considered i. Those who are already serving final judgment upon the
only in the imposition of the maximum term of the approval of the Indeterminate Sentence Law.
indeterminate sentence. j. those offenses or crimes not punishable by imprisonment
"The fact that the amounts involved in the instant case such as distierro and suspension.
exceed P22,000.00 should not be considered in the initial
determination of the indeterminate penalty; instead, the RECIDIVISTS ARE ENTITLED TO THE BENEFITS OF THE
matter should be so taken as analogous to modifying INDETERMINATE SENTENCE
circumstances in the imposition of the maximum term of the Recidivists are entitled to an indeterminate sentence.
full indeterminate sentence. This interpretation of the law (People v. Jaramilla, L-28547, Feb. 22, 1974). Offender is
accords with the rule that penal laws should be construed in not disqualified to avail of the benefits of the law even if the
favor of the accused. Since the penalty prescribed by law for crime is committed while he is on parole. (People v. Clareon,
the estafa charge against accused-appellant is prision CA 78 O.G. 6701, Nov. 19, 1982). (Bacar v. De Guzman)
correccional maximum to prision mayor minimum, the
penalty next lower would then be prision correccional NATURE OF PENALTY OF RECLUSION PERPETUA
minimum to medium. Thus, the minimum term of the In "People -vs- Conrado Lucas, 240 SCRA 66, the Supreme
indeterminate sentence should be anywhere within six (6) Court declared that despite the amendment of Article 27 of
months and one (1) day to four (4) years and two (2) months the Revised Penal Code, reclusion perpetua remained an
. . ." indivisible penalty. Hence, the penalty does not have any
(People v. Saley; GR 121179, July 2, ’98) minimum, medium and maximum period. Hence, there is no
such penalty of medium period of reclusion perpetua.
INDETERMINATE SENTENCE LAW; APPLICABLE ALSO (People versus Tiburcio Baculi, 246 SCRA)
IN DRUG CASES:
The final query is whether or not the Indeterminate Sentence IMPOSITION OF WRONG PENALTY: IT DOES NOT
Law is applicable to the case now before us. Apparently it OBTAIN FINALITY
does, since drug offenses are not included in nor has Suppose the court imposed a penalty of 25 years of
appellant committed any act which would put him within the reclusion perpetua for the crime of rape and the accused did
exceptions to said law and the penalty to be imposed does not appeal, does the judgment become final and executory?
not involve reclusion perpetua or death, provided, of course, No, such judgment is null and void because it imposed a
that the penalty as ultimately resolved will exceed one year non-existent penalty. Hence, the court may nevertheless
of imprisonment. The more important aspect, however, is correct the penalty imposed on the accused, that is,
how the indeterminate sentence shall be ascertained. It is reclusion perpetua, it is merely performing a duty inherent in
true that Section 1 of said law, after providing for the court. (People versus Nigel Gatward, GR No. 119772-73,
indeterminate sentence for an offense under the Revised February 7, 1997)
Penal Code, states that "if the offense is punished by any
other law, the court shall sentence the accused to an DIFFERENCE BETWEEN RECLUSION PERPETUA AND
indeterminate sentence, the maximum term of which shall LIFE IMPRISONMENT
not exceed the maximum fixed by said law and the minimum The penalty of reclusion perpetua is different from life
shall not be less than the minimum term prescribed by the imprisonment. The former carries with it accessory penalties,
same" We hold that this quoted portion of the section whereas life imprisonment does not carry with it any
indubitably refers to an offense under a special law wherein accessory penalties; reclusion perpetua is that provided for
the penalty imposed was not taken from and is without under the Revised Penal Code and under crimes defined by
reference to the Revised Penal Code, as discussed in the special laws using the nomenclature under the Revised
preceding illustrations, such that it may be said that the Penal Code ; life imprisonment is that provided for violations
"offense is punished" under that law. There can be no of the Revised Penal Code. Reclusion Perpetua may be
sensible debate that the aforequoted rule on indeterminate reduced by one or two degrees while life imprisonment
sentence for offenses under special laws was necessary cannot be so reduced. (People -vs- Rolnando Madriaga, GR
because of the nature of the former type of penalties under No. 82293, July 23, 1992.)
said laws which were not included or contemplated in the
scale of penalties in Article 71 of the Code, hence there WHICH IS MORE BURDENSOME LIFE IMPRISONMENT
could be no minimum "within the range of the penalty next OF RECLUSION PERPETUA
lower to that prescribed by the Code for the offense," as is Reclusion perpetua has accessory penalties while life
the rule for felonies therein. In the illustrative examples of imprisonment does not. However, life imprisonment does not
penalties in special laws hereinbefore provided, this rule have a fixed duration or extent while reclusion perpetua has
applied, and would still apply, only to the first and last a duration of from twenty years and one day to forty years.
examples. Furthermore, considering the vintage of Act No.
life imprisonment may span the natural life of the convict. b. to provide an opportunity for his reformation and
(People -versus- Rallagan, 247 SCRA 537) reintegration into the community;
c. to prevent the commission of offenses.
RECLUSION PERPETUA AND LIFE IMPRISONMENT
CANNOT BE INTER-CHANGE WHEN IMPOSED AS
PENALTY SUBMISSION OF PETITION AND TIME OF FILING
OFPETITION
Where the law violated provides for the penalty of reclusion
perpetua, impose the said penalty and not the penalty of life The petition or application for probation must be filed directly
imprisonment. Where the law imposes the penalty of life with the Court which sentenced the accused within 15 days
imprisonment, do not impose reclusion perpetua. (People from date of promulgation of the decision convicting the
-vs- Rolando Madriaga, 211 SCRA 698) accused, or in short within the period to appeal otherwise the
judgment shall become final and the accused shall be
THE REASON WHY RECLUSION PERPETUA HAS A deemed to have waived his right to probation.
RANGE DESPITE THE SAME BEING INDIVISIBLE
EFFECT OF FILING OF PETITION FOR PROBATION
There we also said that "if reclusion perpetua was
reclassified as a divisible penalty, then Article 63 of the Upon filing of petition for probation, the court shall suspend
Revised Penal Code would lose its reason and basis for the execution of sentence.
existence." The imputed duration of thirty (30) years of
reclusion perpetua, therefore, only serves as the basis for Likewise, the filing of a petition for probation shall be
determining the convict's eligibility for pardon or for the deemed a waiver of the right to appeal and in case an
application of the three-fold rule in the service of multiple appeal is made immediately after conviction, a filing of
penalties. (People -vs- Aspolinar Raganas, et al., GR No. petition for probation still within the period to appeal, that is
101188, October 12, 1999) within fifteen days from date of promulgation shall be
deemed a withdrawal of the appeal.

RARE CASE OF APPLICATION OF RPC IN A PENDING RESOLUTION OF PETITION, WHAT ARE THE
SUPPLETORY CHARACTER DESPITE THE PENALTY PRIVILEDGE THAT MAYBE GIVEN TO THE ACCUSED-
BEING LIFE IMPRISONMENT PETITIONER?

Where the accused committed qualified violation of PD 704 1. if the accused, prior to the promulgation of decision of
(fishing with the use of explosives), the imposable penalty for conviction is out on bail, he may be allowed on
which is life imprisonment to death. If the accused is entitled temporary liberty under his bail filed in said case;
to a mitigating circumstance of voluntary surrender, the court 2. if he is under detention, upon motion, he may be allowed
should impose life imprisonment applying, in a suppletory temporary liberty, if he cannot post a bond, on
character, Articles 13 and 63 of the Revised Penal Code. recognizance of a responsible member of a community who
(People -vs- Priscilla Balasa, GR No. 106357, September 3, shall guarantee his appearance whenever
1998) required by the court.

ACCUSED WHO IS SENTENCED TO RECLUSION IN CASE THE APPLICANT FOR PROBATION CANNOT BE
PERPETUA IS STILL ENTITLED TO EITHER FULL OR ¾ PRODUCED BY THE CUSTODIAN ON RECOGNIZANCE,
OF HIS PREVENTIVE IMPRISONMENT WHAT HAPPENS?

If, during the trial, the accused was detained but, after trial, The custodian must be asked to explain why he should not
he was meted the penalty of reclusion perpetua, he is still be cited for contempt for failing to produce the probationer
entitled to the full credit of his preventive imprisonment when required by the court; Summary hearing will be held for
because Article 29 of the Revised Penal Code does not indirect contempt, and if custodian cannot produce the
distinguish between divisible and indivisible penalties. petitioner, nor to explain his failure to produce the petitioner,
(People -vs- Rolando Corpuz, 231 SCRA 480) the custodian on recognizance shall be held in contempt of
court.

QUALIFIED THEFT WHAT IS A POST SENTENCE INVESTIGATION REPORT?

It is a report of the Parole and Probation Officer after

QUALIFIED THEFT IS PENALIZED BY RECLUSION conducting post sentence investigation and interviews
PERPETUA IF AMOUNT INVOLVED IS OVER P22,000.00 containing the circumstances surrounding the offense for
which the petitioner was convicted. The findings should be
Under Article 309 of the Revised Penal Code, the maximum drawn from the court records, police records, statement of
of the penalty for qualified theft is prision mayor to reclusion defendants, the aggrieved party and other persons who may
temporal. However, under Article 310 of the Revised Penal know the petitioner and all other matters material to the
Code, the penalty for the crime shall be two (2) degrees petition.
higher than the specified in Article 309 of the Code. Under
Article 74 of the Revised Penal Code, the penalty higher by It will also include the psychological and social information
one degree than another given penalty, and if such higher regarding the probationer; evaluation of the petitioner;
penalty is death, the penalty shall be reclusion perpetua of suitability for probation; his potential for rehabilitation; and
forty (40) years with the accessory penalties of death under may include the program for supervision and suggested
Article 40 of the Revised Penal Code. The accused shall not terms of conditions of probation and a recommendation
be entitled to pardon before the lapse of forty (40) years. either to deny or grant the probation.
(People -vs- Fernando Canales, 297 SCRA 667)
WHAT ARE THE MANDATORY CONDITIONS OF
PROBATION?
THE PROBATION LAW (P.D. 968) AND ITS
AMENDMENTS a. To present himself to the probation officer concerned for
supervision within 72 hours from receipt of said
PROBATION, ITS MEANING order and

A disposition under which a defendant, after conviction and b. to report to the probation officer at least once a month
sentence, is subject to conditions imposed by the Court and during the period of probation.
under the supervision of a probation officer.
WHAT ARE THE OTHER CONDITIONS OF PROBATION?
PURPOSES OF PROBATION:
a. to promote the correction and rehabilitation of an offender a. cooperate with a program of supervision;
by providing him with personalized b. meet his family responsibilities;
community based treatment; c. devote himself to a specific employment and not to charge
said employment without prior written
approval of the probation officer; 3. Those who have been previously convicted by final
d. comply with a program of payment of civil liability to the judgment of an offense punished by imprisonment of not less
victim of his heirs; than one moth and one day and/or a fine of not less than
e. undergo medical, psychological or psychiatric examination P200.00;
and treatment and/or enter and remain in a 4. Those who have been once on probation under the
specific institution, when required for that purposes; provisions of this decree.
f. pursue a prescribed secular study or vocational training; 5. Those convicted of RA 9156.
g. attend or reside in a facility established for instruction or 6. Those convicted of violation of election laws.
recreation of persons on probation;
h. refrain from visiting houses of ill-repute; PERIOD OF PROBATION
i. abstain from drinking intoxicating beverages to excess;
j. permit the probation officer or an authorized social worker 1. If the probationer has been sentenced to an imprisonment
to visit his home and place of work; of not more than one year, the probation shall not exceed
k. reside at premises approved by the court and not to two years;
change his residence w/o prior written approval; and 2. In all other cases, not to exceed six years;
l. satisfy any other condition related to the rehabilitation of 3. In case the penalty is fine, the probation shall not be less
the probationer and not unduly restrictive of his than the period of subsidiary imprisonment nor more than
liberty or incompatible with his freedom of conscience. twice of the subsidiary imprisonment.
m. plant trees ( see circular of the SC )
AMENDMENT TO SECTION 4 OF PD 968:

"Sec. 4. Grant of Probation. - Subject to the provisions of this

RULES ON OUTSIDE TRAVEL OF PROBATIONER Decree, the trial court may, after it shall have convicted and
sentenced a defendant, and upon application by said
A probationer who desires to travel outside the jurisdiction of defendant within the period for perfecting an appeal,
the city or provincial probation officer for not more than 30 suspend the execution of the sentence and place the
days, the permission of the parole and probation officer must defendant on probation for such period and upon such terms
be sought. If for more than thirty (30) days, aside from the and conditions as it may deem best; Provided, That no
permission of the parole and probation officer, the application for probation shall be entertained or granted if the
permission of the court must likewise be sought. defendant has perfected the appeal from the judgment of
conviction.
EFFECT OF APPEAL BY THE ACCUSED OF HIS
CONVICTION "Probation may be granted whether the sentence imposes a
term of imprisonment or a fine only. An application for
a. If the accused appeals his conviction for the purpose of probation shall be filed with the trial court. The filing of the
totally reversing his conviction, he is deemed to have waived application shall be deemed a waiver of the right to appeal.
his right to probation.
"An order granting or denying probation shall not be
b. The rule that if the accused appeals his conviction only appealable."
with respect to the penalty, as he believes the penalty is
excessive or wrong, as the penalty is probationable, and the Thus, a person who was sentenced to destierro cannot apply
appellate court sustains the accused may still apply for for probation. Reason: it does not involved imprisonment or
probation, has already been abandoned. An appeal fine. (PD 1990)
therefore, irrespective of its purpose, to overturn the entire
decision or only with respect to penalty is a waiver to
probation, has already been abandoned. An appeal JURISPRUDENCE
therefore, irrespective of its purpose, to overturn the entire
decision or only with respect to penalty is a waiver to
probation. UNDERLYING PHILOSOPHY OF PROBATION

CONFIDENTIALITY OF RECORDS OF PROBATION The underlying philosophy of probation is indeed one of

liberality towards the accused. It is not served by a harsh
The investigation report and the supervision and history of a and stringent interpretation of the statutory provisions.
probationer obtained under PD No. 968 and under these Probation is a major step taken by our Government towards
rules shall be privileged and shall not be disclosed directly or the deterrence and minimizing of crime and the
indirectly to anyone other than the probation administration humanization of criminal justice. In line with the public policy
or the court concerned the court which granted the probation behind probation, the right of appeal should not be
or where the probation was transferred may allow the irrevocably lost from the moment a convicted accused files
probationer to inspect the aforesaid documents or his an application for probation. Appeal and probation spring
lawyer, whenever such disclosure may be desirable or from the same policy considerations of justice, humanity,
helpful to them. and compassion. (Yusi v Morales, 4/28/83)

Any government office may ask for the records of probation

from the court for its official use or from the administrator. PROBATION IS NOT A RIGHT BUT A PRIVILEGE

Sec. 29, PD 968: VIOLATION OF CONFIDENTIAL NATURE Probation is a mere privilege and its grant rests solely upon
OF PROBATION RECORDS. The penalty of imprisonment the discretion of the court. As aptly noted in U.S. vs. Durken,
ranging from six months and one day to six years and a fine this discretion is to be exercised primarily for the benefit of
ranging from hundred to six thousand pesos shall be organized society and only incidentally for the benefit of the
imposed upon any person who violates Section 17 hereof. accused. (Tolentino v. Alconcel, G.R. No. 63400, 3/18/83).
Even if a convicted person is not included in the list of
MODIFICATION OF CONDITION OR PERIOD OF offenders disqualified from the benefits of a decree, the grant
PROBATION of probation is nevertheless not automatic or ministerial,
(Pablo Bernardo v. Balagot, 215 SCRA 526) therefore a
The court, on motion, or motu propio may modify the petition for probation may be denied by the Court.
conditions of probation or modify the period of probation as
circumstances may warrant.
MAIN CRITERION FOR DETERMINING WHO MAY BE
GRANTED PROBATION.
WHO ARE DISQUALIFIED TO UNDERGO PROBATION
The main criterion laid down by the Probation law in
1. Those sentenced to serve a maximum term of determining who may be granted probation is based on the
imprisonment of more than six years. penalty imposed and not on the nature of the crime. By the
2. Those convicted of any offense against the security of the relative lightness of the offense, as measured by the penalty
state; imposed, more than by its nature, as the law so ordains the
offender is not such a serious menace to society as to be
wrested away therefrom, as the more dangerous type of living dead, what is worse, they become a grave menace to
criminals should be. Hence, in the case at bar, the first the safety of law-abiding members of society," while
reason given by the respondent judge for his denial of the "peddlers of drugs are actually agents of destruction. The
petition for probation that, "probation will depreciate the deserve no less than the maximum penalty [of death]."
seriousness of the offense committed" would thus be writing
into the law a new ground for disqualifying a first-offender There is no doubt that drug-pushing is a crime which
from the benefits of probation. (Santos v. Cruz-Pano, involves moral turpitude and implies "every thing which is
1/17/83) done contrary to justice, honesty, modesty or good morals"
including "acts of baseness, vileness, or depravity in the
private and social duties which a man owes to his fellowmen
TIMELINESS OF FILING APPLICATION FOR PROBATION or to society in general, contrary to the accepted rule of right
and duty between man and man." Indeed nothing is more
The accused must file a Petition for Probation within the depraved than for anyone to be a merchant of death by
period for appeal. If the decision of conviction has become selling prohibited drugs, an act which, as this Court said in
final and executory, the accused is barred from filing a one case,"often breeds other crimes. It is not what we might
Petition for Probation (Pablo Francisco v. C.A., 4/6/95). call a 'contained' crime whose consequences are limited to
that crime alone, like swindling and bigamy. Court and police
records show that a significant number of murders, rapes,
ORDER DENYING PROBATION NOT APPEALABLE, and similar offenses have been committed by persons under
REMEDY CERTIORARI the influence of dangerous drugs, or while they are 'high.'
While spreading such drugs, the drug-pusher is also
Although an order denying probation is not appealable, the abetting, through his agreed and irresponsibility, the
accused may file a motion for Certiorari from said order commission of other crimes." The image of the judiciary is
(Heirs of Francisco Abueg v. C.A., 219 SCRA 78) tarnished by conduct, which involves moral turpitude. While
indeed the purpose of the Probation Law (P.D. No. 968, as
amended) is to save valuable human material, it must not be
EFFECT OF FILING PETITION FOR PROBATION, WAIVER forgotten that unlike pardon probation does not obliterate the
OF RIGHT TO APPEAL AND FINALITY OF JUDGEMENT crime of which the person under probation has been
convicted. The reform and rehabilitation of the probationer
A judgment of conviction becomes final when the accused cannot justify his retention in the government service. He
files a petition for probation. However, the judgement is not may seek to reenter government service, but only after he
executory until the petition for probation is resolved. The has shown that he is fit to serve once again. It cannot be
filing of the petition for probation is a waiver by the accused repeated too often that a public office is a public trust, which
of his right to appeal the judgement of conviction (Heirs of demands of those in its service the highest degree of
Francisco Abueg v. C.A., supra). morality. (OCA v. Librado 260 SCRA 624, 8/22/96)

MULTIPLE CONVICTIONS IN SEVERAL CASES PETITIONER MAY STILL EXHORT OFFENDER TO

PROBATIONABLE IF PENALTY FOR EACH CONVICTION PERFORM CERTAIN ACTS DESPITE DISCHARGE FROM
IS PROBATIONABLE PROBATION IN CERTAIN CASES

." Evidently, the law does not intend to sum up the penalties Petitioner Arthur M. Cuevas, Jr.'s discharge from probation
imposed but to take each penalty, separately and distinctly without any infraction of the attendant conditions therefor
with the others. Consequently, even if petitioner was and the various certifications attesting to his righteous,
supposed to have served his prison term of one (1) year and peaceful and civic-oriented character prove that he has
one (1) day to one (1) year and eight (8) months of prision taken decisive steps to purge himself of his deficiency in
correccional sixteen (16) times as he was sentenced to moral character and atone for the unfortunate death of Raul
serve the prison term for "each crime committed on each I. Camaligan. The Court is prepared to give him the benefit
date of each case, as alleged in the information(s)," and in of the doubt, taking judicial notice of the general tendency of
each of the four (4) informations, he was charged with the youth to be rash, temerarious and uncalculating. Let it be
having defamed the four (4) private complainants on four (4) stressed to herein petitioner that the lawyer's oath is not a
different, separate days, he was still eligible for probation, as mere formality recited for a few minutes in the glare of
each prison term imposed on petitioner was probationable. flashing cameras and before the presence of select
(Francisco v. CA; 4/16/95) witnesses. Petitioner is exhorted to conduct himself beyond
reproach at all times and to live strictly according to his oath
and the Code of Professional Responsibility. And, to
REASON FOR FIXING CUT OFF POINT AT A MAXIMUM paraphrase Mr. Justice Padilla's comment in the sister case
OF SIX YEARS IMPRISONMENT FOR PROBATION. of Re: Petition of Al Argosino To Take The Lawyer's Oath,
Bar Matter No. 712, March 19, 1997, "[t]he Court sincerely
Fixing the cut-off point at a maximum term of six (6) years hopes that" Mr. Cuevas, Jr., "will continue with the
imprisonment for probation is based on the assumption that assistance he has been giving to his community. As a lawyer
those sentenced to higher penalties pose too great a risk to he will now be in a better position to render legal and other
society, not just because of their demonstrated capability for services to the more unfortunate members of society". (In
serious wrongdoing but because of the gravity and serious Re: Cuevas, Jr.; 1/27/98)
consequences of the offense they might further commit. The
Probation Law, as amended, disqualifies only those who
have been convicted of grave felonies as defined in Art. 9 in EXPIRATION OF PERIOD OF PROBATION IS NOT
relation to Art. 25 of The Revised Penal Code, and not TERMINATION, ORDER OF COURT REQUIRED
necessarily those who have been convicted of multiple
offenses in a single proceeding who are deemed to be less The mere expiration of the period for probation does not,
perverse. Hence, the basis of the disqualification is ipso facto, terminate the probation. Probation is not co-
principally the gravity of the offense committed and the terminus with its period, there must be an order from the
concomitant degree of penalty imposed. Those sentenced to Court of final discharge, terminating the probation. If the
a maximum term not exceeding six (6) years are not accused violates the condition of the probation before the
generally considered callous, hard core criminals, and thus issuance of said order, the probation may be revoked by the
may avail of probation Court (Manuel Bala v. Martinez, 181 SCRA 459).

VIOLATION OF RA 6425, A VALID CAUSE FOR

DISMISSAL IN SERVICE IN THE GOVERNMENT DESPITE ANTI-FENCING LAW
PROBATION OF 1979 (PD NO. 1612)

Drug-pushing, as a crime, has been variously condemned as DEFINITION

"an especially vicious crime," "one of the most pernicious
evils that has ever crept into our society." For those who Fencing as defined in Sec. 2 of PD No. 1612 (Anti-Fencing
become addicted to it "not only slide into the ranks of the Law) is “the act of any person who, with intent to gain for
himself or for another, shall buy, receive, possess, keep, RULES REGARDING BUY AND SELL OF GOODS
acquire, conceal, sell or dispose of, or shall buy and sell, or PARTICULARLY SECOND HAND GOODS
in any manner deal in any article, item, object or anything of
value which he knows or should be known to him, or to have The law requires the establishment engaged in the buy and
been derived from the proceeds of the crime of robbery or sell of goods to obtain a clearance or permit to sell "used
theft. (Dizon-Pamintuan vs. People, GR 111426, 11 July 94). second hand items", to give effect to the purpose of the law
in putting an end to buying and selling stolen items. Failure
of which makes the owner or manager liable as a fence.
BRIEF HISTORY OF PD 1612 OR THE ANTI-FENCING
LAW The Implementing Rules provides for the guidelines of
issuance of clearances or permits to sell used or
Presidential Decree No. 1612 or commonly known as the secondhand items. It provided for the definition of the
Anti-Fencing Law of 1979 was enacted under the authority of following terms:
therein President Ferdinand Marcos. The law took effect on
March 2, 1979. The Implementing Rules and Regulations of 1. "Used secondhand article" shall refer to any goods,
the Anti-Fencing Law were subsequently formulated and it article, items, object or anything of value obtained from an
took effect on June 15, 1979. unlicensed dealer or supplier, regardless of whether the
same has actually or in fact been used.
THE PURPOSE OF ENACTING PD 1612
2. "Unlicensed dealer/supplier" shall refer to any persons,
The Anti-Fencing Law was made to curtail and put an end to partnership, firm, corporation, association or any other entity
the rampant robbery of government and private properties. or establishment not licensed by the government to engage
With the existence of "ready buyers", the "business" of in the business of dealing in or of supplying the articles
robbing and stealing have become profitable. Hence, a law defined in the preceding paragraph;
was enacted to also punish those who buy stolen properties.
For if there are no buyers then the malefactors could not 3. "Store", "establishment" or "entity" shall be construed to
profit from their wrong doings. include any individual dealing in the buying and selling used
secondhand articles, as defined in paragraph hereof;

WHAT IS FENCING LAW AND HOW IT CAN BE 4. "Buy and Sell" refer to the transaction whereby one
COMMITTED purchases used secondhand articles for the purpose of
resale to third persons;
"Fencing" is the act of any person who, with intent to gain for
himself or for another, shall buy receive, possess, keep, 5. "Station Commander" shall refer to the Station
acquire, conceal, sell or dispose of, or shall buy and sell, or Commander of the Integrated National Police within the
in any other manner deal in any article, item, object or territorial limits of the town or city district where the store,
anything of value which he knows, or should be known to establishment or entity dealing in the buying and selling of
him, to have been derived from the proceeds of the crime of used secondhand articles is located.
robbery or theft. A "Fence" includes any person, firm,
association corporation or partnership or other organization
who/ which commits the act of fencing. PROCEDURE FOR SECURING PERMIT/CLEARANCE

The Implementing Rules provided for the method of

WHO ARE LIABLE FOR THE CRIME OF FENCING; AND obtaining clearance or permit. No fee will be charged for the
ITS PENALTIES: issuance of the clearance/permit. Failure to secure
clearance/permit shall be punished as a fence, that may
The person liable is the one buying, keeping, concealing and result to the cancellation of business license.
selling the stolen items. If the fence is a corporation,
partnership, association or firm, the one liable is the 1. The Station Commander shall require the owner of a store
president or the manager or the officer who knows or should or the President, manager or responsible officer in having in
have know the fact that the offense was committed. stock used secondhand articles, to submit an initial affidavit
within thirty (30) days from receipt of notice for the purpose
The law provide for penalty range for persons convicted of thereof and subsequent affidavits once every fifteen (15)
the crime of fencing. Their penalty depends on the value of days within five (5) days after the period covered, which shall
the goods or items stolen or bought: contain:
a. complete inventory of such articles including the names
a. The penalty of prision mayor, if the value of the property and addresses from whom the articles were acquired.
involved is more than 12,000 pesos but not exceeding b. Full list of articles to be sold or offered for sale including
22,000 pesos; if the value of such property exceeds the the time and place of sale
latter sum, the penalty provided in this paragraph shall be c. Place where the articles are presently deposited.
imposed in its maximum period, adding one year for each
additional 10,000 pesos; but the total penalty which may be The Station Commander may, require the submission of an
imposed shall not exceed twenty years. In such cases, the affidavit accompanied by other documents showing proof of
penalty shall be termed reclusion temporal and the legitimacy of acquisition.
accessory penalty pertaining thereto provided in the Revised
Penal Code shall also be imposed. 2. Those who wish to secure the permit/clearance, shall file
an application with the Station Commander concerned,
b. The penalty of prision correccional in its medium and which states:
maximum periods, if the value of the property robbed or a. name, address and other pertinent circumstances
stolen is more than 6,000 pesos but not exceeding 12, 000 b. article to be sold or offered for sale to the public and the
pesos; name and address of the unlicensed dealer or supplier from
whom such article was acquired.
c. The penalty of prision correccional in its minimum and c. Include the receipt or document showing proof of
medium periods, if the value of the property involved is more legitimacy of acquisition.
than 200 pesos but not exceeding 6,000 pesos; 3. The Station Commander shall examine the documents
attached to the application and may require the presentation
d. The penalty of arresto mayor in its medium period to of other additional documents, if necessary, to show
prision correccional in its minimum period, if the value of the satisfactory proof of the legitimacy of acquisition of the
property involved is over 50 but not exceeding 200 pesos; article, subject to the following conditions:
a. if the Station Commander is not satisfied with the proof of
e. The penalty of arresto mayor in its medium period if such legitimacy of acquisition, he shall cause the publication of
value is over five (5) pesos but not exceeding 50 pesos. the notice, at the expense of the one seeking
clearance/permit, in a newspaper of general circulation for
f. The penalty of arresto mayor in its minimum period if such two consecutive days, stating:
value does not exceed 5 pesos. > articles acquired from unlicensed dealer or supplier
> the names and addresses of the persons from whom they bodega and subsequently bought or disposed of the nine (9)
were acquired pieces of stolen tires with rims owned by Loui Anton Bond.
> that such articles are to be sold or offered for sale to the
public at the address of the store, establishment or other The accused known or should have known that the goods
entity seeking the clearance/permit. were stolen. As pointed out in the case of People vs.
4. If there are no newspapers in general circulation, the party Adriatico, the court in convicting Norma Adriatico, stated that
seeking the clearance/permit shall, post a notice daily for it was impossible for her to know that the jewelry were stolen
one week on the bulletin board of the municipal building of because of the fact that Crisilita was willing to part with a
the town where the store, firm, establishment or entity is considerable number of jewelry at measly sum, and this
located or, in the case of an individual, where the articles in should have apprised Norma of the possibility that they were
his possession are to be sold or offered for sale. stolen goods. The approximate total value of the jewelry
5. If after 15 days, upon expiration of the period of were held to be at P20,000.00, and Norma having bought it
publication or of the notice, no claim is made to any of the from Crisilita for only P2,700. The court also considered the
articles enumerated in the notice, the Station Commander fact that Norma engage in the business of buying and selling
shall issue the clearance or permit sought. gold and silver, which business is very well exposed to the
6. If before expiration of the same period for the publication practice of fencing. This requires more than ordinary case
of the notice or its posting, it shall appear that any of the and caution in dealing with customers. As noted by the trial
articles in question is stolen property, the Station court:
Commander shall hold the article in restraint as evidence in
any appropriate case to be filed. ". . . the Court is not inclined to accept the accused's theory
Articles held in restraint shall kept and disposed of as the of buying in good faith and disclaimer of ever seeing, much
circumstances of each case permit. In any case it shall be more, buying the other articles. Human experience belies
the duty of the Station Commander concerned to her allegations as no businessman or woman at that, would
advise/notify the Commission on Audit of the case and let go of such opportunities for a clean profit at the expense
comply with such procedure as may be proper under of innocent owners.’’
applicable existing laws, rules and regulations.
7. The Station Commander shall, within seventy-two (72) The Court in convicting Ernesto Dunlao Sr., noted that the
hours from receipt of the application, act thereon by either stolen articles composed of farrowing crates and G.I. pipes
issuing the clearance/permit requested or denying the same. were found displayed on petitioner's shelves inside his
Denial of an application shall be in writing and shall state in compound. (Dunalao, Sr. v. CA, 08/22/96)
brief the reason/s thereof.
8. Any party not satisfied with the decision of the Station In the case of People v. Muere (G.R.12902, 10/18/94), the
Commander may appeal the same within 10 days to the third element was not proven. This case involves the selling
proper INP (now PNP) District Superintendent and further to of alleged stolen Kenwood Stereo Unit in the store Danvir
the INP (now PNP) Director. The decision of the Director can Trading, owned by the spouses Muere. The store is engaged
still be appealed top the Director-General, within 10 days, in buying and selling of second hand merchandise located at
whose decision may be appealed with the Minister (now Pasay Road, Makati. The said stereo was bought from
Secretary) of National Defense, within 15 days, which Wynn's Audio, an existing establishment. The court held that
decision is final. there is no proof that the spouses Muere, had knowledge of
the fact that the stereo was stolen. The spouses Muere
purchased the stereo from a known merchant and the unit is
PRESUMPTION displayed for sale in their store. These actions are not
indicative of a conduct of a guilty person.
Mere possession of any good, article, item, object or
anything fo value which has been the subject of robbery or On the same vein, the third element did not exist in the case
thievery, shall be prima facie evidence of fencing. of D.M. Consunji, Inc. (Consunji v. Esguerra, 07/30/96)
where the subject of the court action are the alleged stolen
ELEMENTS phelonic plywood owned by D.M. Consunji, Inc., later found
to be in the premises of MC Industrial Sales and Seato
1. A crime of robbery or theft has been committed; trading Company, owned respectively by Eduardo Ching and
2. The accused, who is not a principal or accomplice in the the spouses Sy. Respondents presented sales receipts
commission of the crime of robbery or theft, buys, receives, covering their purchase of the items from Paramount
possess, keeps, acquires, conceals, sells, or disposes, or Industrial, which is a known hardware store in Caloocan,
buys and sells, or in any manner deals in any article, item, thus they had no reason to suspect that the said items were
object or anything of value, which has been derived from the products of theft.
proceeds of the said crime;
3. The accused knows or should have known that the said The last element is that there is intent to gain for himself or
article, item, or object or anything of value has been derived for another. However, intent to gain need not be proven in
from the proceeds of the crime of robbery or theft; and crimes punishable by a special law such as the Anti-Fencing
4. There is, on the part of the accused, intent to gain for Law. The crimes punishable by special laws are called "acts
himself or for another. (Dizon-Pamintuan vs People, GR mala prohibita". The rule on the subject is that in acts mala
111426, 11 July 94) prohibita, the only inquiry is that, has the law been violated?
(in Gatdner v. People, as cited in US v. Go Chico, 14 Phils.
As regards the first element, the crime of robbery or theft 134) When the act is prohibited by law, intent is immaterial.
should have been committed before crime of fencing can be
committed. The person committing the crime of robbery or Likewise, dolo or deceit is immaterial in crimes punishable
theft, may or may not be the same person committing the by special statute like the Anti-Fencing Law. It is the act itself
crime of fencing. As in the case of D.M. Consunji, Inc., vs. which constitutes the offense and not the motive or intent.
Esguerra, quantities of phelonic plywood were stolen and the Intent to gain is a mental state, the existence if which is
Court held that qualified theft had been committed. In People demonstrated by the overt acts of the person. The mental
vs. Lucero there was first a snatching incident, where the state is presumed from the commission of an unlawful act.
bag of Mrs. Maripaz Bernard Ramolete was snatch in the (Dunlao v. CA) again, intent to gain is a mental state, the
public market of Carbon, Cebu City, where she lost a existence of which is demonstrated by the overt acts of
Chinese Gold Necklace and pendant worth some P4,000.00 person, as the keeping of stolen items for subsequent
to snatchers Manuel Elardo and Zacarias Pateras. The selling.
snatchers sold the items to Manuel Lucero. Consequently,
Lucero was charged with violation of the Anti-Fencing Law. A FENCE MAY BE PROSECUTED UNDER THE RPC OR
However, in this case, no eyewitness pointed to Lucero as PD 1612
the perpetrator and the evidence of the prosecution was not
strong enough to convict him. The state may thus choose to prosecute him either under the
RPC or PD NO. 1612 although the preference for the latter
The second element speaks of the overt act of keeping, would seem inevitable considering that fencing is a malum
buying, receiving, possessing, acquiring, concealing, selling prohibitum, and PD No. 1612 creates a presumption of
or disposing or in any manner deals with stolen items. It is fencing and prescribes a higher penalty based on the value
thus illustrated in the case of Lim vs. Court of Appeals, of the property. (supra)
where the accused, Juanito Lim stored and kept in his
MERE POSSESSION OF STOLEN ARTICLE PRIMA FACIE It was incumbent upon petitioner to overthrow this
EVIDENCE OF FENCING presumption by sufficient and convincing evidence. (Caoili v.
CA; GR 128369, 12/22/97)
Since Sec. 5 of PD NO. 1612 expressly provides that “mere
possession of any good, article, item, object or anything of
value which has been the subject of robbery or thievery shall BATAS PAMBANSA BLG. 22
be prima facie evidence of fencing” it follows that the BOUNCING CHECKS LAW
accused is presumed to have knowledge of the fact that the
items found in her possession were the proceeds of robbery
or theft. The presumption does not offend the presumption of ACTS PUNISHABLE:
innocence enshrined in the fundamental law.
a. any person who makes or draws and issues any check to
apply on account or for value, knowing at the time of issue
DISTINCTION BETWEEN FENCING AND ROBBERY that he does not have sufficient funds in or credit with the
drawee bank, for the payment of such check in full upon its
The law on fencing does not require the accused to have presentment, which check is subsequently dishonored by the
participation in the criminal design to commit or to have been drawee bank for insufficiency of funds, or credit, or would
in any wise involved in the commission of the crime of have been dishonored for the same reason had not the
robbery or theft. Neither is the crime of robbery or theft made drawee, without any valid reason, ordered the bank to stop
to depend on an act of fencing in order that it can be payment.
consummated. (People v De Guzman, GR 77368).
b. Any person who having sufficient funds in or credit with
Robbery is the taking of personal property belonging to the drawee bank when he makes or draws and issues a
another, with intent to gain, by means of violence against or check, shall fail to keep sufficient funds or to maintain a
intimidation of any person, or using force upon anything. credit to cover the full amount of the check if presented
within a period of ninety days from date appearing thereon,
On the other hand, fencing is the act of any person who, with for which reason, it is dishonored by the drawee bank.
intent to gain for himself or for another, shall buy, receive,
possess, keep, acquire, conceal, sell or dispose of, or shall HOW TO ESTABLISH GUILT OF ACCUSED IN BP 22
buy and sell, or in any other manner deal in any article, item,
object or anything of value which he knows, or shall be To establish her guilt, it is indispensable that the checks she
known to him, to have been derived from the proceeds of the issued for which she was subsequently charged, be offered
crime of robbery or theft. in evidence because the gravamen of the offense charged is
the act of knowingly issuing a check with insufficient funds.
Clearly, it was error to convict complainant on the basis of
FENCING AS A CRIME INVOLVING MORAL TURPITUDE. her letter alone. Nevertheless, despite this incorrect
interpretation of a rule on evidence, we do not find the same
In violation of the Anti-Fencing Law, actual knowledge by the as sufficiently constitutive of the charges of gross ignorance
"fence" of the fact that property received is stolen displays of the law and of knowingly rendering an unjust decision.
the same degree of malicious deprivation of one's rightful Rather, it is at most an error in judgment, for which, as a
property as that which animated the robbery or theft which general rule, he cannot be held administratively liable. In this
by their very nature are crimes of moral turpitude. (Dela regard, we reiterate the prevailing rule in our jurisdiction as
Torre v. COMELEC 07/05/96) established by current jurisprudence. (Gutierrez v Pallatao;
8/8/98)
Moral turpitude can be derived from the third element -
accused knows or should have known that the items were
stolen. Participation of each felon, one being the robber or NOTICE, AN INDISPENSABLE REQUISITE FOR
the thief or the actual perpetrators, and the other as the PROSECUTION
fence, differs in point in time and degree but both invaded
one's peaceful dominion for gain. (Supra) Both crimes Section 3 of BP 22 requires that the holder of the check or
negated the principle of each person's duty to his fellowmen the drawee bank, must notify the drawer of the check that
not to appropriate things that they do not own or return the same was dishonored, if the same is presented within
something acquired by mistake or with malice. This signifies ninety days from date of issuance, and upon notice the
moral turpitude with moral unfitness. drawer has five days within which to make arrangements for
the payment of the check or pay the same in full.
In the case of Dela Torre, he was declared disqualified from
running the position of Mayor in Cavinti, Laguna in the last
May 8, 1995 elections because of the fact of the DUTY OF THE DRAWEE BANK
disqualification under Sec. 40 of the Local Government
Code, of persons running for elective position -"Sec. 40 The drawee bank has the duty to cause to be written, printed
Disqualifications - (a) Those sentenced by final judgement or stamped in plain language thereon, or attached thereto
for an offense involving moral turpitude..." the reason for the drawee’s dishonor or refusal to pay the
same. If the drawee bank fails to do so, prosecution for
Dela Torre was disqualified because of his prior conviction of violation of BP 22 may not prosper.
the crime of fencing wherein he admitted all the elements of
the crime of fencing. RULE IN CASE OF DISHONOR DUE TO STOP PAYMENT

The drawee bank has not only the duty to indicate that the
ESSENCE OF VIOLATION OF PD 1612, SEC. 2 OR ANTI- drawer stopped the payment and the reason for the stop
FENCING payment. The drawee bank is further obligated to state
whether the drawer of the check has sufficient funds in the
PD 1612, Section 2 thereof requires that the offender buys bank or not.
or otherwise acquires and then sells or disposes of any
object of value which he knows or should he known to him to
have been derived from the proceeds of the crime of robbery AGREEMENT OF PARTIES REGARDING THE CHECK IS
or theft. (Caoili v CA; GR 128369, 12/22/97) NOT A DEFENSE

In the case of People vs Nitafan, 215 SCRA, the agreement

PROOF OF PURCHASE WHEN GOODS ARE IN of the parties in respect to the issuance of the check is
POSSESSION OF OFFENDER NOT NECESSARY IN ANTI- inconsequential or will not affect the violation of BP 22, if the
FENCING check is presented to the bank and the same was
dishonored due to insufficiency of funds.
The law does not require proof of purchase of the stolen
articles by petitioner, as mere possession thereof is enough
to give rise to a presumption of fencing. CHECKS ISSUED IN PAYMENT OF INSTALLMENT
Checks issued in payment for installment covered by
promissory note and said checks bounced, the drawer is
liable if the checks were drawn against insufficient funds, DIFFERENCE BETWEEN ESTAFA AND VIOLATION OF
especially that the drawer, upon signing of the promissory BP 22
note, closed his account. Said check is still with
consideration. (Caram Resources v. Contreras) In the crime of estafa, deceit and damage are essential
elements of the offense and have to be established with
In this case, the Judge was even held administratively liable. satisfactory proof to warrant conviction. For violation of the
Bouncing Checks Law, on the other hand, the elements of
deceit and damage are neither essential nor required.
CHECK DRAWN AGAINST A DOLLAR ACCOUNT. RULE: Rather, the elements of B.P. Blg. 22 are (a) the making,
drawing and issuance of any check to apply to account or for
A check drawn against a dollar account in a foreign country value; (b) the maker, drawer or issuer knows at the time of
is still violative of the provisions of BP 22 so long as the issuance that he does not have sufficient funds in or credit
check is issued, delivered or uttered in the Philippines, even with the drawee bank for the payment of such check in full
if the same is payable outside of the Philippines (De Villa v. upon its presentment; and, (c) the check is subsequently
CA) dishonored by the drawee bank for insufficiency of funds or
credit or would have been dishonored for the same reason
GUARANTEE CHECKS, DRAWER, STILL LIABLE had not the drawer, without valid reason, ordered the bank to
stop payment. (Uy v Court of Appeals, GR 119000, July 28,
The mere act of issuing a worthless check is punishable. 1997)
Offender cannot claim good faith for it is malum prohibitum.

In the case of Magno vs CA, when accused issued a check JURISDICTION IN BP 22 CASES
as warranty deposit for lease of certain equipment, even
knowing that he has no funds or insufficient funds in the In respect of the Bouncing checks case, the offense also
bank is not liable, if the lessor of the equipment pulled out appears to be continuing in nature. It is true that the offense
the loaned equipment. The drawer has no obligation to make is committed by the very fact of its performance (Colmenares
good the check because there is no more deposit to vs. Villar, No. L-27126, May 29, 1970, 33 SCRA 186); and
guaranty. that the Bouncing Checks Law penalizes not only the fact of
dishonor of a check but also the act of making or drawing
and issuance of a bouncing check (People vs. Hon.
ISSUANCE OF GUARANTEE CHECKS WHICH WAS Veridiano, II, No. L-62243, 132 SCRA 523). The case,
DISHONORED IN VIOLATION AND PURPOSE OF THE therefore, could have been filed also in Bulacan. As held in
LAW Que vs. People of the Philippines, G.R. Nos. 75217-18,
September 11, 1987 "the determinative factor (in
The intention of the framers of BP 22 is to make a mere act determining venue) is the place of the issuance of the
of issuing a worthless check malum prohibitum. In check". However, it is likewise true that knowledge on the
prosecutions for violation of BP 22, therefore, prejudice or part of the maker or drawer of the check of the insufficiency
damage is not prerequisite for conviction. of his funds, which is an essential ingredient of the offense is
by itself a continuing eventuality, whether the accused be
The agreement surrounding the issuance of the checks need within one territory or another (People vs. Hon. Manzanilla,
not be first locked into, since the law has provided that the G.R. Nos. 66003-04, December 11, 1987). Accordingly,
mere issuance of any kind of check; regardless of the intent jurisdiction to take cognizance of the offense also lies in the
of the parties, i.e., whether the check is intended merely to Regional Trial Court of Pampanga.
serve as guarantee or deposit, but which checks is
subsequently dishonored, makes the person who issued the And, as pointed out in the Manzanilla case, jurisdiction or
check liable. (Lazaro vs CA, et al., GR 105461). venue is determined by the allegation in the Information,
which are controlling (Arches vs. Bellosillo, 81 Phil. 190,
cited in Tuzon vs. Cruz, No. L-27410, August 28, 1975, 66
CAN A PERSON BE HELD LIABLE FOR ISSUING A SCRA 235). The Information filed herein specifically alleges
CHECK WITH SUFFICIENT FUNDS FOR VIOLATION OF that the crime was committed in San Fernando Pampanga
BP 22? and therefore within the jurisdiction of the Court below.

Yes. Paragraph 2 of Section 1 of BP 22 provides: This ruling was reiterated in the case of Lim vs. Rodrigo, 167
SCRA 487, where it was held:
The same penalty shall be imposed upon any person who
having sufficient funds in or credit with the drawee bank Besides, it was held in People v. Hon. Manzanilla, supra,
when he makes or draws and issues a check, shall fail to that as "violation of the bad checks act is committed when
keep sufficient funds or to maintain a credit to cover the full one 'makes or draws and issues any check [sic] to apply on
amount of the check if presented within a period of 90 days account or for value, knowing at the time issue that he does
from the date appearing thereon, for which reason, it is not have sufficient funds' or having sufficient funds in or
dishonored by the drawee bank. credit with the drawee bank . . . shall fail to keep sufficient
funds or to maintain a credit to cover the full amount of the
check if presented within a period of ninety (90) days from
RULE ON RENDERING UNJUST JUDGMENT, the date appearing thereon, for which reason it is dishonored
IGNORANCE, ETC. BY A JUDGE by the drawee bank," "knowledge" is an essential ingredient
of the offense charge. As defined by the statute, knowledge,
In the case of De la Cruz vs. Concepcion this Court is, by itself, a continuing eventuality, whether the accused be
declared: within one territory or another. This being the case, the
Regional Trial Court of Baguio City has jurisdiction to try
"Mere errors in the appreciation of evidence, unless so gross Criminal Case No. 2089-R (688).
and patent as to produce an inference of ignorance or bad
faith, or of knowing rendition of an unjust decision, are Moreover, we ruled in the same case of People v. Hon.
irrelevant and immaterial in an administrative proceeding Manzanilla, reiterated in People vs. Grospe, supra, that
against him. No one, called upon to try facts or interpret the jurisdiction or venue is determined by the allegations in the
law in the process of administering justice, can be infallible in information. The allegation in the information under
his judgment. All that is expected of him is that he follow the consideration that the offense was committed in Baguio City
rules prescribed to ensure a fair and impartial hearing, is therefore controlling and sufficient to vest jurisdiction upon
assess the different factors that emerge therefrom and bear the Regional Trial Court of Baguio City.
on the issues presented, and on the basis of the conclusions
he finds established, with only his conscience and In the case at bench it appears that the three (3) checks
knowledge of the law to guide him, adjudicate the case were deposited in Lucena City. As to the second error
accordingly." (Gutierrez v Pallatao; Adm. Matter #RTJ-95- wherein the petitioner asserted that the checks were issued
1326, July 8, 1998) "as a guarantee only for the feeds delivered to him" and that
there is no estafa if a check is issued in payment of a pre- between the Government and any other part, wherein the
existing obligation, the Court of Appeals pointed out that the public officer in his official capacity has to intervene under
petitioner obviously failed to distinguish a violation of B.P. the law.
Blg. 22 from estafa under Article 315 (2) [d] of the Revised
Penal Code. It further stressed that B.P. Blg. 22 applies even (c) Directly or indirectly requesting or receiving any gift,
in cases where dishonored checks were issued as a present or other pecuniary or material benefit, for himself or
guarantee or for deposit only, for it makes no distinction as for another, from any person for whom the public officer, in
to whether the checks within its contemplation are issued in any manner or capacity, has secured or obtained, or will
payment of an obligation or merely to guarantee the said secure or obtain, any Government permit or license, in
obligation and the history of its enactment evinces the consideration for the help given or to be given, without
definite legislative intent to make the prohibition all- prejudice to Section thirteen of this Act.
embracing. (Ibasco vs CA, 9/5/96)
(d) Accepting or having any member of his family accept
employment in a private enterprise which has pending
ACTUAL KNOWLEDGE OF INSUFFICIENCY OF FUNDS official business with him during the pendency thereof or
ESSENTIAL IN BP 22 within one year after its termination.

Knowledge of insufficiency of funds or credit in the drawee (e) Causing any undue injury to any party, including the
bank for the payment of a check upon its presentment is an Government, or giving any private party any unwarranted
essential element of the offense. There is a prima facie benefits, advantage or preference in the discharge of his
presumption of the existence of this element from the fact of official administrative or judicial functions through manifest
drawing, issuing or making a check, the payment of which partiality, evident bad faith or gross inexcusable negligence.
was subsequently refused for insufficiency of funds. It is This provision shall apply to officers and employees of
important to stress, however, that this is not a conclusive offices or government corporations charged with the grant of
presumption that forecloses or precludes the presentation of licenses or permits or other concessions.
evidence to the contrary. (Lim Lao v CA; 6/20/97)
( f ) Neglecting or refusing, after due demand or request,
without sufficient justification, to act within a reasonable time
WHEN LACK OF KNOWLEDGE AND LACK OF POWER on any matter pending before him for the purpose of
TO FUND THE CHECKS IN CASES OF BP 22 A DEFENSE obtaining, directly or indirectly, from any person interested in
the matter some pecuniary or material benefit or advantage,
After a thorough review of the case at bar, the Court finds or for the purpose of favoring his own interest or giving
that Petitioner Lina Lim Lao did not have actual knowledge undue advantage in favor of or discriminating against any
of the insufficiency of funds in the corporate accounts at the other interested party.
time she affixed her signature to the checks involved in this
case, at the time the same were issued, and even at the time (g) Entering, on behalf of the Government, into any contract
the checks were subsequently dishonored by the drawee or transaction manifestly and grossly disadvantageous to the
bank. same, whether or not the public officer profited or will profit
thereby.
The scope of petitioner's duties and responsibilities did not (h) Director or indirectly having financing or pecuniary
encompass the funding of the corporation's checks; her interest in any business, contract or transaction in
duties were limited to the marketing department of the connection with which he intervenes or takes part in his
Binondo branch. Under the organizational structure of official capacity, or in which he is prohibited by the
Premiere Financing Corporation, funding of checks was the Constitution or by any law from having any interest.
sole responsibility of the Treasury Department. (Lim Lao v
CA; 6/20/97 (i) Directly or indirectly becoming interested, for personal
gain, or having a material interest in any transaction or act
requiring the approval of a board, panel or group of which he
LACK OF ADEQUATE NOTICE OF DISHONOR, A is a member, and which exercises discretion in such
DEFENSE approval, even if he votes against the same or does not
participate in the action of the board, committee, panel or
There can be no prima facie evidence of knowledge of group.
insufficiency of funds in the instant case because no notice Interest for personal gain shall be presumed against those
of dishonor was actually sent to or received by the petitioner. public officers responsible for the approval of manifestly
unlawful, inequitable, or irregular transaction or acts by the
The notice of dishonor may be sent by the offended party or board, panel or group to which they belong.
the drawee bank. The trial court itself found absent a
personal notice of dishonor to Petitioner Lina Lim Lao by the ( j) Knowingly approving or granting any license, permit,
drawee bank based on the unrebutted testimony of Ocampo privilege or benefit in favor of any person not qualified for or
"(t)hat the checks bounced when presented with the drawee not legally entitled to such license, permit, privilege or
bank but she did not inform anymore the Binondo branch advantage, or of a mere representative or dummy of one
and Lina Lim Lao as there was no need to inform them as who is not so qualified or entitled.
the corporation was in distress." The Court of Appeals
affirmed this factual finding. Pursuant to prevailing (k) Divulging valuable information of a confidential character,
jurisprudence, this finding is binding on this Court. (Lim Lao acquired by his office or by him on account of his official
v CA; 6/20/97) position to unauthorized persons, or releasing such
information in advance of its authorized release date.

ANTI-GRAFT & CORRUPT PRACTICES ACT UNEXPLAINED WEALTH, MEANING

(RA NO 3019)
Prima facie evidence of and dismissal due to unexplained
wealth. If in accordance with the provisions of RA 1379, a
ANTI-GRAFT AND CORRUPT PRACTICES ACT public official has been found to have acquired during his
incumbency, whether in his name or in the name of other
Corrupt practices of public officers. persons, an amount of property and/or money manifestly out
of proportion to his salary and to his other lawful income, that
(a) Persuading, inducing or influencing another public officer fact shall be a ground for dismissal or removal.
to perform an act constituting a violation of rules and
regulations duly promulgated by competent authority or an Note: Unsolicited gifts or presents of small or insignificant
offense in connection with the official duties of the latter, or value shall be offered or given as a mere ordinary token of
allowing himself to be persuaded, induced, or influenced to gratitude or friendship according to local customs or usage
commit such violation or offense. shall be exempted from the provision of this act.

(b) Directly or indirectly requesting or receiving any gift, MEANING OF “CAUSING UNDUE INJURY”
present, share, percentage, or benefit, for himself or for any
other person, in connection with any contract or transaction
The act of giving any private party any unwarranted benefit,
advantage or preference is not an indispensable element of SUSPENSION UNDER R.A. 3019 MANDATORY BUT
causing any undue injury to any part, although there may be COURTS ARE ALLOWED TO DETERMINE
instances where both elements concur. (Santiago vs WHETHER INFORMATION IS VALID OR NOT
Garchitorena, et al., 2 Dec. 93).
It is well settled that Section 13 of RA 3019 makes it
In Mejoroda v Sandiganbayan, the Supreme Court has ruled mandatory for the Sandiganbayan (or the Court) to suspend
that the offender in causing undue injury does not refer only any public officer against whom a valid information charging
to those who are in charge of giving permits, licenses or violation of this law, Book II, Title 7 of the RPC, or any
concessions but all acts of public officers or employees offense involving fraud upon government or public funds or
which have caused undue injury to others. property is filed in court. The court trying a case has neither
discretion nor duty to determine whether preventive
suspension is required to prevent the accused from using his
ELEMENTS OF NEGLECT OF DUTY UNDER SEC. 3 OF office to intimidate witnesses or frustrate his prosecution or
RA 3019 continue committing malfeasance in office. All that is
required is for the court to make a finding that the accused
a. the offender is a public officer; stands charged under a valid information for any of the
b. the said officer has neglected or has refused to act without above-described crimes for the purpose of granting or
sufficient justification after due demand or request has been denying the sought for suspension. (Bolastig vs.
made upon him; Sandiganbayan, G.R. No. 110503 [August 4, 1994], 235
c. reasonable time has elapsed from such demand or SCRA 103).In the same case, the Court held that "as applied
request without the public officer having acted on the matter to criminal prosecutions under RA 3019, preventive
pending before him; suspension will last for less than ninety (90) days only if the
d. such failure to so act is for the purpose of obtaining case is decided within that period; otherwise, it will continue
directly or indirectly from any person interested in the matter for ninety (90) days." (Conducto v. Monzon; A.M. No. MTJ-
some pecuniary or material benefit or advantage in favor of 98-1147, July 2, 1998)
an interested party or discriminating against another.
Coronado v Sandiganbayan.
PUBLIC OFFICER MAY BE SUSPENDED FROM HIS
PRESENT POSITION EVEN IF THE CRIME WHICH HE IS
WHERE PUBLIC OFFICER ACTED WITH MANIFEST BEING CHARGED WAS COMMITTED DURING HIS
PARTIALITY, EVIDENT BAD FAITH, OR INEXCUSABLE PREVIOUS TERM
NEGLIGENCE
Judge Monzon's contention denying complainant's Motion
Sec. 3. Corrupt practices of public officers. - In addition to for Suspension because "offenses committed during the
acts or omissions of public officers already penalized by previous term (is) not a cause for removal during the present
existing law, the following shall constitute corrupt practices of term" is untenable. In the case of Rodolfo E. Aguinaldo vs.
any public officer and are hereby declared to be unlawful: Hon. Luis Santos and Melvin Vargas, 212 SCRA 768, the
Court held that "the rule is that a public official cannot be
xxx xxx xxx removed for administrative misconduct committed during a
prior term since his re-election to office operates as a
(e). Causing any undue injury to any party, including the condonation of the officer's previous misconduct committed
Government, or giving any private party any unwarranted during a prior term, to the extent of cutting off the right to
benefits, advantage or preference in the discharge of his remove him therefor. The foregoing rule, however, finds no
official administrative or judicial functions through manifest application to criminal cases . . ."
partiality, evident bad faith or gross inexcusable negligence. Likewise, it was specifically declared in the case of Ingco vs.
This provision shall apply to officers and employees of Sanchez, G.R. No. L-23220, 18 December 1967, 21 SCRA
offices or government corporations charged with the grant of 1292, that "The ruling, therefore, that 'when the people have
licenses or permits or other concessions. elected a man to office it must be assumed that they did this
with knowledge of his life and character and that they
disregarded or forgave his faults or misconduct if he had
VIOLATION OF SECTION 3 (E) OF RA 3019 REQUIRES been guilty of any' refers only to an action for removal from
PROOF OF THE FOLLOWING FACTS, VIZ: office and does not apply to a criminal case"

a. the accused is a public officer discharging administrative Clearly, even if the alleged unlawful appointment was
or official functions or private persons charged in conspiracy committed during Maghirang's first term as barangay
with them; chairman and the Motion for his suspension was only filed in
1995 during his second term, his re-election is not a bar to
b. the public officer committed the prohibited act during the his suspension as the suspension sought for is in connection
performance of his official duty or in relation to his public with a criminal case. (Conducto v. Monzon; A.M. No. MTJ-
position; 98-1147, July 2, 1998)

c. the public officer acted with manifest partiality evident bad

faith or gross, inexcusable negligence; and RE-ELECTION IN PUBLIC OFFICE EXTINGUISHING
ONLY HIS ADMINISTRATIVE LIABILITY BUT
d. his action caused undue injury to the government or any NOT HIS CRIMINAL LIABILITY
private party, or gave any party any unwarranted benefit,
advantage or preference to such parties. As early as 18 December 1967 in Ingco v. Sanchez, 17 this
Court explicitly ruled that the re-election of a public official
extinguishes only the administrative, but not the criminal,
CAUSING UNDUE INJURY UNDER SEC. 3, LETTER (e) liability incurred by him during his previous term of office,
OF RA 3019. MEANING. thus:

Section 3 enumerates in eleven subsections the corrupt The ruling, therefore, that — "when the people have elected
practices of any public officer declared unlawful. Its a man to his office it must be assumed that they did this with
reference to any public officer is without distinction or knowledge of his life and character and that they
qualification and it specifies the acts declared unlawful. We disregarded or forgave his faults or misconduct if he had
agree with the view adopted by the Solicitor General that the been guilty of any" — refers only to an action for removal
last inclusion of officers and employees of offices or from office and does not apply to criminal case, because a
government corporations which, under the ordinary concept crime is a public wrong more atrocious in character than
of “public officer” may not come within the term. It is a mere misfeasance or malfeasance committed by a public
strained construction of the provision to read it as applying officer in the discharge of his duties, and is injurious not only
exclusively to public officers charged with the duty of to a person or group of persons but to the State as a whole.
granting license or permits or other concessions. (Mejorada This must be the reason why Article 89 of the Revised Penal
v Sandiganbayan, 151 SCRA 399). Code, which enumerates the grounds for extinction of
criminal liability, does not include reelection to office as one
of them, at least insofar as a public officer is concerned. court or a criminal prosecution for violation of the Anti-Graft
Also, under the Constitution, it is only the President who may Act or for bribery under a valid information requires at the
grant the pardon of a criminal offense. (Conducto v. Monzon; same time that the hearing be expeditious, and not unduly
A.M. No. MTJ-98-1147, July 2, 1998) protracted such as to thwart the prompt suspension
envisioned by the Act. Hence, if the trial court, say, finds the
ground alleged in the quashal motion not to be indubitable,
PRE-CONDITION OF SUSPENSION (PREVENTIVE) then it shall be called upon to issue the suspension order
UNDER SEC. 13, RA 3019 upon its upholding the validity of the information and setting
the same for trial on the merits.' (Segovia v. Sandiganbayan)
It is mandatory for the court to place under preventive
suspension a public officer accused before it. Imposition of
suspension, however, is not automatic or self-operative. A WHEN MAY A PUBLIC OFFICER BE LIABLE FOR
pre-condition thereof is the existence of a valid information, CAUSING UNDUE INJURY UNDER SEC. 3(e) of RA 3019
determined at a pre-suspension hearing. Such a hearing is
in accord with the spirit of the law, considering the serious xxx xxx xxx
and far-reaching consequences of a suspension of a public
official even before his conviction, and the demands of public (c) Causing any undue injury to any party, including the
interest for a speedy determination of the issues involved in Government, or giving any private party any unwarranted
the case. The purpose of the pre-suspension hearing is benefits, advantage or preference in the discharge of his
basically to determine the validity of the information and official, administrative or judicial functions through manifest
thereby furnish the court with a basis to either suspend the partiality, evident bad faith or gross inexcusable negligence.
accused and proceed with the trial on the merits of the case, This provision shall apply to officers and employees of
or refuse suspension of the latter and dismiss the case, or offices or government corporations charged with the grant of
correct any part of the proceeding which impairs its validity. licenses or permits or other concessions."
The accused should be given adequate opportunity to
challenge the validity or regularity of the criminal To hold a person liable under this section, the concurrence
proceedings against him; e.g. that he has not been afforded of the following elements must be established beyond
the right to due preliminary investigation; that the acts reasonable doubt by the prosecution:
imputed to him do not constitute a specific crime (under R.A.
3019 or the Revised Penal Code) warranting his mandatory "(1) That the accused is a public officer or a private person
suspension from office under Section 13 of the Act; or that charged in conspiracy with the former;
the information is subject to quashal on any of the grounds (2) That said public officer commits the prohibited acts
set out in Rule 117 of the Rules of Court. But once a proper during the performance of his or her official duties or in
determination of the validity of the information has been relation to his or her public positions;
made, it becomes the ministerial duty of the court to forthwith (3) That he or she causes undue injury to any party, whether
issue the order of preventive suspension. The court has no the government or a private party; and
discretion, for instance, to hold in abeyance the suspension (4) That the public officer has acted with manifest partiality,
of the accused official on the pretext that the order denying evident bad faith or gross inexcusable negligence." (Llorente
the latter's motion to quash is pending review before the v. Sandiganbayan; GR 122166, Mar. 11, 1998)
appellate courts. (Segovia v. Sandiganbayan; GR 124067,
Mar. 27, 1998)
MEANING OF BAD FAITH UNDER SECTION 3(e) OF RA
GUIDELINES TO BE FOLLOWED IN PREVENTIVE 3019
SUSPENSION CASES
"Bad faith does not simply connote bad judgment or
"In the leading case of Luciano, et al. vs. Mariano, et al. (L- negligence; it imputes a dishonest purpose or some moral
32950, July 30, 1971, 40 SCRA 187), we have set out the obliquity and conscious doing of a wrong; a breach of sworn
guidelines to be followed by the lower courts in the exercise duty through some motive or intent or ill will; it partakes of
of the power of suspension under Section 13 of the law, to the nature of fraud. (Spiegel v Beacon Participations, 8 NE
wit: 2nd Series 895, 1007). It contemplates a state of mind
affirmatively operating with furtive design or some motive of
(c) By way of broad guidelines for the lower courts in the self interest or ill will for ulterior purposes (Air France v.
exercise of the power of suspension from office of public Carrascoso, 18 SCRA 155, 166-167). Evident bad faith
officers charged under a valid information under the connotes a manifest deliberate intent on the part of the
provisions of Republic Act No. 3019 or under the provisions accused to do wrong or cause damage."
of the Revised Penal Code on bribery, pursuant to section
13 of said Act, it may be briefly stated that upon the filing of In Jacinto, evident bad faith was not appreciated because
such information, the trial court should issue an order with the actions taken by the accused were not entirely without
proper notice requiring the accused officer to show cause at rhyme or reason; he refused to release the complainant's
a specific date of hearing why he should not be ordered salary because the latter failed to submit her daily time
suspended from office pursuant to the cited mandatory record; he refused to approve her sick-leave application
provisions of the Act. Where either the prosecution because he found out that she did not suffer any illness; and
seasonably files a motion for an order of suspension or the he removed her name from the plantilla because she was
accused in turn files a motion to quash the information or moonlighting during office hours. Such actions were
challenges the validity thereof, such show-cause order of the measures taken by a superior against an erring employee
trial court would no longer be necessary. What is who studiously ignored, if not defied, his authority. (Llorente
indispensable is that the trial court duly hear the parties at a v. Sandiganbayan)
hearing held for determining the validity of the information,
and thereafter hand down its ruling, issuing the WHEN OFFENDER IS NOT LIABLE UNDER SEC. 3(e) BUT
corresponding order of suspension should it uphold the UNDER SEC. (f) OF RA 3019
validity of the information or withhold such suspension in the
contrary case. It would appear that petitioner's failure or refusal to act on
the complainant's vouchers, or the delay in his acting on
(d) No specific rules need be laid down for such pre- them more properly falls under Sec. 3[f]:
suspension hearing. Suffice it to state that the accused
should be given a fair and adequate opportunity to challenge "(f) Neglecting or refusing, after due demand or request,
the validity of the criminal proceedings against him, e.g., that without sufficient justification, to act within a reasonable time
he has not been afforded the right of due preliminary on any matter pending before him for the purpose of
investigation, the act for which he stands charged do not obtaining, directly or indirectly, from any person interested in
constitute a violation of the provisions of Republic Act No. the matter some pecuniary or material benefit or advantage,
3019 or of the bribery provisions of the Revised Penal Code or for purpose of favoring his own interest or giving undue
which would warrant his mandatory suspension from office advantage in favor of or discriminating against any other
under Section 13 of the Act, or he may present a motion to interested party."
quash the information on any of the grounds provided in
Rule 117 of the Rules of Court. The mandatory suspension
decreed by the act upon determination of the pendency in
Here, the neglect or refusal to act within a reasonable time is victim. Thus, in People v. Basa, dwelling was appreciated,
the criminal act, not the causing of undue injury. Thus, its although the victims were killed while sleeping as guests in
elements are: the house of another. As aptly stated in People v. Balansit:
"[O]ne does not lose his right of privacy where he is offended
"1) The offender is a public officer; in the house of another because as [an] invited guest [or a
2) Said officer has neglected or has refused to act without housemaid as in the instant case], he, the stranger, is
sufficient justification after due demand or request has been sheltered by the same roof and protected by the same
made on him; intimacy of life it affords. It may not be his house, but it is,
3) Reasonable time has elapsed from such demand or even for a brief moment, "home" to him. He is entitled to
request without the public officer having acted on the matter respect even for that short moment." (People v. Alfeche)
pending before him; and
4) Such failure to so act is 'for the purpose of obtaining,
directly or indirectly, from any person interested in the matter WHEN RELATIONSHIP IS NOT AN ALTERNATIVE
some pecuniary or material benefit or advantage in favor of CIRCUMSTANCE UNDER ART. 15 OF THE RPC
an interested party, or discriminating against another."
Clearly then, the father-daughter relationship in rape cases,
However, petitioner is not charged with a violation of Sec. or between accused and Relanne, in this case, has been
3[f]. Hence, further disquisition is not proper. Neither may treated by Congress in the nature of a special circumstance
this Court convict petitioner under Sec. 3[f] without violating which makes the imposition of the death penalty mandatory.
his constitutional right to due process. (Llorente v. Hence, relationship as an alternative circumstance under
Sandiganbayan) Article 15 of the Revised Penal Code, appreciated as an
aggravating circumstance, should no longer be applied in
SUSPENSION (PREVENTIVE) OF LOCAL OFFICIALS view of the amendments introduced by R.A. No. 7659. It may
SHALL ONLY BE FOR 60 DAYS be pointed, however, that without the foregoing amendment,
relationship would still be an aggravating circumstance in the
On the other hand, we find merit in petitioner's second crimes of rape (Article 335) and acts of lasciviousness
assigned error. The Sandiganbayan erred in imposing a 90 (Article 336). 57
day suspension upon petitioner for the single case filed
against him. Under Section 63 (b) of the Local Government If relationship in the instant case were to be appreciated
Code, "any single preventive suspension of local elective under Article 15 of the Revised Penal Code, the penalty
officials shall not extend beyond sixty (60) days." (Rios v. imposable on accused then would not be death, but merely
Sandiganbayan; GR 129913, Set. 26, 1997) reclusion perpetua for, assuming that Relanne's testimony in
court would have confirmed what she narrated in her sworn
statement (Exhibit "C"), no circumstance then attended the
APPROVAL OF LEAVE OF ABSENCE NOT A BAR TO commission of the rape which could bring the crime under
SUSPENSION any provision of Article 335 which imposes a penalty higher
than reclusion perpetua or of reclusion perpetua to death.
Since the petitioner is an incumbent public official charged in (People v. Manyuhod, Jr.)
a valid information with an offense punishable under the
Constitution and the laws (RA 3019 and PD 807), the law's
command that he "shall be suspended from office" pendente WHEN OFFENDER IS STEP GRANDPARENT, HE IS NOT
lite must be obeyed. His approved leave of absence is not a CONSIDERED AN ASCENDANT UNDER RA 8353 AND RA
bar to his preventive suspension for as indicated by the 7659
Solicitor General, an approved leave, whether it be for a
fixed or indefinite period, may be cancelled or shortened at The trial court has thus held incorrectly in considering
will by the incumbent. (Doromal v. Sandiganbayan; GR appellant, who is legally married to Roxan's natural
85468, Sepr. 7, 1989) grandmother, as among those named in the enumeration.
Appellant is merely a step-grandparent who obviously is
neither an "ascendant" nor a "step-parent" of the victim. In
UNDUE DELAY IN PRELIMINARY INVESTIGATIONS the recent case of People vs. Atop, 24 the Court rejected the
VIOLATIVE OF DUE PROCESS AND A GROUND TO application of the mandatory death penalty to the rape of a
DISMISS 12-year old victim by the common-law husband of the girl's
grandmother. The Court said:
After a careful review of the facts and circumstances of this
case, we are constrained to hold that the inordinate delay in "It is a basic rule of statutory construction that penal statutes
terminating the preliminary investigation and filing the are to be liberally construed in favor of the accused. Court's
information in the instant case is violative of the must not bring cases within the provision of a law which are
constitutionally guaranteed right of the petitioner to due not clearly embraced by it. No act can be pronounced
process and to a speedy disposition of the cases against criminal which is not clearly made so by statute; so, too, no
him. Accordingly, the informations in Criminal Cases Nos. person who is not clearly within the terms of a statute can be
10499, 10500, 10501, 10502 and 10503 should be brought within them. Any reasonable doubt must be resolved
dismissed. In view of the foregoing, we find it unnecessary to in favor of the accused."
rule on the other issues raised by petitioner. (Tatad v. (People v. Deleverio)
Sandiganbayan)

RECLUSION PERPETUA IS LIGHTER THAN LIFE

IMPRISONMENT AND IF ONE IS SENTENCED TO LIFE
IMPRISONMENT AND LATER IMPOSED RECLUSION
DEATH PENALTY LAW PERPETUA TO SAME OFFENSE, THE PENALTY THAT
(RA 7659) SHOULD BE IMPOSED IS RECLUSION PERPETUA

Since reclusion perpetua is a lighter penalty than life

PROSTITUTES CAN BE A VICTIM OF RAPE imprisonment, and considering the rule that criminal statutes
with a favorable effect upon the accused have, as to him, a
As to the suggestion that ANALIZA was a prostitute, that retroactive effect, the penalty imposable upon the accused
alone, even if it be conceded, cannot absolve him of his should be reclusion perpetua and not life imprisonment.
liability for rape. First, prostitutes can be victims of rape. (People v. Latura)
(People v. Alfeche)

JUSTIFICATION FOR THE IMPOSITION OF THE DEATH

REASON WHY DWELLING IS AN AGGRAVATING PENALTY
CIRCUMSTANCE
Although its origins seem lost in obscurity, the imposition of
Dwelling is considered an aggravating circumstance death as punishment for violation of law or custom, religious
because primarily of the sanctity of privacy the law accords or secular, is an ancient practice. We do know that our
to human abode. The dwelling need not be owned by the forefathers killed to avenge themselves and their kin and that
initially, the criminal law was used to compensate for a (2) Qualified piracy (Sec. 3);
wrong done to a private party or his family, not to punish in (3) Parricide (Sec. 5);
the name of the state. (4) Murder (Sec. 6);
(5) Infanticide (Sec. 7);
The dawning of civilization brought with it both the increasing (6) Kidnapping and serious illegal detention if attended by
sensitization throughout the later generations against past any of the following four circumstances: (a) the victim was
barbarity and the institutionalization of state power under the detained for more than three days; (b) it was committed
rule of law. Today every man or woman is both an individual simulating public authority; (c) serious physical injuries were
person with inherent human rights recognized and protected inflicted on the victim or threats to kill him were made; and
by the state and a citizen with the duty to serve the common (d) if the victim is a minor, except when the accused is any of
weal and defend and preserve society. the parents, female or a public officer (Sec. 8);
(7) Robbery with homicide, rape or intentional mutilation
One of the indispensable powers of the state is the power to (Sec. 9);
secure society against threatened and actual evil. Pursuant (8) Destructive arson if what is burned is (a) one or more
to this, the legislative arm of government enacts criminal buildings or edifice; (b) a building where people usually
laws that define and punish illegal acts that may be gather; (c) a train, ship or airplane for public use; (d) a
committed by its own subjects, the executive agencies building or factory in the service of public utilities; (e) a
enforce these laws, and the judiciary tries and sentences the building for the purpose of concealing or destroying evidence
criminals in accordance with these laws. Or a crime; (f) an arsenal, fireworks factory, or government
museum; and (g) a storehouse or factory of explosive
Although penologists, throughout history, have not stopped materials located in an inhabited place; or regardless of what
debating on the causes of criminal behavior and the is burned, if the arson is perpetrated by two or more persons
purposes of criminal punishment, our criminal laws have (Sec. 10);
been perceived as relatively stable and functional since the (9) Rape attended by any of the following circumstances: (a)
enforcement of the Revised Penal Code on January 1, 1932, the rape is committed with a deadly weapon; (b) the rape is
this notwithstanding occasional opposition to the death committed by two or more persons; and (c) the rape is
penalty provisions therein. The Revised Penal Code, as it attempted or frustrated and committed with homicide (Sec.
was originally promulgated, provided for the death penalty in 11);
specified crimes under specific circumstances. As early as (10) Plunder involving at least P50 million (Sec. 12);
1886, though, capital punishment had entered our legal (11) Importation of prohibited drugs
system through the old Penal Code, which was a modified (Sec. 13);
version of the Spanish Penal Code of 1870. (People v. (12) Sale, administration, delivery, distribution, and
Echegaray) transportation of prohibited drugs (id.);
(13) Maintenance of den, dive or resort for users of
prohibited drugs (id.);
WHY DEATH PENALTY IS NOT A CRUEL AND UNUSUAL (14) Manufacture of prohibited drugs (id.);
PUNISHMENT (15) Possession or use of prohibited drugs in certain
specified amounts (id.);
"The penalty complained of is neither cruel, unjust nor (16) Cultivation of plants which are sources of prohibited
excessive. In Ex-parte Kemmler, 136 U.S., 436, the United drugs (id.)
States Supreme Court said that 'punishments are cruel when (17) Importation of regulated drugs
they involve torture or a lingering death, but the punishment (Sec. 14);
of death is not cruel, within the meaning of that word as used (18) Manufacture of regulated drugs (id.);
in the constitution. It implies there something inhuman and (19) Sale, administration, dispensation, delivery,
barbarous, something more than the mere extinguishment of transportation, and distribution of regulated drugs (id.);
life.'" (20) Maintenance of den, dive, or resort for users of
regulated drugs (Sec. 15);
“as long as that penalty remains in the statute books, and as (21) Possession or use of regulated drugs in specified
long as our criminal law provides for its imposition in certain amounts (Sec. 16);
cases, it is the duty of judicial officers to respect and apply (22) Misappropriation, misapplication or failure to account
the law regardless of their private opinions," and this we dangerous drugs confiscated by the arresting officer (Sec.
have reiterated in the 1995 case of People v. Veneracion. 17);
(People v. Echegaray) (23) Planting evidence of dangerous drugs in person or
immediate vicinity of another to implicate the latter (Sec. 19);
and
DEATH PENALTY WAS NOT ABOLISHED BUT MERELY (24) Carnapping where the owner, driver or occupant of the
SUSPENDED carnapped motor vehicle is killed or raped (Sec. 20).
(People v. Echegaray)
A reading of Section 19 (1) of Article III will readily show that
there is really nothing therein which expressly declares the
abolition of the death penalty. The provision merely says that WHAT ARE THE MANDATORY CRIMES PUNISHABLE BY
the death penalty shall not be imposed unless for compelling MANDATORY DEATH PENALTY UNDER RA 7659
reasons involving heinous crimes the Congress hereafter
provides for it and, if already imposed, shall be reduced to On the other hand, under R.A. No. 7659, the mandatory
reclusion perpetua. The language, while rather awkward, is penalty of death is imposed in the following crimes:
still plain enough". (People v. Echegaray)
(1) Qualified bribery

DEFINITION OF HEINOUS CRIMES "If any public officer is entrusted with law enforcement and
he refrains from arresting or prosecuting an offender who
". . . the crimes punishable by death under this Act are has committed a crime punishable by reclusion perpetua
heinous for being grievous, odious and hateful offenses and and/or death in consideration of any offer, promise, gift or
which, by reason of their inherent or manifest wickedness, present, he shall suffer the penalty for the offense which was
viciousness, atrocity and perversity are repugnant and not prosecuted.
outrageous to the common standards and norms of decency If it is the public officer who asks or demands such gift or
and morality in a just, civilized and ordered society." (People present, he shall suffer the penalty of death." (Sec. 4)
v. Echegaray)
(2) Kidnapping and serious illegal detention for ransom
resulting in the death of the victim or the victim is raped,
WHAT ARE THE CRIMES PUNISHABLE BY RECLUSION tortured or subjected to dehumanizing acts
PERPETUA TO DEATH UNDER RA 7659
"The penalty shall be death where the kidnapping or
Under R.A. No. 7659, the following crimes are penalized by detention was committed for the purpose of ransom from the
reclusion perpetua to death: victim or any other person, even if none of the circumstances
above-mentioned were present in the commission of the
(1) Treason (Sec. 2); offense.
When the victim is killed or dies as a consequence of the "Notwithstanding the provisions of Section 20 of this Act to
detention or is raped, or is subject to torture or dehumanizing the contrary, the maximum penalty [of death] herein provided
acts, the maximum penalty [of death] shall be imposed." shall be imposed in every case where a regulated drug is
(Sec. 8) administered, delivered or sold to a minor who is allowed to
use the same in such place.
(3) Destructive arson resulting in death Should a regulated drug be the proximate cause of death of
a person using the same in such den, dive or resort, the
"If as a consequence of the commission of any of the acts maximum penalty herein provided shall be imposed on the
penalized under this Article, death results, the mandatory maintainer notwithstanding the provisions of Section 20 of
penalty of death shall be imposed." (Sec. 10) this Act to the contrary." (Sec. 15)

(4) Rape with the victim becoming insane, rape with (9) Drug offenses if convicted are government officials,
homicide and qualified employees or officers including members of police agencies
and armed forces
"When by reason or on the occasion of the rape, the victim
has become insane, the penalty shall be death. "The maximum penalties [of death] provided for in Section 3,
4 (1), 5(1), 6, 7, 8, 9, 11,12 and 13 of Article II and Sections
xxx xxx xxx 14, 14-A, 14(1), 15A (1), 16, and 19 of Article III [of the
Dangerous Drugs Act of 1972] shall be imposed, if those
When by reason or on the occasion of the rape, a homicide found guilty or any of the same offenses are government
is committed, the penalty shall be death. officials, employees or officers including members of police
agencies and the armed forces." (Sec. 19)
The death penalty shall also be imposed if the crime of rape
is committed with any of the following attendant (10) Planting of dangerous drugs as evidence in drug
circumstances: offenses with the mandatory death penalty if convicted are
government officials, employees or officers
1. when the victim is under eighteen (18) years of age and "Any such above government official, employee or officer
the offender is a parent, ascendant, step-parent, guardian, who is found guilty of 'planting' any dangerous drugs
relative by consanguinity or affinity within the third civil punished in Section s 3, 4, 7, 8, 9 and 13 of Article II and
degree, or the common-law spouse of the parent or the Sections 14, 14-A, 15, and 16 of Article III (of the Dangerous
victim. Drugs Act of 1972) in the person or in the immediate vicinity
2. when the victim is under the custody of the police or of another as evidence to implicate the latter, shall suffer the
military authorities. same penalty as therein provided." (Sec. 19)
3. when the rape is committed in full view of the husband,
parent, any of the children or other relatives within the third (11) In all the crimes in RA. No. 7659 in their qualified form
degree of consanguinity.
4. when the victim is a religious or a child below seven (7) "When in the commission of the crime, advantage was taken
years old by the offender of his public position, the penalty to be
5. when the offender knows that he is afflicted with Acquired imposed shall be in its maximum [of death] regardless of
Immune Deficiency Syndrome (AIDS) disease. mitigating circumstances.
6. when committed by any member of the Armed Forces of
the Philippines or the Philippine National Police or any law The maximum penalty [of death] shall be imposed if the
enforcement agency. offense was committed by any person who belongs to an
7. when by reason or on the occasion of the rape, the victim organized/syndicated crime group.
has suffered permanent physical mutilation." (Sec. 11 )
An organized/syndicated crime group means a group of two
(5) Sale, administration, delivery, distribution and or more persons collaborating, confederating or mutually
transportation of prohibited drugs where the victim is a minor helping one another for purposes of gain in the commission
or the victim dies of any crime." (Sec. 23)
(People v. Echegaray)
"Notwithstanding the provision of Section 20 of this Act to the
contrary, if the victim of the offense is a minor, or should a
prohibited drug involved in any offense under this Section be TWO INSTANCES WHEN DEATH MAY BE IMPOSED
the proximate cause of the death of victim thereof, the WHEN CONSTRUED UNDER RA 7659
maximum penalty [of death] herein provided shall be
imposed." (Sec. 13) Thus, construing R.A. No. 7659 in pari materia with the
Revised Penal Code, death may be imposed when (1)
(6) Maintenance of den, dive, or resort for users of prohibited aggravating circumstances attend the commission of the
drugs where the victim is a minor or the victim dies crime as to make operative the provision of the Revised
Penal Code regarding the imposition of the maximum
"Notwithstanding the provisions of Section 20 of this Act to penalty; and (2) other circumstances attend the commission
the contrary, the maximum of the penalty [of death] shall be of the crime which indubitably characterize the same as
imposed in every case where a prohibited drug is heinous in contemplation of R.A. No. 7659 that justify the
administered, delivered or sold to a minor who is allowed to imposition of the death, albeit the imposable penalty is
use the same in such place. reclusion perpetua to death. (People v. Echegaray)
Should a prohibited drug be the proximate case of the death
of a person using the same in such den, dive or resort, the
maximum penalty herein provided shall be imposed on the WHY DEATH PENALTY IS IMPOSED ON HEINOUS
maintainer notwithstanding the provisions of Section 20 of CRIMES
this Act to the contrary." (Sec. 13)
The death penalty is imposed in heinous crimes because the
(7) Sale, administration, dispensation, delivery, distribution perpetrators thereof have committed unforgivably execrable
and transportation of regulated drugs where the victim is a acts that have so deeply dehumanized a person or criminal
minor or the victim dies acts with severely destructive effects on the national efforts
to lift the masses from abject poverty through organized
"Notwithstanding the provisions of Section 20 of this Act to governmental strategies based on a disciplined and honest
the contrary, if the victim of the offense is a minor, or should citizenry, and because they have so caused irreparable and
a regulated drug involved in any offense under this Section substantial injury to both their victim and the society and a
be the proximate cause of the death of a victim thereof, the repetition of their acts would pose actual threat to the safety
maximum penalty [of death] herein provided shall be of individuals and the survival of government, they must be
imposed." (Sec. 14) permanently prevented from doing so. At any rate, this court
has no doubts as to the innate heinousness of the crime of
(8) Maintenance of den, dive, or resort for users of regulated rape, as we have held in the case of People v. Cristobal.
drugs where the victim is a minor or the victim dies (People v. Echegaray)
WHY RAPE IS A HEINOUS CRIME While the number of persons killed does not alter the
characterization of the offense as robbery with homicide, the
"Rape is the forcible violation of the sexual intimacy of multiplicity of the victims slain should have been appreciated
another person. It does injury to justice and charity. Rape as an aggravating circumstance. This would preclude an
deeply wounds the respect, freedom, and physical and moral anomalous situation where, from the standpoint of the
integrity to which every person has a right. It causes grave gravity of the offense, robbery with one killing would be
damage that can mark the victim for life. It is always an treated in the same way that robbery with multiple killings
intrinsically evil act . . . an outrage upon decency and dignity would be. (People V. Timple)
that hurts not only the victim but the society itself." (People v.
Echegaray)
ROBBERY WITH HOMICIDE AND ROBBERY WITH RAPE;
PROVISION OF ARTICLE 294 OF THE REVISED PENAL
WHY CAPITAL PUNISHMENT SHOULD NOT BE CODE AS AMENDED BY REPUBLIC ACT 7659 CANNOT
ABOLISHED BE APPLIED RETROACTIVELY; CASE AT BAR.

"Capital punishment ought not to be abolished solely

because it is substantially repulsive, if infinitely less repulsive Under Article 294 (1) of the Revised Penal Code, robbery
than the acts which invoke it. Yet the mounting zeal for its with homicide is punishable by reclusion perpetua to death.
abolition seems to arise from a sentimentalized In view, however, of the first paragraph of Section 19, Article
hyperfastidiousness that seeks to expunge from the society III of the 1987 Constitution, which provides that: "Sec. 19. (1)
all that appears harsh and suppressive. If we are to preserve Excessive fines shall not be imposed, nor cruel, degrading or
the humane society we will have to retain sufficient strength inhuman punishment inflicted. Neither shall death penalty be
of character and will to do the unpleasant in order that imposed, unless, for compelling reasons involving heinous
tranquillity and civility may rule comprehensively. It seems crimes, the Congress hereafter provides for it. Any death
very likely that capital punishment is a . . . necessary, if penalty already imposed shall be reduced to reclusion
limited factor in that maintenance of social tranquillity and perpetua" (Emphasis supplied) only the penalty of reclusion
ought to be retained on this ground. To do otherwise is to perpetua could be imposed by the trial court. Hence, the
indulge in the luxury of permitting a sense of false delicacy to attended aggravating circumstances in this case had no
reign over the necessity of social survival." (People v. impact upon the determination of the proper penalty by the
Echegaray) trial court. By Republic Act No. 7659 (effective 31 December
1993), Congress re-imposed the death penalty for certain
heinous crimes, including robbery with homicide and robbery
RA 6425 AS AMENDED BY RA 7659 WHEN PENALTY IN with rape. By the same statute, Article 294 of the Revised
NEW LAW NOT FAVORABLE TO ACCUSED IT SHOULD Penal Code was amended to read as follows: "Any person
BE RETAINED guilty of robbery with the use of violence against or
intimidation on any person shall suffer: 1. The penalty of
Appellant in this case was convicted and meted the penalty reclusion perpetua to death, when by reason or on occasion
of life imprisonment and fine of twenty thousand pesos under of the robbery, the crime of homicide shall have been
RA 6425 for transporting more or less 6 kilos of marijuana on committed, or when the robbery shall have been
July 1990. RA 7659, which took effect on December 31/93, accompanied by rape or intentional mutilation or arson. . . .
amended the provisions of RA 6425, increasing the (Emphasis supplied) Article 294 of the Revised Penal Code,
imposable penalty for the sale or transport of 750 grams or as amended by R.A. No. 7659, however, cannot be applied
more of marijuana to reclusion perpetua to death and a fine retroactively in this case. To do so would be to subject the
ranging from five hundred thousand pesos to ten million appellant to the death penalty which could not have been
pesos. Such penalty is not favorable to the appellant as it constitutionally imposed by the court a quo under the law in
carries the accessory penalties provided under the RPC and effect at the time of the commission of the offenses. (People
has a higher amount of fine which in accordance with ART v. Timple)
22 of the same code should not be given retroactive effect.
The court, therefore, finds and so holds that the penalty of
life imprisonment and fine in the amount of twenty thousand A PERSON MAY BE CONVICTED OF GRAVE COERCION
pesos correctly imposed by the trial court should be retained. ALTHOUGH THE CHARGE IS KIDNAPPING
(PP v Carreon, 12/9/97)
The Information, dated March 24, 1992, filed against Astorga
COURTS SHOULD NOT BE CONCERNED ABOUT contains sufficient allegations constituting grave coercion,
WISDOM, EFFICACY OR MORALITY OF LAWS the elements of which were sufficiently proved by the
prosecution. Hence, a conviction for said crime is
It is a well settled rule that the courts are not concerned with appropriate under Section 4, Rule 120 of the 1988 Rules on
the wisdom, efficacy or morality of laws. That question falls Criminal Procedure.
exclusively within the province of the Legislature which (People -vs- Astorga)
enacts them and the Chief Executive who approves or
vetoes them. The only function of the judiciary is to interpret ELEMENTS OF GRAVE COERCION
the laws and, if not in disharmony with the Constitution, to
apply them. And for the guidance of the members of the Grave Coercion or coaccion grave has three elements:
judiciary we feel it incumbent upon us to state that while they
as citizens or as judges may regard a certain law as harsh, a. That any person is prevented by another from doing
unwise or morally wrong, and may recommend to the something not prohibited by law, or compelled to do
authority or department concerned, its amendment, something against his or her will, be it right or wrong;
modification, or repeal, still, as long as said law is in force,
they must apply it and give it effect as decreed by the law- b. That the prevention or compulsion is effected by violence,
making body. (People v. Veneracion) either by material force or such a display of it as would
produce intimidation and, consequently, control over the will
REASON FOR DURATION OF RECLUSION PERPETUA of the offended party; and
OF 30 OR 40 YEARS
c. that the person who restrains the will and liberty of another
The imputed duration of thirty (30) years for reclusion has no right to do so or, in other words, that the restraint is
perpetua, therefore, is only to serve as the basis for not made under authority of a law or in the exercise of any
determining the convict's eligibility for pardon or for the lawful right.
application of the three-fold rule in the service of multiple (People -vs- Astorga)
penalties. (People v. Lucas)
ACTUAL DETENTION OR LOCKING UP, AN ESSENTIAL
ROBBERY WITH HOMICIDE, NUMBER OF PERSONS ELEMENT OF KIDNAPPING
KILLED DOES NOT ALTER CHARACTERIZATION OF THE
OFFENSE BUT CAN BE APPRECIATED AS Actual detention or "locking up" is the primary element of
AGGRAVATING CIRCUMSTANCE. kidnapping. If the evidence does not adequately prove this
element, the accused cannot be held liable for kidnapping. In
the present case, the prosecution merely proved that
appellant forcibly dragged the victim toward a place only he Mendoza, Accused. RICARDO DELA CRUZ alias Pawid,
knew. There being no actual detention or confinement, the Accused-Appellant. G.R. No. 125936 Feb. 23, 2000 )
appellant may be convicted only of grave coercion.
PERIOD WHEN BAIL IS EFFECTIVE AFTER CONVICTION
(People -vs- Astorga; GGR 110097, December 22, 1997) IN LOWER COURTS

The bail bond that the accused previously posted can only
be used during the 15-day period to appeal (Rule 122) and
DANGEROUS DRUGS ACT OF 1972 (R.A. NO. 6425); not during the entire period of appeal. This is consistent with
SECTIONS 15 AND 20 THEREOF AS AMENDED BY R.A. Section 2(a) of Rule 114 which provides that the bail "shall
NO. 7659. be effective upon approval and remain in force at all stages
of the case, unless sooner cancelled, until the promulgation
In People vs. Martin Simon y Sunga, (G.R. No. 93028), of the judgment of the Regional Trial Court, irrespective of
decided on 29 July 1994, this Court ruled as follows: (1) whether the case was originally filed in or appealed to it."
Provisions of R.A. No. 7659 which are favorable to the This amendment, introduced by SC Administrative Circular
accused shall be given retroactive effect pursuant to Article 12-94 is a departure from the old rules which then provided
22 of the Revised Penal Code. (2) Where the quantity of the that bail shall be effective and remain in force at all stages of
dangerous drug involved is less than the quantities stated in the case until its full determination, and thus even during the
the first paragraph of Section 20 of R.A. No. 6425, the period of appeal.
penalty to be imposed shall range from prision correccional
to reclusion temporal, and not reclusion perpetua. The Moreover, under the present rule, for the accused to
reason is that there is an overlapping error, probably through continue his provisional liberty on the same bail bond during
oversight in the drafting, in the provisions on the penalty of the period to appeal, consent of the bondsman is necessary.
reclusion perpetua as shown by its dual imposition, i.e., as From the record, it appears that the bondsman, AFISCO
the minimum of the penalty where the quantity of the Insurance Corporation, filed a motion in the trial court on
dangerous drugs involved is more than those specified in the January 06, 1987 for the cancellation of petitioners' bail bond
first paragraph of the amended Section 20 and also as the for the latter's failure to renew the same upon its expiration.
maximum of the penalty where the quantity of the dangerous Obtaining the consent of the bondsman was, thus,
drugs involved is less than those so specified in the first foreclosed. ( Aniceto Sabbun Maguddatu and Laureana
paragraph. (3) Considering that the aforesaid penalty of Sabbun Maguddatu, Petitioners, -vs- Honorable COURT OF
prision correccional to reclusion temporal shall depend upon APPEALS (Fourth Division and People of the Philippines,
the quantity of the dangerous drugs involved, each of the Respondents. G.R. No. 139599, Feb. 23, 2000)
component penalties thereof — prision correccional, prision
mayor, and reclusion temporal — shall be considered as a WHEN ABUSE OF SUPERIOR STRENGTH IS PRESENT.
principal imposable penalty depending on the quantity, such
that the quantity of the drugs enumerated in the second We find, however, that the aggravating circumstance of
paragraph should then be divided into three, with the abuse of superior strength attended the killing. "To
resulting quotient, and double or treble the same, as the appreciate abuse of superior strength as an aggravating
bases for determining the appropriate component penalty. circumstance, what should be considered is not that there
(4) The modifying circumstances in the Revised Penal Code were three, four or more assailants of one victim, but
may be appreciated to determine the proper period of the whether the aggressors took advantage of their combined
corresponding imposable penalty or even to effect its strength in order to consummate the offense. It is therefore
reduction by one or more degrees; provided, however, that necessary to show that the attackers cooperated in such a
in no case should such graduation of penalties reduce the way as to secure advantage of their superiority in strength."
imposable penalty lower than prision correccional. (5) In
appropriate instances, the Indeterminate Sentence Law shall In this case, appellants and their companions purposely
be applied and considering that R.A. No. 7659 has gathered together and armed themselves to take advantage
unqualifiedly adopted the penalties under the Revised Penal of their combined strength to ensure that Reynaldo Danao
Code with their technical signification and effects, then the would be able to kill the victim without any interference from
crimes under the Dangerous Drugs Act shall now be other bystanders.
considered as crimes punished by the Revised Penal Code;
hence, pursuant to Section 1 of the Indeterminate Sentence However, not having been alleged in the Information, abuse
Law, the indeterminate penalty which may be imposed shall of superior strength can only be considered as a generic
be one whose maximum shall be within the range of the aggravating circumstance. (PP -vs- CIELITO BULURAN Y
imposable penalty and whose minimum shall be within the RAMIREZ and LEONARDO VALENZUELA Y CASTILLO,
range of the penalty next lower in degree to the imposable Accused-Appellants. G.R. No. 113940, Feb. 15, 2000)
penalty. With the foregoing as our touchstones, and it
appearing that the quantity of the shabu recovered from the
accused in this case is only 0.0958 gram, the imposable USE OF MOTOR VEHICLE AS QUALIFYING
penalty under the second paragraph of Section 20 of R.A. AGGRAVATING CIRCUMSTANCE
No. 6425, as further amended by Section 17 of R.A. No.
7659, should be prision correccional. Applying the The use of a motor vehicle qualifies the killing to murder if
Indeterminate Sentence Law, the accused may then be the same was perpetrated by means thereof. (PP -vs-
sentenced to suffer an indeterminate penalty ranging from THADEOS ENGUITO Defendant-Appellant. G.R. 128812,
six (6) months of arresto mayor as minimum to six (6) years Feb. 28, 2000)
of prision correccional as maximum.

WHEN THEFT OF MOTOR VEHICLE IS QUALIFIED ELEMENTS OF EVIDENT PREMEDITATION

THEFT. (STRAY DECISION)
(1) The time when the offender determined to commit the
In this case, the stolen property is a Yamaha RS motorcycle crime; (2) an act manifestly indicating that the offender had
bearing plate no. CZ-2932 with sidecar valued at clung to his determination; and (3) sufficient lapse of time
P30,000.00. Since this value remains undisputed, we accept between the determination and the execution to allow the
this amount for the purpose of determining the imposable offender to reflect on the consequences of his act. (PP -vs-
penalty. In simple theft, such amount carries the ROGELIO GALAM, Accused-Appellant. G.R. No. 114740,
corresponding penalty of prision mayor in its minimum and Feb. 15, 2000)
medium periods to be imposed in the maximum period.
Considering that the penalty for qualified theft is two degrees
higher than that provided for simple theft, the penalty of WHEN NIGHTTIME IS AGGRAVATING
prision mayor in its minimum and medium periods must be
raised by two degrees. Thus, the penalty prescribed for the Nighttime as an aggravating circumstance must have
offense committed of qualified theft of motor vehicle is specially been sought to consummate the crime, facilitate its
reclusion temporal in its medium and maximum periods to be success or prevent recognition of the felon. (PP -vs-
imposed in its maximum period. (PP -vs- Ricardo Dela Cruz CONSTANCIO MERINO and ARNULFO SIERVO, Accused-
alias Pawid, Manuel dela Cruz alias Pawid, Danilo Dela Cruz Appellants. G.R. No. 132329, Dec. 17, 1999)
and John Doe alias Henry Balintawak and Orlando Padilla y
 ILLEGAL POSSESSION OF FIREARMS
TREACHERY IS PRESENT ON SECOND STAGE OF (REPUBLIC ACT NO. 8294)
ACCIDENT

There is treachery when the offender commits any of the SECTION 1. Section 1 Presidential Decree No. 1866, as
crimes against the person employing means, methods or amended, is hereby further amended to read as follows:
forms in the execution thereof which tend directly and
specifically to insure its execution without risk to himself "SECTION 1. Unlawful Manufacture, Sale, Acquisition,
arising form the defense which the offended party might Disposition or Possession of Firearms or Ammunition or
make. As earlier mentioned, the deceased was already Instruments Used or Intended to be Used in the Manufacture
rendered completely helpless and defenseless when he was of Firearms or Ammunition. — The penalty of prision
stabbed by Pedro Lumacang. Although he was able to run a correccional in its maximum period and a fine of not less
short distance, he had absolutely no means of defending than Fifteen thousand pesos (P15,000) shall be imposed
himself from the three brothers who were armed with hunting upon any person who shall unlawfully manufacture, deal in,
knives, bent on finishing him off. The wounded victim had acquire, dispose, or possess any low powered firearm, such
not even so much as a stick or a stone to parry off their as rimfire handgun, .380 or .32 and other firearm of similar
blows. It should be noted, however, at this point that firepower, part of firearm, ammunition, or machinery, tool or
inasmuch as treachery has been appreciated as a qualifying instrument used or intended to be used in the manufacture
circumstance, abuse of superior strength should not have of any firearm or ammunition: Provided, That no other crime
been considered separately inasmuch as it is absorbed in was committed.
treachery. (PP -vs- PEDRO LUMACANG, PABLO
LUMACANG and DOMINGO LUMACANG, Accused- "The penalty of prision mayor in its minimum period and a
Appellants. G.R. No. 120283, Feb. 1, 2000) fine of Thirty thousand pesos (P30,000) shall be imposed if
the firearm is classified as high powered firearm which
includes those with bores bigger in diameter than .38 caliber
WHY DWELLING IS AGGRAVATING and 9 millimeter such as caliber .40, .41, .44, .45 and also
lesser calibered firearms but considered powerful such as
"The home is a sort of sacred place for its owner. He who caliber .357 and caliber .22 center-fire magnum and other
goes to another's house to slander him, hurt him or do him firearms with firing capability of full automatic and by burst of
wrong, is more guilty than he who offends him elsewhere." two or three: Provided, however, That no other crime was
(PP -vs- JOSE & NESTOR BiñAS, Accused-Appellant. G.R. committed by the person arrested.
No. 121630, Dec. 8, 1999)
"If homicide or murder is committed with the use of an
unlicensed firearm, such use of an unlicensed firearm shall
EVEN FRONTAL ATTACK WOULD AMOUNT TO be considered as an aggravating circumstance.
TREACHERY
"If the violation of this Section is in furtherance of or incident
Moreover, Milyn Ruales also testified that the knife used by to, or in connection with the crime of rebellion or insurrection,
accused was hidden from view. Thus, Isabel Ruales was not sedition, or attempted coup d'etat, such violation shall be
prepared for such a violent attack, especially considering absorbed as an element of the crime of rebellion, or
that, at the time, she was unarmed and was burdened with a insurrection, sedition, or attempted coup d'etat.
large basket filled with about six kilos of corn and dried fish
hanging from her shoulders and thus, could not have "The same penalty shall be imposed upon the owner,
possibly warded off the blow or run away from her assailant. president, manager, director or other responsible officer of
Although Milyn Ruales described the attack having been any public or private firm, company, corporation or entity,
frontal, this does not negate treachery since the essence of who shall willfully or knowingly allow any of the firearms
treachery is the suddenness and unexpectedness of the owned by such firm, company, corporation or entity to be
attack, giving the victim no opportunity to repel it or offer any used by any person or persons found guilty of violating the
defense of his person. Thus, we hold that the trial court provisions of the preceding paragraphs or willfully or
correctly appreciated the qualifying circumstance of knowingly allow any of them to use unlicensed firearms or
treachery. (PP -vs- CORNELIA SUELTO alias "ELY" alias firearms without any legal authority to be carried outside of
"ROGELIA SUELTO", G.R. No. 126097, Feb. 8, 2000) their residence in the course of their employment.

DATE OF EFFECTIVITY OF RA 7659, ETC. "The penalty of arresto mayor shall be imposed upon any
Republic Act No. 7659 took effect on 31 December 1993. person who shall carry any licensed firearm outside his
Accordingly, the said law only applies to crimes defined residence without legal authority therefor."
therein, including rape, which were committed after its
effectivity. It cannot be applied retroactively because, to do
so, would go against the constitutional prohibition on ex post SECTION 2. Section 3 of Presidential Decree No. 1866, as
facto laws. For this reason, in order for the death penalty to amended, is hereby further amended to read as follows:
be imposable, it is incumbent upon the prosecution to
establish beyond a shadow of doubt that the case of the "SECTION 3. Unlawful Manufacture, Sale, Acquisition,
accused is already covered by Republic Act No. 7659. Disposition or Possession of Explosives. — The penalty of
AN EX POST FACTO LAW HAS BEEN DEFINED AS ONE prision mayor in its maximum period to reclusion temporal
WHICH and a fine of not less than Fifty thousand pesos (P50,000)
(a) makes criminal an act before the passage of the law and shall be imposed upon any person who shall unlawfully
which was innocent when done, and punishes such an act; manufacture, assemble, deal in, acquire, dispose or possess
(b) aggravate a crime, or makes it greater than it was, when hand grenade(s), rifle grenade(s), and other explosives,
committed; including but not limited to 'pillbox,' 'molotov cocktail bombs,'
(c) changes the punishment and inflicts a greater 'fire bombs,' or other incendiary devices capable of
punishment than the law annexed to the crime when producing destructive effect on contiguous objects or
committed; causing injury or death to any person.
(d) alters the legal rules of evidence, and authorizes
conviction upon less or different testimony than the law "When a person commits any of the crimes defined in the
required at the time of the commission of the offense; Revised Penal Code or special laws with the use of the
(e) assuming to regulate civil rights and remedies only, in aforementioned explosives, detonation agents or incendiary
effect imposes penalty or deprivation of a right for something devices, which results in the death of any person or persons,
which when done was lawful; and the use of such explosives, detonation agents or incendiary
(f) deprives person accused of a crime of some lawful devices shall be considered as an aggravating circumstance.
protection to which he has become entitled, such as the
protection of a former conviction or acquittal, or a "If the violation of this Section is in furtherance of, or incident
proclamation of amnesty. (PP -vs- CHARITO ISUG to, or in connection with the crime of rebellion, insurrection,
MAGBANUA, G.R. No. 128888, Dec. 3, 1999) sedition or attempted coup d'etat, such violation shall be
absorbed as an element of the crimes of rebellion,
insurrection, sedition or attempted coup d'etat.
"The same penalty shall be imposed upon the owner,
president, manager, director or other responsible officer of We stress that the essence of the crime penalized under
any public or private firm, company, corporation or entity, P.D. 1866 is primarily the accused's lack of license or permit
who shall willfully or knowingly allow any of the explosives to carry or possess the firearm, ammunition or explosive as
owned by such firm, company, corporation or entity, to be possession by itself is not prohibited by law. (People v.
used by any person or persons found guilty of violating the Cortez, 324 scra 335, 344)
provisions of the preceding paragraphs."
Illegal possession of firearm is a crime punished by special
law, a malum prohibitum, and no malice or intent to commit a
SECTION 3. Section 5 of Presidential Decree No. 1866, as crime need be proved. (People v. Lubo, 101 Phil. 179) To
amended, is hereby further amended to read as follows: support a conviction, however, there must be possession
coupled with intent to possess (animus possidendi) the
"SECTION 5. Tampering of Firearm's Serial Number. — The firearm. (Supra)
penalty of prision correccional shall be imposed upon any
person who shall unlawfully tamper, change, deface or erase
the serial number of any firearm." PRESENT MEANING OF ILLEGAL
POSSESSION OF FIREARM

SECTION 4. Section 6 of Presidential Decree No. 1866, as Unlicensed firearm no longer simply means a firearm without
amended, is hereby further amended to read as follows: a license duly issued by lawful authority. The scope of the
term has been expanded in Sec.5 of R.A. 8294.
"SECTION 6. Repacking or Altering the Composition of
Lawfully Manufactured Explosives. — The penalty of prision Thus, the unauthorized use of a weapon which has been
correccional shall be imposed upon any person who shall duly licensed in the name of its owner/possessor may still
unlawfully repack, alter or modify the composition of any aggravate the resultant crime. In the case at bar, although
lawfully manufactured explosives." appellants may have been issued their respective licenses to
possess firearms, their carrying of such weapons outside
their residences and their unauthorized use thereof in the
killing of the victim may be appreciated as an aggravating
SECTION 5. Coverage of the Term Unlicensed Firearm. — circumstance in imposing the proper penalty for murder. (Pp.
The term unlicensed firearm shall include: V. Molina; Gr 115835-36; July 22, 1998)

1) firearms with expired license; or

2) unauthorized use of licensed firearm in the commission of ILLEGAL POSSESSION OF FIREARM ONLY
the crime. SPECIAL AGGRAVATING CIRCUMSTANCE
IN CRIMES OF HOMICIDE, ETC.

RULE ON ILLEGAL POSSESSION OF FIREARMS Where murder or homicide was committed, the separate
BEFORE AN ACCUSED penalty for illegal possession shall no longer be meted out
MAYBE CONVICTED since it becomes merely a special aggravating circumstance.

In crimes involving illegal possession of firearm, the This statutory amendment may have been an offshoot of our
prosecution has the burden of proving the elements thereof, remarks in Pp. V. Tac-an and Pp. V. Quijada :
viz:
“Neither is the 2nd paragraph of Sec.1 meant to punish
a. the existence of the subject firearm; and homicide or murder with death if either crime is committed
with the use of an unlicensed firearm, i.e., to consider such
b. the fact that the accsused who owned or possessed it use merely as a qualifying circumstance and not as an
does not have the license or permit to possess the same. offense. That could not have been the intention of the
(People v. Castillo, 325 scra 613) lawmaker because the term “penalty” in the subject provision
is obviously meant to be the penalty for illegal possession of
The essence of the crime of illegal possession is the firearm and not the penalty for homicide or murder. We
possession, whether actual or constructive, of the subject explicitly stated in Tac-an :
firearm, without which there can be no conviction for illegal
possession. There is no law which renders the use of an unlicensed
firearm as an aggravating circumstance in homicide or
After possession is established by the prosecution, it would murder. Under an information charging homicide or murder,
only be a matter of course to determine whether the accused the fact that the death weapon was an unlicensed firearm
has a license to possess the firearm. (People v. Bansil, 304 cannot be used to increase the penalty for the 2nd offense of
scra 384) homicide or murder to death (or reclusion perpetua under
the 1987 Constitution). The essential point is that the
Possession of any firearm becomes unlawful only if the unlicensed character or condition of the instrument used in
necessary permit or license therefor is not first obtained. The destroying human life or committing some other crime, is not
absence of license and legal authority constitutes an included in the inventory of aggravating circumstances set
essential ingredient of the offense of illegal possession of out in Article 14 of the Revised Penal Code.
firearm and every ingredient or essential element of an
offense must be shown by the prosecution by proof beyond A law may, of course, be enacted making use of an
reasonable doubt. Stated otherwise, the negative fact of lack unlicensed firearm as a qualifying circumstance.” (People v.
or absence of license constitutes an essential ingredient of Molina; GR 115835-36, July 22, 1998)
the offense which the prosecution has the duty not only to
allege but also to prove beyond reasonable doubt. (People v.
Khor, 307 scra 295) NEW PENALTY FOR LOW POWERED
FIREARM IN ILLEGAL POSSESSION
"To convict an accused for illegal possession of firearms and OF FIREARMS
explosives under P.D. 1866, as amended, two (2) essential
elements must be indubitably established, viz: (a) the Petitioner, fortunately for him, is nonetheless not entirely
existence of the subject firearm or explosive which may be bereft of relief. The enactment and approval on 06 Jun 1997
proved by the presentation, of the subject firearm or of RA 8294, being favorable to him, should now apply. Under
explosive or by the testimony of witnesses who saw accused this new law, the penalty for possession of any low powered
in possession of the same, and (b) the negative fact that the firearm is only prision correccional in its maximum period
accused had no license or permit to own or possess the and a fine of not less than P15,000.00.
firearm or explosive which fact may be established by the
testimony or certification of a representative of the PNP Applying the Indeterminate Sentence Law, the present
Firearms and Explosive Unit that the accused has no license penalty that may be imposed is anywhere from two years,
or permit to possess the subject firearm or explosive." (Del four months and one day to four years and two months of
Rosario v. People, 05/31/01) prision correccional in its medium period, as minimum, up to
anywhere from four years, two moths and one day to six
years of prision correccional in its maximum period, as 1.3. How is animus possidendi established? There must be
maximum.. The court in addition, may impose a fine proved either by direct or circumstantial evidence the “intent”
consistent with the principle that an appeal in a criminal case of the accused to possess, or to keep the firearm.
throws the whole case open for review by the appellate a.) Animus Possidendi is determined by recourse to overt
tribunal. (Mario Rabaja v CA, et al., Oct 8/97) acts prior to or simultaneous with possession and other
surrounding circumstances. (People v. de la Rosa) when it is
established that the accused purchased the weapon in
ACTS PUNISHABLE: question, a good case for animus possidendi is made.
b.)Animus possidendi may also be inferred from the fact that
1. “upon any person who shall unlawfully manufacture, deal an unlicensed firearms was under the apparent control and
in, acquire, dispose, or possess any low powered firearm, power of the accussed. (People v. Verches, 33 SCRA 174)
such as rimfire handgun, .380 or .32 and other firearm of c.) People v. de Guzman, G.R. 117952-53 (February 14,
similar firepower, part of firearm, ammunition, or machinery, 2001) holds that the “gravamen” for the offense of violation
tool or instrument used or intended to be used in the of P.D.1866 is the possession of firearm without the
manufacture of any firearm or ammunition” necessary permit and/or license. “The crime is immediately
consummated upon mere possession of a firearm devoid of
2. "If homicide or murder is committed with the use of an legal authority, since it is assumed that the same is possed
unlicensed firearm, such use of an unlicensed firearm shall with “animus possidendi” Does it then follow that everyone
be considered as an aggravating circumstance.” found with the firearm is in “possession” thereof for the
purpose of prosecution and conviction under P.D. 1866 as
3. "If the violation of this Section is in furtherance of or amended by R.A. 8294? The results would be patently
incident to, or in connection with the crime of rebellion or absurd.
insurrection, sedition, or attempted coup d'etat, such
violation shall be absorbed as an element of the crime of h. A person who finds a firearms and takes it with him to the
rebellion, or insurrection, sedition, or attempted coup d'etat.” police station for the purpose of turning it over to the police
should be commended, rather than prosecuted.
4. "The same penalty shall be imposed upon the owner, ii. A person who is stopped at a check-point at which it is
president, manager, director or other responsible officer of discovered that there is firearms – placed either advertently
any public or private firm, company, corporation or entity, or inadvertently in his baggage compartment without his
who shall willfully or knowingly allow any of the firearms knowledge - cannot be held liable for illegal possession.
owned by such firm, company, corporation or entity to be iii. If the offender was in possession of an unlicensed only on
used by any person or persons found guilty of violating the the occasion of the shooting for transitory purpose and for
provisions of the preceding paragraphs or willfully or the short moment in connection with the shooting, the Supre
knowingly allow any of them to use unlicensed firearms or Court held in People v. Macasling, 237 SCRA 299 that there
firearms without any legal authority to be carried outside of was no evidence of “animus possidendi”.
their residence in the course of their employment.” iv. It then appears to be the more reasonable position that
where a person is apprehended with an unlicensed weapon,
5. “The penalty of arresto mayor shall be imposed upon any animus possidendi will be disputably presumed. The
person who shall carry any licensed firearm outside his accused may controvert the presumption of animus
residence without legal authority therefor” possidendi. To convict, the court needs proof beyond
reasonable doubt of animus possidendi.
6. “Any person who shall unlawfully tamper, change, deface
or erase the serial number of any firearm”.

7. “Any person who shall unlawfully repack, alter or modify 1.4 What the prosecution must prove for it to succeed under
the composition of any lawfully manufactured explosives”. the law is two-fold: first, the existence of the firearm; second,
the absence of a license or a permit to possess. (People v.
Rugay, 291 SCRA 692)

MALUM PROHIBITUM a.) To prove the existence of the firearm, it is not absolutely
necessary that the object evidence be presented. It is very
The offense of illegal possession of firearm is a malum well possible that the accused effectively conceals the
prohibitum punished by a special law, in which case good weapon before his apprehension. Incontrovertible testimonial
faith and absence of criminal intent are not valid defenses. evidence may successfully established the existence of the
(People v De Gracia, 7/6/94) firearm. (People v. Narvasa, G.R. 132878 [November 16,
1998]),
1. Manufacture, deal in, acquire, dispose or possess. It is
these acts relative to firearms. The obvious underlying b.) An interesting question arises. The present law makes
principle is the undesirability of the proliferation of firearms penalties depend on the caliberof the firearm, i.e, on whether
and their free traffic and possession. This is clear from the it is high-powered or low-powered In People v. Gutierrez,
first two “whereas” clause of P.D. 1866. It is then clear that G.R. 132878 (January 18, 1999) the Supreme Court ruled
illegal possession, etc. is a malum prohibitum. For purpose that a U.S. carbine M1 caliber .30 was high-powered
of simplicity we will confine our analysis to “possession”, because it was capable of ejecting more than one bullet in
although what we will discuss hereunder applies to one squeeze. If it is the criterion, then logically, caliber can
manufacture, dealing in, acquiring or disposing as well. be established by teetimony establishing the manner in
which the firearm ejected bullets. The distinguishing features
1.1. it is not correct to say without qualification that “intent” is of particularly firearms, furthermore, that may be recited by
immaterial. Intent as to possession is immaterial. Intention to keen observer sworn in a s witness my identify the firearm
possess is material. Whatever the purpose of the possession as well as it caliber. This can be established by a judicious
may be is consistently immaterial. That one was in combination of the testimonial evidence of observers abd
possession of an unlicensed firearms merely for one’s experts.
protection without intending harm on anybody is a fruitless
defense. It is the clear doctrine of such cases as People v. c.) A firearm is unlicensed when a certification from the
de la Rosa, 284 SCRA 158 that “mere possession without “Firearms and Explosives Unit” attests that no license has
criminal intent is sufficient on which to render a judgment of been issued. There will still be a case for illegal possession if
conviction”. one holding a firearm duly licensed carries it outside his
1.2. HOWEVER, possession must be established beyond residence when he has no permit to carry it outside his
reasonable doubt, and in view of the special meaning that residence (Pastrano v. Court of Appeals, 281 SCRA 287). A
“possession” has in criminal law, discovery by police, officers fortiori, the use of a licensed firearm by one not licensed or
alone of a firearmin the baggage or gloves compartment of a permitted to use it would still be illegal possession.
car will not necessarily be sufficient to sustain a conviction of
the car owner or driver. Essential to the legal concept of d.) A security guard employed by a security agency and
“possession” in illegal possession cases is animus issued a firearm by the agency has the right to assume that
possidendio. (People v. de la Rosa, supra; People v. the firearm issued to him is a licensed firearm. If it turns out
Sayang, 110 Phil 565). that the firearm is not licensed, there is no animus
possidendi of an unlicensed firearm. (Cuenco v. People, 33 into judicial irrelevance. The matter is definitely one that calls
SCRA 522). The case is obviously different, however, if a for a curative statute and the Supreme Court has referred
police officer leaves with a cousin for safekeeping his the matter to the Congress for another look. One moral
firearm. The cousin knows fully well that he has no permit or lesson can be learned: Laws passed as favor to one’s friend
authority to keep the firearm. If he accepts to do this favor, is a poor laws!
he is indictable. (People v. Sayong, 110 Phil 565)

2. Provided no other crime is committed. It is this proviso in OWNERSHIP IS NOT AN ESSENTIAL

the amendatory law that has visited countless woes on ELEMENT OF ILLEGAL POSSESSION
numerous judges and has occasioned not easily reconcilable
decisions by the Supreme Court .it is obviously a case of not The rule is that ownership is not an essential element of
only poor but miserable draftsmanship! illegal possession of firearms and ammunition. What the law
requires is merely possession which includes not only actual
2.1 It is clear that where there is no other offense except the physical possession but also constructive possession or the
unlawful possession of a firearm, the penalties provided for subjection of the thing to one’s control and management.
in the amended Section 1 shall be imposed: prision
correccional in its maximum period for low-powered firearms,
and prision mayor in its maximum periods for high-powered INTENT TO POSSESS, OR ANIMUS POSSIDENDI IS
firearms. Thus in People v. Nunez, G.R. 112092 (March 1, ESSENTIAL
2001) holds that a person may be convicted of simple illegal
possession if the illegal possession is proved and the A distinction should be made between criminal intent and
frustrated murder and murder case – involving the use of the intent to possess. While mere possession without criminal
illegal possession – has not been sufficiently proved. People intent is sufficient to convict a person for illegal possession
v. Avecilla, G.R. 117033 (February 15, 2001) teaches that of firearms, it must still be shows that there was animus
“the crime of illegal possession of firearms, in its simple possidendi or an intent to possess on the part of the
form, is committed any of the crimes of murder, homicide, accused.
rebellion, insurrection, sedition or attempted coup d’etat”.
There is no evidence of animus possedendi if the offender
2.2. It is also clear that where either homicide or murder is was in possession of an unlicensed firearm only on the
committed with the use of an unlicensed firearm, such use occasion of the shooting for a transitory purpose and for the
shall constitute an “aggravating circumstances”. It is well short moment in connection with the shooting.
known that R.A. 8294 was initiated by Senator Ramon
Revilla as a favor to his friend Robin Padilla who was then Lack of evidence is an essential element of the crime and
serving sentence for illegal possession. It was therefore that the same must be alleged in the Information and duly
meant to be more benevolent, as it is in the penalties it proved.
impose. Senator Revilla, however, could not see far enough (People -vs- Macasling, 237 SCRA 299)
(and regrettably neither could other legislators) and the
effect at least in the case of murder is that it may send the Ownership of the gun is immaterial or irrelevant in violation
accused to the lethal injection chamber where otherwise he of PD 1866, as amended. One may be convicted of
would not be meted out the death penalty. People v. possession of an unlicensed firearm even if he is not the
Montinola, G.R. 131856-57 (July 1, 2001) with the Chief owner thereof.
Justice himself as ponente illustrates the complication the (People -vs- Reynaldo Cruz, GR No.
law has introduced. In this case, the accused had been 76728, August 3, 1988)
charged with two offenses: robbery with homicide and illegal
possession of firearms. During the pendency of the case, the Even if the gun is "paltik," there is a need to secure license
amended law came into force. The court then held that for the gun, and if found without any license therefor, the
insofar as R.A. 8294 was favorable to the accused in that it offender is liable for violation of PD 1866.
spared him from separate prosecution for illegal possession, (People vs- Filemon Ramos, 222 SCRA 557)
the charge for illegal possession was dropped. Insofar,
however, as it increased the penalty for robbery with If an unlicensed firearm is used to commit a crime other than
homicide, the aggravating circumstances of the use of homicide or murder, such a direct assault with attempted
unlicensed weapon could not be appreciated. Rule 110, homicide, the use of an unlicensed firearm is neither an
Section 9 of the Revised Rules of Criminal Procedure will aggravating circumstances nor a separate offense. Since the
apply: As an aggravating circumstances, the use of the law uses the word Homicide or Murder, possession of an
unlicensed weapon must be alleged in the information. unlicensed firearm is not aggravating in Attempted Homicide.
(People -vs- Walpan Ladjaamlam, et al.,
2.3 When the violation of the law penalizing unlicensed GR No. 136149-51, September 19, 2000)
weapon is “in furtherance of or incident to, or in connection
with the crimes of rebellion, insurrection, sedition or Where the accused was charged of Murder and violation of
attempted coup d’etat” then the violation is absorbed in the PD 1866 and that, in the meantime, Republic Act 8294 took
main offense. (R.A. 8294, Section 1). effect, the accused should be convicted only of Murder. The
use of unlicensed firearm should not be considered as
2.4 What happens when an unlicensed weapon is used in aggravating because the Court will have to impose the death
the commission of other offenses other that homicide, penalty which cannot be allowed because, at the time of the
murder, rebellion, insurrection, sedition or attempted coup d’ commission of the offense, the death penalty cannot as yet,
etata? People v. Walpandladjaalam, G.R. 1361149-51 be imposed. However, in his concurring opinion, Chief
( September 19, 2000) provides the answer in the Justice Hilario Davide, Jr. declared that, under such a factual
distinctively clear language of Justice Panganiban: “The law milieu, the charge of violation of PD 1866 should continue
is clear: the accused can be convicted of simple illegal and if the accused is found guilty, he should be meted the
possession of firearms, provided that “no other crime was death penalty under Republic Act 8294.
committed by the person arrested’. If the intention of the law (People -vs- Victor Macoy, GR No.
in the second paragraph were to refer only to homicide and 126253, August 16, 2000)
murder, it should have expressly said so, as it did in the third
paragraph. Verily, where the law does not distinguish, Where the prosecution failed to adduce the gun in evidence
neither should we.” In brief, where the accused commits a coupled with the fact that per Certification of the FEU, " no
crime other than those enumerated with the use of an available information regarding the license for the gun and
unlicensed weapon, no separate charge for such use will be the inconsistency in the evidence of the prosecution, the
brought against him. Consistent with this is the disposition by latter failed to discharge its burden.
the Supreme court decreed: “Accordingly, all pending cases (People -vs- Ricolito Rugay, et al., 291 SCRA 692)
for illegal possession of firearms should be dismissed if they
arose from the commission” of crimes other than those Mere possession without criminal intent is sufficient on which
indicated in Section 1 and 3 of R.A. 8294. to render a judgment of conviction for violation of PD 1866,
as amended. However, there must be animus possedendi or
2.5 Clearly the law leads to absurd results, for when the use intent to possess without any license or permit. Good faith is
of an unlicensed weapon attends the commission of a crime, not a defense. Neither is lack of criminal intent.
no matter how trivial, the case of illegal possession recedes (People -vs- Rodolfo Dela Rosa, et al., 284 SCRA 158)
 A secured a loan from B and pledged his unlicensed firearm
Temporary, incidental, casual or harmless possession of as security for the loan. A promised to pay his loan and
firearm is not punishable. Hence, stealing a firearm to render retrieve the firearm as soon as he had money. B found in
the owner defenseless is not a crime under the law. (idem, possession of the unlicensed firearm. For the court to
supra) sustain the contention of B is to authorize the indefinite
possession by B of the unlicensed firearm because there
Possession includes actual physical possession and was no way to determine when A could pay his account.
constructive possession. The animus can be determined (People -vs- Cornelio Melgas, 100 Phil. 298)
from the overt acts of the accused prior to or coetaneous
with and other surrounding circumstances of such If a licensed firearm if used to commit Murder or Homicide,
possession. Hence, where the accused found a gun and was such circumstances is merely a special aggravating
on his way to deliver the gun to the police authority and was circumstance which must be alleged in the Information and
arrested, in the process, there is no animus possedendi. cannot be offset by any mitigating circumstance. (People
(People -vs- Rodolfo Dela Rosa, et al., supra) -vs- Meriato Molina, et al., G.R. No. 115835, July 22, 1998;
People -vs- Narvasa, G.R. no. 128618 November 18, 1998)
Even if a paltik is a homemade gun and thus illegally
manufactured nevertheless, the Prosecution is burdened to The Decision of the Supreme Court in People -vs- Paterno
prove that the accused has no license for the gun. Tac-an, 182 SCRA 601; People -vs- Jesus Deunida, and
(People -vs- Felimon Ramos, et al., 222 SCRA 557) People -vs- Barros and People -vs- Daniel Quijada 259
SCRA 191 had been overtaken by Republic Act 8294.
For the accused to be guilty of violation of PD 1866 as
amended the Prosecution must prove: (a) the existence of Under the amendment, the death penalty may now be
the subject firearm; (b) the fact that the accused who owned imposed if the accused is convicted of Murder with the use
or possessed the firearm does not have the corresponding of licensed or unlicensed firearms.
license or permit to possess the same.
(People -vs- Ricolito Rugay, et al., 291 SCRA 692) As long as the accused is proved to have been in
possession of the unlicensed firearm even if the firearm is
Where the accused is convicted of violation of Republic Act not adduced in evidence, conviction under the law is proper.
8294 and meted a penalty less than six (6) years, and a fine (People -vs- Felicisimo Narvasa, supra)
of P15,000.00, he should be ordered to undergo subsidiary
imprisonment in case of insolvency.
(Mario Rabaja -vs- Court of Appealss, et al., 280 SCRA 290) Republic Act 8294 took effect on July 6, 1997.

In the light of "People -vs- Martin Simon," 234 SCRA 555, If the accused is charged of Murder and violation of PD 1866
and Articles 13 and 14, in relation to Article 63, of the and during the trial, Republic Act 8294 took effect, the
Revised Penal Code and the Indeterminate Sentence Law accused cannot be convicted of violation of PD 1866, as
for violation of the Revised Penal Code may now be applied amended. Neither should the possession of an unlicensed
for violation of PD 1866, as amended and Rep[ublic Act firearm be considered as an aggravating circumstance as it
6425, as amended. will be less favorable to the accused. If the accused used a
sumpak to kill the victim, the prosecution must prove that he
Even if a person is licensed to possess a firearms but brings had no license or permit to possess the sumpak.
out firearm outside of his residence without permit therefor, (People -vs- Cipriano de Vera,
he is guilty of violation of the last paragraph of Section 1 of G.R. No. 121462-63, June 9, 1999)
PD 1866, as amended. A Mission Order cannot take the
place of a license. A Mission Order can only be issued to Compare "People -vs- Wilfredo Filoteo," 290 SCRA 627
one licensed to possess a firearm. where the accused was convicted of Murder and violation of
(Pedrito Pastrano -vs- Court of Appeals, et al., 281 SCRA PD 1866 and during the pendency of the appeal, Republic
287) Act 8294 took effect. Our Supreme Court affirmed the
conviction of the Accused of two (2) crime of Homicide and
If the accused borrowed a gun from another who is licensed violation of PD 1866, as amended, and applied the penalty
to possess firearm, may the former be liable for violation of for the crimes under the amendment.
PD 1866, as amended? Yes. Even if the gun is licensed to
one and lends it to another, the latter is liable for violation of In "People -vs- Veriato Molina, et al.," 292 SCRA 742, our
PD 1866, as amended. A license to possess a firearm and a Supreme Court En Banc declared that where the accused
permit to carry a licensed firearm outside of his residence is was convicted of said crio,es, by the Trial Court but that
not transferable. during the pendency of the appeal, with the Supreme Court,
(Pedrito Pastrano -vs- Court of Appeals, et al., supra) Republic Act 8294 took effect, the accused should only be
convicted of Murder with the use of an unlicensed firearm as
Even if the firearm subject of the crime is not adduced in mere a special aggravating circumstance.
evidence one may still be convicted of possession of an
unlicensed firearm as long as proof was adduced that the Murder, under Republic Act 8294, is used in its generic term
acused was in possession of a firearm. and, hence, includes Parricide
(People -vs- Felicisimo Narvasa, GR No. (People versus Octavio Mendoza,
128618, November 16, 1998) GR No. 109270-80, January 18,1999)

NOTE: Under Republic Act 8294, the penalty depends upon A United States carbine M1, caliber .3-0 is a high-powered
the caliber of the gun. Suppose there is no testimony as to gun because it is capable of emitting two or three bullets in
the caliber of the gun? one squeeze.
(People -vs- Eduardo Gutierrez,
Where a security guard was given by his employer, a GR No. 132878, September 1999)
security agency, a firearm, and the accused assumed that
the employer secured the license for the firearm but that it It is not necessary that the firearm be produced and offered
turned out that the employer failed to get any license, the in evidence for Republic Act 8294 to apply. It is not enough
security guard is not criminally liable. The security guard has that there is evidence of the existence of the gun which can
the right to assume that the security agency secured the be established either by testimony or presentation of the gun
license. itself.
(Ernesto Cuenca -vs- People, 33 SCRA 522)
Possession of an unlicensed firearm and used in killing is a
If a constabulary soldier entrusted his gun to the accused for special aggravating circumstance.
safekeeping and later the accused found in possession of (People -vs- Felicisimo Narvasa,
the gun, the accused is guilty of possession of unlicensed GR No. 128618, November 18, 1998)
firearm. To exculpate himself, the accused must prove
absence of animus possidendi. The Decision of the Supreme Court in People versus Rex
(People -vs- Perlito Soyang, et al., 110 Phil. 565, 583) Bergante, et. al., GR No. 120369, February 27, 1998, that
the use of an unlicensed firearm to commit murder is only a
generic aggravating circumstance is no longer true.
 even establish a prima facie case. It merely bolsters the
Possession under the law may either be actual physical case for the prosecution but does not stand as proof of the
possession or constructive possession. However, although fact of absence or lack of a license." (emphasis supplied)
the crime under PD 1866, as amended, is malum prohibitum, (PP -vs- JULIAN CASTILLO Y LUMAYRO, G.R. No.
however, there must be animus possidendi, or intent to 131592-93, Feb. 15, 2000)
possess. Animus possidendi may be inferred from the fact
that an unlicensed firearm is under the apparent control and ELEMENTS OF ILLEGAL POSSESSION OF FIREARMS
power of the accused. however, animus possidendi may be To convict an accused for illegal possession of firearms and
contradicted if a person in possession of an unlicensed explosive under P.D. 1866 as amended, two (2) essential
firearm does not assert a right thereto. elements must be indubitably established, viz: (a) the
existence of the subject firearm or explosive which may be
If the possession of an unlicensed gun is merely temporary, proved by the presentation of the subject firearm or
incidental or transient, the same is not punishable under PD explosive or by the testimony of witnesses who saw accused
1866. However, the law does not provide for a fixed period of in possession of the same, and (b) the negative fact that the
time for one to be deemed in "possession" of an unlicensed accused had no license or permit to own or possess the
firearm. (People -vs- Rolando Verches, 233 SCRA 174). firearm or explosive which fact may be established by the
Each factual milieu must be considered. testimony or certification of a representative of the PNP
Firearms and Explosives Unit that the accused has no
license or permit to possess the subject firearm or explosive.
IMPLICATION BY RA 8294 ON PD 1866 (ILLEGAL In the case at bar, the prosecution failed to prove the second
POSSESSION OF FIREARMS) element of the crime, i.e., the lack of license or permit of
appellant Cortez to possess the hand grenade. Although the
P.D. 1866, which codified the laws on illegal possession of hand grenade seized by PO2 Santos from appellant was
firearms, was amended on June 6, 1997 by Republic Act presented in court, the records bear that PO2 Santos did not
8264. Aside from lowering the penalty for said crime, R.A. submit the grenade to the PNP Firearms and Explosives Unit
8294 also provided that if homicide or murder is committed for verification. This explains why no certification or
with the use of an unlicensed firearm, such use shall be testimony was adduced by the prosecution at the trial to
considered as a special aggravating circumstance. This prove that appellant Cortez was not licensed to possess the
amendment has two (2) implications: first, the use of an explosive. The failure of the prosecution to adduce this fact
unlicensed firearm in the commission of homicide or murder is fatal to its cause. We stress that the essence of the crime
shall not be treated as a separate offense, but merely as a penalized under P.D. 1866 is primarily the accused's lack of
special aggravating circumstance; second, as only a single license or permit to carry or possess the firearm, ammunition
crime (homicide or murder with the aggravating or explosive as possession by itself is not prohibited by law.
circumstance of illegal possession of firearm) is committed
under the law, only one penalty shall be imposed on the MAY EXPLOSIVES BE GIVEN A PERMIT OR LICENSE?
accused. In the case of an explosive, a permit or license to possess it
is usually granted to mining corporations, military personnel
Prescinding therefrom, and considering that the provisions of and other legitimate users. (PP -vs- BERNIE CORTEZ Y
the amendatory law are favorable to herein appellant, the NATANIO, ET AL., G.R. Nos. 131619-20, Feb. 1, 2000)
new law should be retroactively applied in the case at bar. It
was thus error for the trial court to convict the appellant of UNDER R.A. 8294 A SEPARATE CONVICTION FOR
two (2) separate offenses, i.e., Homicide and Illegal ILLEGAL POSSESSION OF FIREARMS AND FOR
Possession of Firearms, and punish him separately for each HOMICIDE IS NOT ALLOWED
crime. Based on the facts of the case, the crime for which With respect to the conviction of accused-appellant for illegal
the appellant may be charged is homicide, aggravated by possession of firearms under P.D. No. 1866, it was held in
illegal possession of firearm, the correct denomination for the case of People vs. Molina and reiterated in the recent
the crime, and not illegal possession of firearm, aggravated case of People vs. Ronaldo Valdez, that in cases where
by homicide as ruled by the trial court, as it is the former murder or homicide is committed with the use of an
offense which aggravates the crime of homicide under the unlicensed firearm, there can be no separate conviction for
amendatory law. the crime of illegal possession of firearms under P.D. No.
1866 in view of the amendments introduced by Republic Act
No. 8294. Thereunder, the use of unlicensed firearm in
EVEN IF ACCUSED ADMITTED THAT HE HAS NO murder or homicide is simply considered as an aggravating
LICENSE, SUCH ADMISSION IS NOT SUFFICIENT circumstance in the murder or homicide and no longer as a
PROOF OF ILLEGAL POSSESSION OF FIREARM separate offense. Furthermore, the penalty for illegal
possession of firearms shall be imposed provided that no
Hence, in the case at bar, although the appellant himself crime is committed. In other words, where murder or
admitted that he had no license for the gun recovered from homicide was committed, the penalty for illegal possession
his possession, his admission will not relieve the prosecution of firearms is no longer imposable since it becomes merely a
of its duty to establish beyond reasonable doubt the special aggravating circumstance. (PP -vs- AUGUSTO
appellant's lack of license or permit to possess the gun. In LORETO RINGOR, JR., G.R. No. 123918, Dec. 9, 1999)
People vs. Solayao, we expounded on this doctrine, thus:

"x x x by its very nature, an admission is the mere

acknowledgement of a fact or of circumstances from which
guilt may be inferred, tending to incriminate the speaker, but
not sufficient of itself to establish his guilt." In other words, it
is a statement by defendant of fact or facts pertinent to
issues pending, in connection with proof of other facts or
circumstances, to prove guilt, but which is, of itself,
insufficient to authorize conviction. From the above
principles, this Court can infer that an admission in criminal
cases is insufficient to prove beyond doubt the commission
of the crime charged.

"Moreover, said admission is extrajudicial in nature. As such,

it does not fall under Section 4 of Rule 129 of the Revised
Rules of Court which states:

An admission, verbal or written, made by a party in the

course of the trial or other proceedings in the same case
does not require proof.

"Not being a judicial admission, said statement by accused-

appellant does not prove beyond reasonable doubt the
second element of illegal possession of firearm. It does not
 view that an extension telephone is not among such devices
ELMER AT RANDOM or arrangements.
Anything from mundane to ethereal; from puerile to
polemical. RAPE AS CRIME AGAINST PERSONS
(R.A. 8353)
Thursday, June 19, 2008
Rape, When And How Committed
Special Penal Laws, Reviewer 2
ANTI-WIRE TAPPING LAW "1) By a man who shall have carnal knowledge of a woman
(RA 4200) under any of the following circumstances:

Sec. 1. It shall be unlawful for any person, not being "a) Through force, threat, or intimidation;
authorized by all the parties to any private communication or "b) When the offended party is deprived of reason or
spoken word, to tap any wire or cable, or by using any other otherwise unconscious;
device or arrangement, to secretly overhear, intercept, or "c) By means of fraudulent machination or grave abuse of
record such communication or spoken word by using a authority; and
device commonly known as a dictaphone or dictagraph or "d) When the offended party is under twelve (12) years of
dectaphone or walkie-talkie or tape recorder, or however age or is demented, even though none of the circumstances
otherwise described: mentioned above be present.

It shall also be unlawful for any person, be he a participant or "2) By any person who, under any of the circumstances
not in the act or acts penalized in the next preceding mentioned in paragraph 1 hereof, shall commit an act of
sentence, to knowingly possess any tape record, wire sexual assault by inserting his penis into another person's
record, disc record, or any other such record, or copies mouth or anal orifice, or any instrument or object, into the
thereof, of any communication or spoken word secured genital or anal orifice of another person.
either before or after the effective date of this Act in the
manner prohibited by this law; or to replay the same for any
other person or persons; or to communicate the contents WHEN INEXCUSABLE IMPRUDENCE ON
thereof, either verbally or in writing, or to furnish PART OF VICTIM AS TO IDENTITY OF
transcriptions thereof, whether complete or partial, to any OFFENDER IS NOT RAPE
other person: Provided, That the use of such record or any
copies thereof as evidence in any civil, criminal investigation The evidence shows that this mistake was purely a
or trial of offenses mentioned in section 3 hereof, shall not subjective configuration of Zareen's mind — an assumption
be covered by this prohibition. entirely contrived by her. Our impression is that Silvino had
nothing to do with the formulation of this belief; he did
nothing to mislead or deceive Zareen into thinking that he
LISTENING TO CONVERSATION was Enrico. In fact, Silvino precisely, and confidently, told
IN EXTENSION LINE OF TELEPHONE her, "Zareen, it's not Ricky, it's Jun. I love you." It is thus
IS NOT WIRE-TAPPING obvious that whatever mistake there was could only be
attributable to Zareen — and her inexcusable imprudence —
An extension telephone cannot be placed in the same and to nobody else. Clearly, the fault was hers. She had the
category as a dictaphone, dictagraph or the other devices opportunity to ascertain the identity of the man but she
enumerated in Section 1 of RA 4200 as the use thereof preferred to remain passive and allow things to happen as
cannot be considered as tapping the wire or cable of a they did. Silvino never used force on her and was even most
telephone line. The telephone extension in this case was not possibly encouraged by the fact that when he pulled down
installed for that purpose. It just happened to be there for her panties she never objected; when her legs were being
ordinary office use. It is a rule in statutory construction that in parted she never objected; and, when he finally mounted her
order to determine the true intent of the legislature, the she never objected. Where then was force?
particular clauses and phrases of the statute should not be
taken as detached and isolated expressions, but the whole Third, Zareen was not deprived of reason or otherwise
and every part thereof must be considered in fixing the unconscious when the accused had intercourse with her.
meaning of any of its parts. (66 SCRA 113,120) Her lame excuse was that she was half-asleep. However
she admitted that in the early morning of 1 May 1994 she
woke up to find someone removing her underwear.
A PERSON CALLING ANOTHER BY PHONE Thuswise it cannot be said that she was deprived of reason
MAY SAFELY PRESUME THAT THE OTHER or unconscious. She knew, hence was conscious, when her
MAY HAVE AN EXTENSION LINE AND panties were being pulled down; she knew, hence was
RUNS THE RISK OF BEING HEARD BY A conscious, when her legs were being parted to prepare for
3RD PARTY. the sexual act; she knew, hence was conscious, when the
man was pulling down his briefs to prepare himself likewise
An extension telephone is an instrument which is very for the copulation; she knew, hence was conscious, when
common especially now when the extended unit does not the man mounted her and lusted after her virtue. Her
have to be connected by wire to the main telephone but can justification was that she never objected to the sexual act
be moved from place to place within a radius of a kilometer from the start because she thought that the man was her
or more. A person should safely presume that the party he is boyfriend with whom she was having sex almost every night
calling at the other end of the line probably has an extension for the past three (3) weeks as they were getting married
telephone and he runs the risk of a third party listening as in and wanted already to have a baby. In other words, her urge
the case of a party line or a telephone unit which shares its could not wait for the more appropriate time. (People v.
line with another. Salarza, Jr.)

MERE ACT OF LISTENING TO A NATURE OF INTIMIDATION IN RAPE CASES

TELEPHONE CONVERSATION IN AN
EXTENSION LINE IS NOT PUNISHED BY Intimidation is addressed to the mind of the victim. It is
ANTI-WIRE TAPPING LAW subjective and its presence cannot be tested by any hard-
and-fast rule, but must be viewed in the light of the victim’s
It can be readily seen that our lawmakers intended to perception and judgement at the time of the crime.
discourage through punishment, persons such as In the case at bar, at the time the crime was committed, the
government authorities or representatives of organized victim was 40 yrs. old, 5 months pregnant, unarmed and
groups from installing devices in order to gather evidence for married to a person older than her by almost 20 yrs.. In
use in court or to intimidate, blackmail or gain some contrast, appellant was in his 20’s, armed with a gun and
unwarranted advantage over the telephone users. purportedly in the company of several NPA members. The
Consequently, the mere act of listening, in order to be crime happened in the evening and in a place where help
punishable must strictly be with the use of the enumerated was impossible. The nearest neighbor of the victim is some
devices in RA 4200 or others of similar nature. We are of the 3 kms. from their hut. Considering all these circumstances,
we hold that the victim was intimidated to submit to the
lustful desire of the appellant. (Pp. V. Mostrales; GR 125937,
Aug.28, 1998) It is clear, however, that the aggravating circumstance of
dwelling is attendant in the commission of the crime. Article
14(5) of the Revised Penal Code provides that this
WHEN INTIMIDATION IS SUSTAINED circumstance aggravates a felony where the crime is
BY MORAL ASCENDANCY IN RAPE committed in the dwelling of the offended party, if the latter
has not given provocation. In the instant case, the aforesaid
Intimidation in rape cases is not calibrated nor governed by circumstance of dwelling was definitely present in the
hard and fast rules. Since it is addressed to the victim's and commission of the crime of rape with the use of a deadly
is therefore subjective, it must be viewed in light of the weapon. (Pp. V. Prades; GR 127569, July 30, 1998)
victim's perception and judgment at the time of the
commission of the crime. It is enough that the intimidation INDEMNITY IN CERTAIN CASES OF RAPE
produced fear — fear that if the victim did not yield to the
bestial demands of the accused, something far worse would The recent judicial prescription is that the indemnification for
happen to her at that moment. Where such intimidation the victim shall be in the increased amount of P75,000.00 if
existed and the victim was cowed into submission as a result the crime of rape is committed or effectively qualified by any
thereof, thereby rendering resistance futile, it would be the of the circumstances under which the death penalty is
height of unreasonableness to expect the victim to resist with authorized by the applicable amendatory laws. (Pp. V.
all her might and strength. If resistance would nevertheless Prades; GR127569, July 30, 1998)
be futile because of intimidation, then offering none at all
does not mean consent to the assault so as to make the MORAL DAMAGES NEED NOT BE ALLEGED
victim's submission to the sexual act voluntary. AND PROVED IN CASES OF RAPE

In any event, in a rape committed by a father against his own Indeed, the conventional requirement of allegata et probata
daughter, as in this case, the former's moral ascendancy or in civil procedure and for essentially civil cases should be
influence over the latter substitutes for violence or dispensed with in criminal prosecutions for rape with the civil
intimidation. Likewise, it must not be forgotten that at her aspect included therein, since no appropriate pleadings are
tender age of 14 years, EDEN could not be expected to act file wherein such allegations can be made. (Pp. V. Prades;
with the equanimity of disposition and with nerves of steel, or GR 127569, July 30, 1998)
to act like a mature and experienced woman who would MEANING OF DEADLY WEAPON
know what to do under the circumstances, or to have IN CASES OF RAPE
courage and intelligence to disregard the threat. Even in
cases of rape of mature women, this Court recognized their A “deadly weapon” is any weapon or instrument made and
different and unpredictable reactions. Some may shout; designed for offensive or defensive purposes, or for the
some may faint; and some may be shocked into insensibility; destruction of life or thee infliction of injury; or one which,
while others may openly welcome the intrusion. (People v. from the manner used, is calculated or likely to produce
Agbayani; GR 122770, Jan. 16, ’98) death or serious bodily harm. In our jurisdiction, it has been
held that a knife is a deadly weapon. (Pp. V. Alfeche; GR
124213, Aug. 17, 1998)
TEST TO DETERMINE WHETHER A WOMAN
VOLUNTARILY SUBMITTED TO SEXUAL INTERCOURSE
FORCE AND INTIMIDATION NOT
Physical resistance is not the sole test to determine whether NEEDED IN RAPE OF RETARDATE
or not a woman involuntarily succumbed to the lust of an
accused. Jurisprudence holds that even though a man lays Although the information alleged “force, threats, and
no hand on a woman, yet if by array of physical forces he so intimidation”, it nevertheless also explicitly stated that Tessie
overpowers her mind that she does not resist or she ceases is a “mentally retarded person.” We have held in a long line
resistance through fear of greater harm, the consummation of cases that if the mental age of a woman above 12 years is
of unlawful intercourse by the man is rape. (Pp. V. that of a child below 12 years, even if she voluntarily
Mostrales; GR 125937, Aug.28, 1998) submitted to the bestial desires of the accused, or even if the
circumstances of force or intimidation or of the victim being
deprived of reason or otherwise unconscious are absent, the
DATE OF COMMISSION OF RAPE NOT ESSENTIAL accused would still be liable for rape under the 3rd
ELEMENT OF SAID CRIME circumstance of Art. 335. The rationale therefor is that if
sexual intercourse with a victim under 12 years of age is
It is settled that even a variance of a few months between rape, then it should follow that carnal knowledge of a woman
the time set out in the indictment and that established by the whose mental age is that of a child below 12 years would
evidence during the trial has been held not to constitute an constitute rape. (People v. Hector Estares; 12/5/97)
error so serious as to warrant reversal of a conviction solely
on that score. The failure of the complainant to state the USE OF FORCE OR INTIMIDATION NOT
exact date and time of the commission of the rape is a minor AN ELEMENT OF STATUTORY RAPE
matter
(Pp. V. Bernaldez; GR 109780,Aug. 17, 1998) In any event, the use of force or intimidation is not an
element of statutory rape. The offense is established upon
proof that the accused sexually violated the offended party,
EXAMPLE OF VIRTUAL CONFESSION OF FACT AND who was below 12 years of age at the time of the sexual
NOT IN LAW IN CASES OF RAPE assault. In other words, it is not relevant to this case whether
appellant slapped or boxed the victim, or whether he used a
It is conceded that after the rape, Accused sent complainant single-bladed or a double-edged knife. (People v. Oliva;
two letters in which he implored her forgiveness and offered 12/5/97)
to leave his wife so that he could be with her. In fine, RAPE CAN BE COMMITTED IN
appellant sealed his own fate by admitting his crime under a MANY DIFFERENT PLACES
seal of virtual confession in fact, if not in law. (Pp. V. Prades;
GR 127569, July 30, 1998) It has been emphasized that rape can be committed in many
different places, including places which to many would
CHILD BORN BY REASON OF RAPE appear to be unlikely and high-risk venues for sexual
MUST BE ACKNOWLEDGED BY OFFENDER advances. Thus, rape has been committed even in places
UPON ORDERS OF THE COURT where people congregate, in parks, along the roadside,
within school premises, inside a house where there are other
Furthermore, since ANALIZA begot a child by reason of the occupants, and even in the same room where other
rape, DANTE must acknowledge and support the offspring members of the family are also sleeping. (People v.
pursuant to Article 345 of the Revised Penal Code in relation Gementiza; 1/29/98)
to Article 201 of the Family Code. (People v. Alfeche)

DWELLING AS AGGRAVATING WHEN SWEETHEART DEFENSE

CIRCUMSTANCE IN RAPE CASES IS TENABLE IN RAPE
 and complainants' mother were not legally married but were
The “sweetheart” defense put up by the accused merits merely living in common-law relation. In fact, Lenny and
serious consideration. While the theory does not often gain Jenny interchangeably referred to accused-appellant as their
favor with the court, such is not always the case if the hard stepfather, "kabit," "live-in partner ng Mama ko," "tiyo," and
fact is that the accused and the supposed victim are in fact "tiyuhin." Complainants' sister-in-law, Rosalie Macaro, also
intimately related except that, as is true in most cases, the testified that her "mother-in-law is not legally married to
relationship is either illicit, or the parents are against it. In accused-appellant." Accused-appellant likewise said on
such instances, it is not improbable that when the direct and cross-examination that he was not legally married
relationship is uncovered, the victim’s parents would take the to the mother of the complainants, and he referred to her as
risk of instituting a criminal action rather than admit to the his live-in partner. This was confirmed by Emma Macaro,
indiscretion of their daughter. And this, as the records reveal, mother of the complainants. Although the rape of a person
is what happened in this case. (People vs Rico Jamlan under eighteen (18) years of age by the common-law spouse
Salem, October 16/97) of the victim's mother is punishable by death, this penalty
cannot be imposed on accused-appellant in these cases
because this relationship was not what was alleged in the
A MEDICAL EXAMINATION OF VICTIM information's. What was alleged was that he is the stepfather
IS NOT ELEMENT OF RAPE of the complainants.

A medical examination is not an indispensable element in a INFORMATION IN RAPE CASES WITH USE OF DEADLY
prosecution for rape. The accused may be convicted on the WEAPON MUST BE ALLEGED OTHERWISE DEATH
sole basis of complainant’s testimony, if credible, and the PENALTY, CANNOT BE IMPOSED
findings of the medico-legal officer do not disprove the Neither can accused-appellant be meted the death penalty in
commission of rape. People v Jenelito Escober Y Resuento, Criminal Case No. 8900 where he committed the rape after
Nov 6/97) threatening the victim, Lenny Macaro, with a knife. Under
Art. 335 of the Revised Penal Code, simple rape is
HEINOUSNESS OF RAPE OF punishable by "reclusion perpetua." When the rape is
ONE’S DESCENDANT committed "with the use of a deadly weapon," i.e., when a
deadly weapon is used to make the victim submit to the will
In the case before us, the accused raped his own flesh and of the offender, the penalty is ”reclusion perpetua to death."
blood at such a tender age of eleven. He thus violated not This circumstance must however be alleged in the
only he purity and her trust but also the mores of his society information because it is also in the nature of a qualifying
which he has scornfully defined. By inflicting his animal circumstance which increases the range of the penalty to
greed on her in a disgusting coercion of incestuous lust, he include death. In Criminal Case No. 8900, while complainant
forfeits all respect as human being and is justly spurned by Lenny testified that accused-appellant raped her after
all, not least of all, by the fruit of his own loins whose threatening her with a knife, the "use of a deadly weapon" in
progeny he has forever stained with his shameful and the commission of the crime was not alleged in the
shameless lechery. People v jenelito Escober Y Resuento, information. Therefore, even if the same was prove, it cannot
Nov 6/97) be appreciated as a qualifying circumstance. The same can
only be treated as generic aggravating circumstance which,
in this case, cannot affect the penalty to be impose, i.e.,
MERE DISCIPLINARY CHASTISEMENT reclusion perpetua. Accordingly, the accused-appellant
IS NOT ENOUGH TO DOUBT CREDIBILITY should be sentenced to the penalty of reclusion perpetua.
OF RAPE VICTIM WHO IS A DESCENDANT Accordingly, the accused-appellant should be sentenced to
the penalty of reclusion perpetua for each of the four counts
Mere disciplinary chastisement is not strong enough to make of rape. (PP -vs- FELIXBERTO FRAGA Y BAYLON, G.R.
daughters in a Filipino family invent a charge that would only Nos. 134130-33, April 12, 2000)
bring shame and humiliation upon them and their own family
and make them the object of gossip among their classmates EXAMINATIONS OF ALL SPECIMENS IN DRUG CASES
and friends. It is unbelievable that Jacqueline would fabricate NOT NECESSARY
a serious criminal charge just to get even with her father and We are not persuaded by the claim of accused-appellants
to emphasize with her sister. The sisters would not contrive that in order for them to be convicted of selling 2,800 grams
stories of defloration and charge their own father with rape of marijuana, the whole specimen must be tested
unless these stories are true. For that matter, no young considering that Republic Act 7659 imposes a penalty
Filipina of decent repute would falsely and publicly admit that dependent on the amount or the quantity of drugs seized or
she had been ravished and abused considering the social taken. This Court has ruled that a sample from one of the
stigma thereof. People v Tabugoca, GR No. 125334) packages is logically presumed to be representative of the
entire contents of the package unless proven otherwise by
SODOMY IS NOT THE SAME AS IGNOMINY NOR CAN IT accused-appellant. (PP -vs- DIOLO BARITA Y SACPA, ET
BE CONSIDERED AS IGNOMINY. AL., G.R. No. 123541, Feb. 8, 2000)

"Ignominy is a circumstance pertaining to the moral order, MEDICAL EXAMINATION NOT REQUIRED IN RAPE
which adds disgrace and obliloquy to the material injury CASES
caused by the crime." Thus, for ignominy to be appreciated This Court has also ruled that a medical examination is not
as an aggravating circumstance in the instant case, it must indispensable to the prosecution of rape as long as the
be shown that the sexual assault on Francis Bart was done evidence on hand convinces the court that a conviction of
by accused-appellant to put the former to shame before rape is proper.
killing him. This is clearly not the case here for accused-
appellant's intention was shown to be the commission of WHEN CARNAL KNOWLEDGE IS CONSUMATED
sexual abuse on the victim as an act of revenge for his It is worth mentioning that in rape cases, the prosecution is
similar experience as a child. not required to establish penile penetration because even
the slightest touching of the female genitalia, or mere
WHEN THE INFORMATIONS ON RAPE CASES FAILED introduction of the male organ into the labia of the pudendum
TO ALLEGE ACTUAL RELATIONSHIP ETC. HENCE constitutes carnal knowledge. (PP -vs- FERNANDO
DEATH PENALTY CANNOT BE IMPOSED CALANG MACOSTA, alias "DODONG" G.R. No. 126954,
In this case, the information's in Criminal Case Nos. 8899- Dec. 14, 1999)
8900 alleged that accused-appellant, "who is the stepfather
of the private offended party" by "force, violence and THE CHARGE OF RAPE DO NOT INCLUDE SIMPLE
intimidation" succeeded in having carnal knowledge of the SEDUCTION. HENCE, IF ONE IS CHARGE WITH RAPE
latter when she was then 14 and 13 years old, respectively. AND IS NT PROVEN, ACCUSED CANNOT BE HELD
On the otherhand, the information in Criminal Case Nos. GUILTY OF SIMPLE SEDUCTION.
8945-8946 alleged that accused-appellant, "who…. is the Even as the prosecution failed to proved the use of force,
stepfather of victim Jenny Macaro" succeeded in having violence and intimidation by the accused-appellant, we
carnal knowledge of the latter, who was a girl below 12 years cannot convict the accused-appellant of the crime of simple
old. As already noted, contrary to these allegations, seduction without offense to the constitutional rights of the
accused-appellant is not really the stepfather of accused-appellant to due process and to be informed the
complainants Lenny and Jenny because accused-appellant accusation against him. The charge of rape does not include
simple seduction. (PP -vs LOLITO MORENO Y LANCION with simple rape and will be convicted of its qualified form
alias "LOLOY" G.R. No. 115191, Dec. 21, 1999) punishable by death although the attendant circumstance
qualifying the offense and resulting in capital punishment
WHAT ARE THE ELEMENTS OF RAPE? was not alleged in the indictment under which he was
The elements of rape are: (1) that the offender had carnal arraigned. Procedurally, then, while the minority of Renelyn
knowledge of a woman; (2) that such act is accomplished by and her relationship to the accused-appellant were
using force or intimidation; or when the woman is deprived of established during the trial, the accused-appellant can only
reason or otherwise unconscious; or when the woman is be convicted of simple rape because he cannot be punished
under twelve years of age or is demented. for a graver offense that that with which he was charged.
Accordingly, the imposable penalty is reclusion perpetua.
MEANING OF TAKING ADVANTAGE OF SUPERIOR (PP -vs- EDWIN R. DECENA, G.R. No. 131843, May 31,
STRENGTH IN RAPE CASES 2000)
Taking advantage of superior strength means to purposely
use excessive force out of proportion to the means available IMPORTANT CONSIDERATION IN RAPE
to the person attacked. It is abuse of superior numbers or Neither is the absence of spermatozoa in Delia's genitalia
employment of means to weaken the defense. This fatal to the prosecution's case. The presence or absence of
circumstance is always considered whenever there is spermatozoa is immaterial in a prosecution for rape. The
notorious inequality of forces between the victim and the important consideration in rape cases is not the emission of
aggressor, assuming a situation of superiority notoriously semen but the unlawful penetration of the female genitalia by
advantageous for the aggressor deliberately chosen by him the male organ. (PP -vs- RODOLFO BATO alias 'RUDY
in the commission of the crime. To properly appreciate it, it is BATO," G.R. No. 134939, Feb. 16, 2000)
necessary to evaluate not only the physical condition of the
parties and the arms or objects employed but the incidents in WHEN RAPE IS NOT COMMITTED AND SWEETHEART
the total development of the case as well. THEORY GIVEN CREDENCE
Moreover, like the crime of parricide by a husband on his First. Private complainant never objected or showed any
wife, abuse of superior strength Is inherent in rape. It is resistance when accused-appellant allegedly dragged her
generally accepted that under normal circumstances a man forcibly across the pedestrian overpass and brought her to
who commits rape on a woman is physically stronger than an undisclosed place at Quiapo. Although he was holding
the latter. (PP -vs- EDGARDO DE LEON Y SANTOS, G.R. her wrist tightly, she could have easily extricated herself form
No. 128436, Dec. 10, 1999) him on several occasions: (a) while they were inside the bus
bound for Quiapo; (b) when they alighted form the bus and
WHEN TESTIMONY OF VICTIM IS OVERLY roamed the sidestreets of Quiapo; and especially so, (c)
GENERALIZED IN CRIME OF RAPE when they entered the hotel and finally the room where the
Each and every charge of rape is a separate and distinct alleged rape took place. Accused-appellant was unarmed
crime so that each of the sixteen other rapes charged should and his tight grip could not have prevented private
be proven beyond reasonable doubt. The victim's testimony complainant from at least shouting for help. Her demeanor
was overly generalized and lacked specific details on how was simply inconsistent with that of the ordinary Filipina
each of the alleged sixteen rapes was committed. Her bare whose instinct dictates that the summon every ounce of her
statement that she was raped so many times on certain strength and courage to thwart any attempt to besmirch her
weeks is clearly inadequate and grossly insufficient to honor and blemish her purity. True, women react differently
establish the guilt of accused-appellant insofar as the other in similar situations, but it is too unnatural for an intended
sixteen rapes charged are concerned. In People vs. Garcia, rape victim, as in this case, not to make even feeble attempt
this Court succinctly observed that: to free herself despite a myriad of opportunities to do so.
xxx the indefinite testimonial evidence that complainant was Second. The deportment of the private complainant after the
raped every week is decidedly inadequate and grossly alleged rape accentuates the dubiety of her testimony. After
insufficient to establish the guilt of appellant therefor with the the alleged rape, she did not leave immediately but even
required quantum of evidence. So much of such indefinite refused to be separated from her supposed defiler despite
imputations of rape, which are uncorroborated by any other the prodding of the latter. Worse, she went with him to the
evidence fall within this category. (PP -vs- EDMUNDO DE house of his sister and there they slept together. Indeed this
LEON Y JESUS, G.R. No 130985, Dec. 3, 1999 attitude runs counter to logic and common sense. Surely
private complainant would not risk a second molestation and
CONCURRENCE OF MINORITY OF VICTIM AND undergo a reprise of the harrowing experience. To
RELATIONSHIPS IN RAPE MUST BE ALLEGED SO THAT compound matters, it took her four (4) days to inform her
DEATH PENALTY MAYBE IMPOSED parents about this agonizing episode in her life. Truly, her
The concurrence of the minority of the victim and her insouciance is very disturbing, to say the least.
relationship to the offender should be specifically alleged in Finally. The prosecution failed to substantiated any of its
the information conformably with the accused's right to be allegations. Instead, it opted to stand or fall on the
informed of the accusation against him. In this case, uncorroborated and implausible testimony of the private
although the minority of Poblica and her relationship with complainant. It is elementary in our rules of evidence that a
appellant were established by the prosecution beyond doubt, party must prove the affirmative of his allegations. (PP -vs-
the death penalty cannot be imposed because these TOMAS CLAUDIO Y MENIJIE, G.R. No. 133694, Feb. 29,
qualifying circumstances were not specified in the 2000)
information. It would be a denial of the right of the appellant
to be informed of the charges against him and consequently, WHEN TWO AFFIDAVITS ARE EXECUTED BY THE
a denial of due process if he is charged with simple rape and COMPLAINANT IN A RAPE CASE, ONE FOR ATTEMPTED
convicted of its qualified form punishable by death although RAPE AND ANOTHER FOR CONSUMMATED RAPE AND
the attendant circumstances qualifying the offense and ARE INCONSISTENT WITH EACH OTHER, CONVICTION
resulting in capital punishment were not set forth in the CANNOT BE HAD
indictment on which he was arraigned. (PP -vs- CHARITO It is true that affidavits are generally subordinated in
ISUG MAGBANUA, G.R. No. 128888, Dec. 3, 1999) importance to open court declarations. The general rule is
that variance between an extrajudicial sworn statement of
the complainant and here testimony in court does not impair
QUALIFYING CIRCUMSTANCE IN RAPE CASES MUST the complainant's credibility when the said variance does not
BE ALLEGED IN ORDER THAT DEATH PENALTY MAYBE alter the essential fact that the complainant was raped.
IMPOSED Variance as to the time and date of the rape, the number of
This Court has ruled in a long line of cases that the times it was committed or the garments which the accused
circumstance under the amendatory provisions of Section 11 or the complainant wore at the time of the incident do not
of Republic Act 7659, the attendance of any of which generally diminish the complainant's credibility. However, the
mandates the single indivisible penalty of death are in the serious discrepancy between the two sworn statements
nature of qualifying circumstances which cannot be proved executed a day apart by the complainant in this case,
as such unless alleged with particularity in the information bearing on a material fact, is very substantial because it
unlike ordinary aggravating circumstances which affect only pertains to the essential nature of the offense, i.e., whether
the period of the penalty and which may be proven even if the offense was consummated or merely attempted. In
not alleged in the information. It would be a denial of the People vs. Ablaneda, wherein a housewife executed a sworn
right of the accused to be informed of the charge against him statement for attempted rape and later changed the
and consequently, a denial of due process, if he is charged accusation to consummated rape without a rational
explanation, this Court held that the general rule does not the indemnity of the victim shall be in the increased amount
apply when the complainant completely changed the nature of not less than P75,000.00." (PP -vs- ANTONIO MAGAT Y
of her accusation. The contradiction does not concern a LONDONIO, G.R. No. 130026, May 31, 2000)
trivial or inconsequential detail but involves the essential fact
of the consummation of the rape. (PP -vs- ALBERT NATURE OF INTIMIDATION IN CASE OF RAPE
ERNEST WILSON, G.R. No. 135915, Dec. 21, 1999) In People vs. Luzorata, the Court held that intimidation was
addressed to the mind of the victim and therefore subjective,
NATURE OF INCESTUOUS RAPE and its presence could not be tested by any hard-and-fast
Incestuous rape of a daughter by a father has heretofore rule but must be viewed in light of the victim's perception and
been bitterly and vehemently denounced by this Court as judgment at the time of the crime. Thus, when a rape victim
more than just a shameful and shameless crime. Rape in becomes paralyzed with fear, she cannot be expected to
itself is a nauseating crime that deserves the condemnation think and act coherently, her failure to immediately take
of all decent persons who recognize that a woman's advantage of the early opportunity to escape does not
cherished chastity is hers alone to surrender at her own free automatically vitiate the credibility of her account.
will, and whoever violates this norm descends to the level of "Complainant cannot be faulted for not taking any action
the odious beast. But the act becomes doubly repulsive inasmuch as different people react differently to a given type
where the outrage is perpetrated on one's own flesh and of situation, there being no standard form of human
blood for the culprit is further reduced to a level lower than behavioral response when one is confronted with a strange,
the lowly animal and forfeits all respect otherwise due him as startling or frightful experience." (PP -vs- VICENTE BALORA
a human. (PP -vs- MELANDRO NICOLAS Y FAVELLA, G.R. Y DELANTAR, G.R. No. 124976, May 31, 2000)
Nos. 125125-27, Feb. 4, 2000)

LOVE RELATIONSHIP DO NOT RULE OUT RAPE EACH AND EVERY RAPE ALLEGED MUST BE PROVEN
Even assuming ex gratia argumenti that accused-appellant Each and every charge of rape is a separate and distinct
and private complainant were indeed sweethearts as he crime so that each of the sixteen other rapes charged should
claims, this fact alone will not extricate him from his be proven beyond reasonable doubt. The victim's testimony
predicament. The mere assertion of a "love relationship" was overly generalized and lacked specific details on how
would not necessarily rule out the use of force to each of the alleged sixteen rapes was committed. Her bare
consummate the crime. It must be stressed that in rape statement that she was raped so many times on certain
case, the gravamen of the offense is sexual intercourse with weeks is clearly inadequate and grossly insufficient to
a woman against her will or without her consent. Thus, establish the guilt of accused-appellant insofar as the other
granting arguendo that the accused and the victim were sixteen rapes charged are concerned. In People vs. Garcia
really lovers this Court has reiterated time and again that "A this Court succinctly observed that:
sweetheart cannot be forced to have sex against her will. xxx the indefinite testimonial evidence that complainant was
Definitely, a man cannot demand sexual gratification from a raped every week is decidedly inadequate and grossly
fiancée, worse, employ violence upon her on the pretext of insufficient to establish the guilt of appellant therefor with the
love. Love is not a license for lust." (PP -vs- DANTE required quantum of evidence. So much of such indefinite
CEPEDA Y SAPOTALO, G.R. No. 124832, Feb. 1, 2000) imputations of rape, which are uncorroborated by any other
evidence fall within this category. (PP -vs- EDMUNDO DE
PLACES NOTORIOUS FOR HOLD-UPS DONE AT NIGHT - LEON Y JESUS, G.R. No. 130985, Dec. 3, 1999)
IS CONSIDERED AGGRAVATING AS NIGHT TIME
Considering that the place where the crime took place was
"notorious for hold-ups done at night, precisely to maximize AT THE START THERE MUST BE RAPE, BUT
the advantage of darkness," we cannot but agree with the SUBSEQUENT EVENTS MAY BECOME A FACTOR THAT
trial court that nighttime was purposely sought by accused- THE REALTIONSHIP, ALTHOUGH INCESTOUS,
appellants "for the more successful consummation may be CONVICTION FOR RAPE CANNOT BE HAD
perpetrated unmolested or so that they could escape more
thoroughly." (PP -vs- FELIMON ALIPAYO Y TEJADA, ET "Complainant could have been raped the first time accused-
AL., G.R. No. 122979, Feb. 2, 2000) appelant had carnal knowledge of her, when she was 13
years old. This however, is not a prosecution for such rape.
RAPE MAY BE COMMITTED IN ALMOST ALL PLACES When she complained of having been raped in this case,
Appellant considers it quite improbable for rape to be she was already 30 or 31 years old, 17 or 18 years after she
committed at a place within a well-lighted and fairly well- had been allegedly ravished for the first time by her father,
populated neighborhood. This argument does not hold the herein accused-appelant. During the said period of 17 or
water. Rape can be commi9tted even in places where 18 years, neither complainant nor her parents denounced
people congregate, in parks, along the roadside, within accused-appellant despite the fact that he continued to have
school premises, inside a house where there are other sexual relation allegedly without the consent of complainant.
occupants, and even in the same room in the presence of During this period, four children were born to complainant
other members of the family. An overpowering wicked urge and accused-appellant. Complainant and accused-appellant
has been shown not to be deterred by circumstances of time practically cohabited, choosing the baptismal sponsors for
or place. their children, and even inviting friends and relatives to the
feasts. The relationship was known to neighbors. Thus, their
DEATH PENALTY CANNOT BE IMPOSED WHEN relationship might be incestuous, but it was not by reason of
INFORMATION FAILED TO INDICATE THE AGE OF THE force or intimidation. For their part, while in the beginning
VICTIM AND HER CORRECT RELATIONSHIP WITH THE complainant's mother and sisters may have disapproved of
ACCUSED the relationship, in the end, it would appear that
The penalty of death cannot be properly imposed since the subsequently they just turned a blind eye on the whole affair.
indictment has failed to indicate the age of the victim and her Given these facts, we cannot say that on September 19,
correct relationship with appellant, concurrent qualifying 1995 when accused-appellant had sexual intercourse with
circumstances, essential in the imposition of that penalty. complainant, he committed rape. (People v. Villalobos, G.R.
Furthermore, appellant is not a "parent, ascendant, step- 134294, 05/21/2001)
parent, guardian, relative by consanguinity or affinity within
the third civil degree, or the common-law spouse of the THE DELAY AND INITIAL RELUCTANCE OF A RAPE
parent of the victim." The latter's grandmother, Remedios VICTIM TO MAKE PUBLIC THE ASSAULT ON HER
Lustre, herself acknowledges that appellant has just for a VIRTUE IS NEITHER UNKNOWN OR UNCOMMON. AS
time been her common-law husband. (PP -vs- FEDERICO HELD IN LTHE CASE OF PEOPLE VS. MALAGAR
LUSTRE Y ENCINAS, G.R. No. 134562, April 6, 2000) "Vacillation in the filing of complaint by rape victim is not an
uncommon phenomenon. This crime is normally
accompanied by the rapist's threat on the victim's life, and
COMPENSATORY DAMAGES IN CASES OF QUALIFIED the fear can last for quit a while. There is also the natural
RAPE reluctance of a woman to admit her sullied chastity,
With regard to the award of compensatory damages, we accepting thereby all the stigma it leaves, and to then
have rule in People vs. Victor, which was later reaffirmed in expose herself to the morbid curiosity of the public whom
People vs. Prades, that "if the crime of rape is committed or she may likely perceived rightly or wrongly, to be more
effectively qualified by any of the circumstances under which interested in the prurient details of the ravishment than in her
the death penalty is authorized by the present amended law, vindication and the punishment of the rapist. In People vs.
Coloma (222 SCRA 255) we have even considered an 8- While the "sweetheart theory" does not often gain favor with
year delay in reporting the long history of rape by the victim's this Court, such is not always the case if the hard fact is that
father as understandable and so not enough to render the accused and the supposed victim are, in truth, intimately
incredible the complaint of a 13-year old daughter. (PP -vs- related except that, as is usual in most cases, either the
CONRADO CABANA @ RANDY, G.R. No. 127124, May 9, relationship is illicit or the victim's parents are against it. It is
2000) not improbable that in some instances, when the relationship
is uncovered, the alleged victim or her parents for that matter
WHEN THERE IS A SEPARATE CRIME OF RAPE AND would take the risk of instituting a criminal action in the hope
ROBBERY IS COMMITTED that the court would take the cudgels for them than for the
As related by Private Complainant Amy de Guzman, woman to admit her own acts of indiscretion. (PP -vs-
accused-appellant suddenly jumped over the counter, ERWIN AGRESOR, G.R. Nos. 119837-39, Dec. 9, 1999)
strangled her, poked a knife at the left side of her neck,
pulled her towards the kitchen where he forced her to
undress, and gained carnal knowledge of her against her will JUDGES SHOULD NOT BE OVERLY PROTECTIVE OF
and consent. Thereafter, he ordered her to proceed upstairs EVERY WOMAN IN RAPE CASES. THEY MUST LOOK AT
to get some clothes, so he could bring her out, saying he THE CHARGE WITH EXTREME CAUTION AND
was not leaving her alive. At this point, appellant conceived CIRCUSMPECTION
the idea of robbery because, before they could reach the Rape is a very emotional word, and the natural human
upper floor, he suddenly pulled Amy down and started reactions to it are categorical: sympathy for the victim and
mauling her until she lost consciousness; then he freely admiration for her in publicly seeking retribution for her
ransacked the place. Leaving Amy for dead after repeatedly outrageous misfortune, and condemnation of the rapist.
banging her head, first on the wall, then on the toilet bowl, he However, being interpreters of the law and dispensers of
took her bracelet, ring and wristwatch. He then proceeded justice, judges must look at a rape charge without those
upstairs where he took as well the jewelry box containing proclivities and deal and with it with extreme caution and
other valuables belonging to his victim's employer. circumspection. Judges must free themselves of the natural
Under these circumstance, appellant cannot be convicted of tendency to be overprotective of every woman decrying her
the special complex crime of robbery with rape. However, having been sexually abused and demanding punishment for
since it was clearly proven beyond reasonable doubt that he the abuser. While they ought to be cognizant of the anguish
raped Amy de Guzman and thereafter robbed her and Ana and humiliation the rape victim goes through as she
Marinay of valuables totaling P16,000.00, he committed two demands justice, judges should equally bear in mind that
separate offenses -rape with the use of deadly weapon and their responsibility is to render justice based on the law. (PP
simple robbery with force and intimidation against persons. -vs- EDWIN LADRILLO, G.R. No. 124342, Dec. 8, 1999)

CASES WHEREIN THE SCANDAL RESULTING FROM SEXUAL HARASSMENT LAW

RELATIONS OF COMPLAINANT AND ACCUSED IMPELS (RA 7877)
THE COMPLAINANT OR HER RELATIVES TO FILE
COMPLAINT OF RAPE AGAINST THE ACCUSED BUT DID
NOT PROSPER WORK, EDUCATION OR TRAINING-RELATED
Thus in People vs. Lamarroza, a case involving an eighteen- SEXUAL HARASSMENT DEFINED.
year old woman "intellectually weak and gullible," the Court
found that the alleged victim's family was "obviously Work, education or training-related sexual harassment is
scandalized and embarrassed by (the victim) Elena's committed by an employer, employee, manager, supervisor,
'unexplained' pregnancy," prompting them to cry "rape." The agent of the employer, teacher, instructor, professor, coach,
Court acquitted the accused. trainor, or any other person who, having authority, influence
In People vs. Domogoy, private complainant was seen or moral ascendancy over another in a work or training or
having sexual intercourse in the school premises with education environment, demands, requests or otherwise
appellant therein by the latter's co-accused. "It is thus not requires any sexual favor from the other, regardless of
farfetched," the Court held, "for complainant to have whether the demand, request or requirement for submission
instituted the complainant for rape against the three to avoid is accepted by the object of said Act.
being bruited around as a woman of loose morals."
Similarly, in People vs. Castillon, the Court considered the
complainant's agreement to engage in pre-marital sexual WHEN SEXUAL HARASSMENT IS COMMITTED:
intercourse "already a disgrace to her family, what more of
her acquiescence to have sexual intercourse on a stage Work, Education or Training-related Sexual Harassment
near the vicinity where the JS program was being held and Defined
prying eyes and ears abound."
In People vs. Bawar, the complainant was caught in Work, education or training-related sexual harassment is
flagrante by her sister-in-law engaging in sexual intercourse committed by an employer, employee, manager, supervisor,
with the accused, a neighbor. The Court gathered from the agent of the employer, teacher, instructor, professor, coach,
complainant's testimony that "she filed the case because she trainor, or any other person who, having authority, influence
thought it would be better to cry 'rape' and bring suit to or moral ascendancy over another in a work or training or
salvage and redeem her honor, rather than have reputation education environment, demands, requests or otherwise
sullied in the community by being bruited around and requires any sexual favor from the other, regardless of
stigmatized as an adulterous woman." whether the demand, request or requirement for submission
People vs. Godoy also involved an adulterous relationship is accepted by the object of said Act.
between the accused, who was married, and his seventeen-
year old student. In acquitting the accused, the Court held: In work-related or employment environment:
The Court takes judicial cognizance of the fact that in rural
areas in the Philippines, young ladies are strictly required to (1) The sexual favor is made as a condition in the hiring or in
act with circumspection and prudence. Great caution is the employment, re-employment or continued employment of
observed so that their reputations shall remain untainted. said individual, or in granting said individual favorable
Any breath of scandal which brings dishonor to their compensation, terms, conditions, promotions, or privileges;
character humiliates their entire families. It could precisely or the refusal to grant the sexual favor results in limiting,
be that complainant's mother wanted to save face in the segregating or classifying the employee which in any way
community where everybody knows everyone else, and in would discriminate, deprive or diminish employment
an effort to conceal her daughter's indiscretion and escape opportunities or otherwise adversely affect said employee;
the wagging tongues of their small rural community, she had (2) The above acts would impair the employee's rights or
to weave the scenario of this rape drama. privileges under existing labor laws; or
Here, the elopement of a thirteen-year old with her nineteen- (3) The above acts would result in an intimidating, hostile, or
year old second cousin no doubt caused quite a tempest in offensive environment for the employee.
the otherwise serene community of Vintar, Ilocos Norte. That
complainant's parents were against their relationship, as In an education or training environment:
evidenced in one of her letters, makes it more likely that the
charges of rape were instigated to salvage the complainant's (1) Against one who is under the care, custody or
and her family's honor. supervision of the offender;
(2) Against one whose education, training, apprenticeship or the acts charged against him the court shall determine the
tutorship is entrusted to the offender; imposable penalty, including any civil liability chargeable
(3) When the sexual favor is made a condition to the giving against him. However, instead of pronouncing judgment of
of a passing grade, or the granting of honors and conviction, the court shall suspend all further proceedings
scholarships or the payment of a stipend, allowance or other and shall commit such minor to the custody or care of the
benefits, privileges, or considerations; or Department of Social Welfare, or to any training institution
(4) When the sexual advances result in an intimidating, operated by the government, or duly licensed agencies or
hostile or offensive environment for the student, trainee or any other responsible person, until he shall have reached
apprentice. twenty-one years of age or, for a shorter period as the court
may deem proper, after considering the reports and
Any person who directs or induces another to commit any recommendations of the Department of Social Welfare or the
act of sexual harassment as herein defined, or who agency or responsible individual under whose care he has
cooperates in the commission thereof by another without been committed.
which it would not have been committed, shall also be held
liable under this Act. The youthful offender shall be subject to visitation and
supervision by a representative of the Department of Social
Welfare or any duly licensed agency or such other officer as
CHILD AND YOUTH WELFARE CODE the Court may designate subject to such conditions as it may
( PD 603 with Amendments) prescribe.

RELIGIOUS INSTRUCTION PD 1210

ARTICLE 191 OF PD 603 IS HEREBY
The religious education of children in all public and private AMENDED TO READ AS FOLLOWS
schools is a legitimate concern of the Church to which the
students belong. All churches may offer religious instruction "Article 101. Care of Youthful Offender Held for Examination
in public and private elementary and secondary schools, or Trial. - A youthful offender held for physical and mental
subject to the requirements of the Constitution and existing examination or trial or pending appeal, if unable to furnish
laws. bail, shall from the time of his arrest be committed to the
care of the Dept. of Social Services and Development or the
local rehabilitation center or a detention home in the
TERMINATION OF RIGHTS OF PARENTS province or city which shall be responsible for his
appearance in court whenever required: Provided, that in the
When a child shall have been committed to the Department absence of any such center or agency within a reasonable
of Social Welfare or any duly licensed child placement distance from the venue of the trial, the provincial, city and
agency or individual pursuant to an order of the court, his municipal jail shall provide quarters for youthful offenders
parents or guardian shall thereafter exercise no authority separate from other detainees. The court may, in its
over him except upon such conditions as the court may discretion upon recommendation of the Department of Social
impose. Services & Development or other agency or agencies
authorized by the Court, release a youthful offender on
recognizance, to the custody of his parents or other suitable
VIOLATION OF PD 603 BY A CHILD person who shall be responsible for his appearance
whenever required. However, in the case of those whose
Prohibited Acts: cases fall under the exclusive jurisdiction of the Military
Tribunals, they may be committed at any military detention
It shall be unlawful for any child to leave the person or or rehabilitation center.
institution to which he has been judicially or voluntarily
committed or the person under whose custody he has been
placed in accordance with the next preceding article, or for PD 1210
any person to induce him to leave such person or institution, ARTICLE 192 OF PD 603 AS AMENDED IS FURTHER
except in case of grave physical or moral danger, actual or AMENDED TO READ AS FOLLOWS:
imminent, to the child.
Any violation of this article shall be punishable by an "Art. 192. Suspension of sentence and Commitment of
imprisonment of not more than one year or by a fine of not Youthful Offender. - If after hearing the evidence in the
more than two thousand pesos, or both such fine and proper proceedings, the court should find that the youthful
imprisonment at the discretion of the court: Provided, That if offender has committed the acts charged against him, the
the violation is committed by a foreigner, he shall also be court, shall determine the imposable penalty, including any
subject to deportation. civil liability chargeable against him. However, instead of
pronouncing judgment of conviction, the court upon
application of the youthful offender and if it finds that the best
CARE OF YOUTHFUL OFFENDER interest of the public as well as that of the offender will be
HELD FOR EXAMINATION OR TRIAL served thereby, may suspend all further proceedings and
commit such minor to the custody or care of the Department
A youthful offender held for physical and mental examination of Social Services and Development or to any training
or trial or pending appeal, if unable to furnish bail, shall from institution operated by the government or any other
the time of his arrest be committed to the care of the responsible person until he shall have reached twenty one
Department of Social Welfare or the local rehabilitation years of age, or for a shorter period as the court may deem
center or a detention home in the province or city which shall proper, after considering the reports and recommendations
be responsible for his appearance in court whenever of the Department of Social Services and Development or
required: Provided, That in the absence of any such center the government training institution or responsible person
or agency within a reasonable distance from the venue of under whose care he has been committed.
the trial, the provincial, city and municipal jail shall provide
quarters for youthful offenders separate from other Upon receipt of the application of the youthful offender for
detainees. The court may, in its discretion, upon suspension of his sentence, the court may require the
recommendation of the Department of Social Welfare or Department of Social Services and Development to prepare
other agency or agencies authorized by the Court, release a and submit to the court a social case study report over the
youthful offender on recognizance, to the custody of his offender and his family.
parents or other suitable person who shall be responsible for
his appearance whenever required. The Youthful offender shall be subject to visitation and
supervision by a representative of the Department of Social
Services & Development or government training institution
SUSPENSION OF SENTENCE AND COMMITMENT as the court may designate subject to such conditions as it
OF YOUTHFUL OFFENDER may prescribe.

If after hearing the evidence in the proper proceedings, the The benefits of this article shall not apply to a youthful
court should find that the youthful offender has committed offender who has once enjoyed suspension of sentence
under its provisions or to one who is convicted of an offense or which engages in prostitution in addition to the activity for
punishable by death or life imprisonment or to one who is which the license has been issued to said establishment.
convicted for an offense by the Military Tribunals.

ATTEMPT TO COMMIT
PD 1179 CHILD PROSTITUTION
APPEAL
There is an attempt to commit child prostitution under
The order of the court denying an application for suspension Section 5, paragraph (a) hereof when any person who, not
of sentence under the provisions of Article 192 above shall being a relative of a child, is found alone with the said child
not be appealable." inside the room or cubicle of a house, an inn, hotel, motel,
pension house, apartelle or other similar establishments,
vessel, vehicle or any other hidden or secluded area under
RETURN OF THE YOUTHFUL circumstances which would lead a reasonable person to
OFFENDER TO THE COURT believe that the child is about to be exploited in prostitution
and other sexual abuse.
Whenever the youthful offender has been found incorrigible
or has wilfully failed to comply with the conditions of his There is also an attempt to commit child prostitution, under
rehabilitation programs, or should his continued stay in the paragraph (b) of Section 5 hereof when any person is
training institution be inadvisable, he shall be returned to the receiving services from a child in a sauna parlor or bath,
committing court for the pronouncement of judgment. massage clinic, health club and other similar establishments.
A penalty lower by two (2) degrees than that prescribed for
When the youthful offender has reached the age of twenty- the consummated felony under Section 5 hereof shall be
one while in commitment, the court shall determine whether imposed upon the principals of the attempt to commit the
to dismiss the case in accordance with the extent preceding crime of child prostitution under this Act, or, in the proper
article or to pronounce the judgment conviction. In the latter case, under the Revised Penal Code.
case, the convicted offender may apply for probation under
the provisions of Presidential Decree Numbered Nine
Hundred and Sixty-Eight. CHILD TRAFFICKING

In any case covered by this article, the youthful offender Any person who shall engage in trading and dealing with
shall be credited in the service of his sentence with the full children including, but not limited to, the act of buying and
time spent in actual commitment and detention effected selling of a child for money, or for any other consideration, or
under the provisions of this Chapter." barter, shall suffer the penalty of reclusion temporal to
reclusion perpetua. The penalty shall be imposed in its
maximum period when the victim under twelve (12) years of
age.

RA 7610 ATTEMPT TO COMMIT

CHILD ABUSE LAW CHILD TRAFFICKING

CHILD PROSTITUTION AND There is an attempt to commit child trafficking under Section
OTHER SEXUAL ABUSE 7 of this Act:

Children, whether male or female, who for money, profit, or (a) When a child travels alone to a foreign country without
any other consideration or due to the coercion or influence of valid reason therefor and without clearance issued by the
any adult, syndicate or group, indulge in sexual intercourse Department of Social Welfare and Development or written
or lascivious conduct, are deemed to be children exploited in permit or justification from the child's parents or legal
prostitution and other sexual abuse. guardian;

The penalty of reclusion temporal in its medium period to (b) When a person, agency, establishment or child-caring
reclusion perpetua shall be imposed upon the following: institution recruits women or couples to bear a children for
the purpose of child trafficking; or
(a) Those who engage in or promote, facilitate or induce
child prostitution which include, but are not limited to, the (c) When doctor, hospital or clinic official or employee,
following: nurse, midwife, local civil registrar or any other person
simulates birth for the purpose of child trafficking;
(1) Acting as a procurer of a child prostitute;
(2) Inducing a person to be a client of a child prostitute by (d) When a person engages in the act of finding children
means of written or oral advertisements or other similar among low-income families, hospitals, clinics, nurseries,
means; day-care centers, or other child-during institutions who can
(3) Taking advantage of influence or relationship to procure be offered for the purpose of child trafficking.
a child as prostitute;
(4) Threatening or using violence towards a child to engage A penalty lower two (2) degrees than that prescribed for the
him as a prostitute; or consummated felony under Section 7 hereof shall be
(5) Giving monetary consideration goods or other pecuniary imposed upon the principals of the attempt to commit child
benefit to a child with intent to engage such child in trafficking under this Act.
prostitution.

(b) Those who commit the act of sexual intercourse of OBSCENE PUBLICATIONS
lascivious conduct with a child exploited in prostitution or AND INDECENT SHOWS
subject to other sexual abuse; Provided, That when the
victims is under twelve (12) years of age, the perpetrators Any person who shall hire, employ, use, persuade, induce or
shall be prosecuted under Article 335, paragraph 3, for rape coerce a child to perform in obscene exhibitions and
and Article 336 of Act No. 3815, as amended, the Revised indecent shows, whether live or in video, or model in
Penal Code, for rape or lascivious conduct, as the case may obscene publications or pornographic materials or to sell or
be: Provided, That the penalty for lascivious conduct when distribute the said materials shall suffer the penalty of prision
the victim is under twelve (12) years of age shall reclusion mayor in its medium period.
temporal in its medium period; and
If the child used as a performer, subject or seller/distributor
(c) Those who derive profit or advantage therefrom, whether is below twelve (12) years of age, the penalty shall be
as manager or owner of the establishment where the imposed in its maximum period.
prostitution takes place, or of the sauna, disco, bar, resort,
place of entertainment or establishment serving as a cover Any ascendant, guardian, or person entrusted in any
capacity with the care of a child who shall cause and/or allow
such child to be employed or to participate in an obscene concerned to resolve armed conflicts in order to promote the
play, scene, act, movie or show or in any other acts covered goal of children as zones of peace. To attain this objective,
by this section shall suffer the penalty of prision mayor in its the following policies shall be observed.
medium period.
(a) Children shall not be the object of attack and shall be
entitled to special respect. They shall be protected from any
OTHER ACTS OF NEGLECT, ABUSE, form of threat, assault, torture or other cruel, inhumane or
CRUELTY OR EXPLOITATION AND degrading treatment;
OTHER CONDITIONS PREJUDICIAL
TO THE CHILD’S DEVELOPMENT (b) Children shall not be recruited to become members of the
Armed Forces of the Philippines of its civilian units or other
(a) Any person who shall commit any other acts of child armed groups, nor be allowed to take part in the fighting, or
abuse, cruelty or exploitation or to be responsible for other used as guides, couriers, or spies;
conditions prejudicial to the child's development including
those covered by Article 59 of Presidential Decree No. 603, (c) Delivery of basic social services such as education,
as amended, but not covered by the Revised Penal Code, as primary health and emergency relief services shall be kept
amended, shall suffer the penalty of prision mayor in its unhampered;
minimum period.
(d) The safety and protection of those who provide services
(b) Any person who shall keep or have in his company a including those involved in fact-finding missions from both
minor, twelve (12) years or under or who in ten (10) years or government and non-government institutions shall be
more his junior in any public or private place, hotel, motel, ensured. They shall not be subjected to undue harassment
beer joint, discotheque, cabaret, pension house, sauna or in the performance of their work;
massage parlor, beach and/or other tourist resort or similar
places shall suffer the penalty of prision mayor in its (e) Public infrastructure such as schools, hospitals and rural
maximum period and a fine of not less than Fifty thousand health units shall not be utilized for military purposes such as
pesos (P50,000): Provided, That this provision shall not command posts, barracks, detachments, and supply depots;
apply to any person who is related within the fourth degree and
of consanguinity or affinity or any bond recognized by law,
local custom and tradition or acts in the performance of a (f) All appropriate steps shall be taken to facilitate the
social, moral or legal duty. reunion of families temporarily separated due to armed
conflict.
(c) Any person who shall induce, deliver or offer a minor to
any one prohibited by this Act to keep or have in his RIGHTS OF CHILDREN ARRESTED
company a minor as provided in the preceding paragraph FOR REASONS RELATED TO
shall suffer the penalty of prision mayor in its medium period ARMED CONFLICT
and a fine of not less than Forty thousand pesos (P40,000);
Provided, however, That should the perpetrator be an Any child who has been arrested for reasons related to
ascendant, stepparent or guardian of the minor, the penalty armed conflict, either as combatant, courier, guide or spy is
to be imposed shall be prision mayor in its maximum period, entitled to the following units;
a fine of not less than Fifty thousand pesos (P50,000), and
the loss of parental authority over the minor. (a) Separate detention from adults except where families are
accommodated as family units;
(d) Any person, owner, manager or one entrusted with the (b) Immediate free legal assistance;
operation of may public or private place of accommodation, (c) Immediate notice of such arrest to the parents or
whether for occupancy, food, drink or otherwise, including guardians of the child; and
residential places, who allows any person to take along with (d) Release of the child on recognizance within twenty-four
him to such place or places any minor herein described shall (24) hours to the custody of the Department of Social
be imposed a penalty of prision mayor in its medium period Welfare and Development or any responsible member of the
and a fine of not less than Fifty thousand pesos (P50,000), community as determined by the court.
and the loss of the license to operate such a place or
establishment. If after hearing the evidence in the proper proceedings the
court should find that the aforesaid child committed the acts
(e) Any person who shall use, coerce, force or intimidate a charged against him, the court shall determine the
street child or any other child to : imposable penalty, including any civil liability chargeable
against him. However, instead of pronouncing judgment of
(1) Beg or use begging as a means of living; conviction, the court shall suspend all further proceedings
(2) Act as conduit or middlemen in drug trafficking or and shall commit such child to the custody or care of the
pushing; or Department of Social Welfare and Development or to any
(3) Conduct any illegal activities, shall suffer the penalty of training institution operated by the Government, or duly-
prision correccional in its medium period to reclusion licensed agencies or any other responsible person, until he
perpetua. has had reached eighteen (18) years of age or, for a shorter
period as the court may deem proper, after considering the
For purposes of this Act, the penalty for the commission of reports and recommendations of the Department of Social
acts punishable under Articles 248, 249, 262, paragraph 2, Welfare and Development or the agency or responsible
and 263, paragraph 1 of Act No. 3815, as amended, the individual under whose care he has been committed.
Revised Penal Code, for the crimes of murder, homicide,
other intentional mutilation, and serious physical injuries, The aforesaid child shall subject to visitation and supervision
respectively, shall be reclusion perpetua when the victim is Development or any duly-licensed agency such other officer
under twelve (12) years of age. The penalty for the as the court may designate subject to such conditions as it
commission of acts punishable under Article 337, 339, 340 may prescribe.
and 341 of Act No. 3815, as amended, the Revised Penal The aforesaid child whose sentence is suspended can
Code, for the crimes of qualified seduction, acts of appeal from the order of the court in the same manner as
lasciviousness with the consent of the offended party, appeals in criminal cases.
corruption of minors, and white slave trade, respectively,
shall be one (1) degree higher than that imposed by law CONFIDENTIALITY
when the victim is under twelve (12) years age.
The victim of the acts committed under this section shall be At the instance of the offended party, his name may be
entrusted to the care of the department of Social Welfare withheld from the public until the court acquires jurisdiction
and Development. over the case.

It shall be unlawful for any editor, publisher, and reporter or

CHILDREN AS ZONES OF PEACE columnist in case of printed materials, announcer or
producer in case of television and radio broadcasting,
Children are hereby declared as Zones of Peace. It shall be producer and director of the film in case of the movie
the responsibility of the State and all other sectors industry, to cause undue and sensationalized publicity of any
case of violation of this Act which results in the moral and order his final discharge." It is therefore clear that in
degradation and suffering of the offended party. cases where the DSWD recommends the discharge of a
youthful offender, it is the trial court before whom the report
PEDOPHILIA IS NOT INSANITY and recommendation is subject to judicial review.
Recommendation alone is not sufficient to warrant the
When accused-appellant was committed to the National release of a youthful offender. In reviewing the DSWD's
Center for Mental Health, he was not diagnosed as insane recommendation, the trial judge must not base his judgment
but was suffering from pedophilia. Thus, there is no doubt in on mere conclusions but should seek out concrete, material
our mind that he was sane during his two-year confinement and relevant facts to confirm that the youthful offender has
in the center, pedophilia being dissimilar to insanity. indeed been reformed and is ready to re-enter society as a
productive and law-abiding citizen. Caution, however, is
given to the trial court. To begin with, the youthful offender is
RA 7658 not to be tried anew for the same act for which he was
charged. The inquiry is not a criminal prosecution but is
EMPLOYMENT OF CHILDREN rather limited to the determination of the offender's proper
education and rehabilitation during his commitment in the
Children below fifteen (15) years of age shall not be Training Center and his moral and social fitness to re-join the
employed except: community. (Pp. V. Galit; GR 97432, 3/1/94)

1) When a child works directly under the sole responsibility

of his parents or legal guardian and where only members of SUSPENSION OF SENTENCE NOT APPLICABLE
the employer's family are employed: Provided, however, IF PENALTY IS RECLUSION PERPETUA,
That his employment neither endangers his life, safety, LIFE IMPRISONMENT OR DEATH
health and morals, nor impairs his normal development;
Provided, further, That the parent or legal guardian shall As aforesaid, however, accused Ricky Galit and Raquel
provide the said minor child with the prescribed primary Tagalog did not appeal from the judgment of the trial court.
and/or secondary education; or Neither did the People question the suspension of their
sentence. The benefits of suspension of sentence are not
2) Where a child's employment or participation in public available where the youthful offender has been convicted of
entertainment or information through cinema, theater, radio an offense punishable by life imprisonment or death. The
or television is essential: Provided, The employment contract last paragraph of section 2 of Presidential Decree No. 1210,
is concluded by the child's parents or legal guardian, with the which amended certain provisions of P.D. 603, provides:
express agreement of the child concerned, if possible, and
the approval of the Department of Labor and Employment: "The benefits of this article shall not apply to a youthful
and Provided, That the following requirements in all offender who has once enjoyed suspension of sentence
instances are strictly complied with: under its provisions or to one who is convicted of an offense
punishable by death or life imprisonment or to one who is
(a) The employer shall ensure the protection, health, safety, convicted for an offense by the Military Tribunals." (Par. 4,
morals and normal development of the child; Sec. 2, P.D. No. 1179, as amended by P.D. No. 1210;
(b) The employer shall institute measures to prevent the emphasis supplied)
child's exploitation or discrimination taking into account the (Pp. v. Galit, supra.)
system and level of remuneration, and the duration and
arrangement of working time; and
(c) The employer shall formulate and implement, subject to
the approval and supervision of competent authorities, a
continuing program for training and skills acquisition of the
requirements.
YOUTHFUL OFFENDER, TO BE CRIMINALLY LIABLE,
In the above exceptional cases where any such child may be ACCUSED, A 13 YEAR OLD, MUST ACT WITH
employed, the employer shall first secure, before engaging DISCERNMENT
such child, a work permit from the Department of Labor and
Employment which shall ensure observance of the child.
There is a further obstacle that stands in the way of
The Department of Labor and Employment shall promulgate Estorque's conviction. While it has been proven that he was
rules and regulations necessary for the effective only thirteen years old at the time of the incident, there are
implementation of this Section." no allegations in both informations that Estorque had acted
with discernment. And even if we are to consider the
allegations that he had committed the imputed acts "with
IF MINOR DO NOT APPLY FOR intent to kill" as sufficient compliance — as we have in the
SUSPENSION OF SENTENCE IT IS past — he would still not be held liable as no proof was
DEEMED WAIVED. THE COURT CANNOT offered during trial that he had so acted with discernment.
MOTU PROPIO GIVE HIM THE BENEFITS Accordingly, even if he was indeed a co-conspirator or an
OF ART. 192 accessory, he would still be exempt from criminal liability.
(Pp. V. Cordova; GR 83373-74, 7/5/93)
The record, unfortunately for accused-appellant Buena, does
not show that he filed with the trial court an application for
suspension of sentence so as to put into operation the EVERY ACCUSED IS PRESUMED TO BE SANE AT THE
benevolent provisions of Presidential Decree No. 603. The TIME OF COMMISSION OF THE CRIME
Court, therefore, has no other choice but to deny him this
privilege.
The law presumes all acts to be voluntary, and that it is
improper to presume that acts were done unconsciously.
DISCHARGE; REPORT AND ECOMMENDATION The quantum of evidence required to overthrow the
OF THE DEPARTMENT OF SOCIAL WELFARE, presumption of sanity is proof beyond reasonable doubt.
SUBJECT TO JUDICIAL REVIEW Since insanity is in the nature of a confession and
avoidance, it must be proven beyond reasonable doubt.
It is not the responsibility of this Court to order the release of Moreover, an accused is presumed to have been sane at the
accused Ricky Galit without the benefit of a review of the time of the commission of the crime in the absence of
recommendation of the Department of Social Welfare by the positive evidence to show that he had lost his reason or was
trial court. Art 196 of PD 603 provides: "Art. 196. Dismissal demented prior to or during the perpetration of the crime.
of the case. — If it is shown to the satisfaction of the court (Pp. v. Cordova, supra.)
that the youthful offender whose sentence has been
suspended, has behaved properly and has shown his
capability to be a useful member of the community, even FAILURE OF DEFENSE TO ASK FOR
before reaching the age of majority, upon recommendation SUSPENSION OF ARRAIGNMENT
of the Department of Social Welfare, it shall dismiss the case NEGATES INSANITY
Appellant Eduardo Cordova did not even ask for the REPUBLIC ACT NO. 8484
suspension of his arraignment on the ground that he was (The Access Device Regulation)
suffering from insanity. Paragraph (a), Section 12, Rule 116
of the Revised Rules of Court provides that the arraignment
of an accused who appears to be suffering from an unsound An act regulating the issuance and use of access devices,
mental condition which effectively renders him unable to fully prohibiting fraudulent acts committed relative thereto,
understand the charge against him and to plead intelligently providing penalties and for other purposes.
thereto, shall be suspended. In the case at bar, Eduardo
Cordova even took the witness stand to testify. (Pp. V. The recent advances in modern technology have led to the
Cordova, supra.) extensive use of certain devices in commercial transactions,
prompting the State to regulate the same. hence, on
February 3, 1998, Congress enacted Republic Act Number
CHILD & YOUTH WELFARE CODE, 8484, otherwise known as The Access Devices Regulation
NOT APPLICABLE TO DEATH OR Act of 1998.
RECLUSION PERPETUA SENTENCE
Termed as "access devices" by RA No. 8484, any card,
The Child and Youth Welfare Code does not apply to those plate, code, account number, electronic serial number,
convicted of offenses punishable by death, or reclusion personal identification number, or other telecommunication
perpetua (Presidential Decree No. 603, as amended by service, equipment, or instrumental identifier, or other means
Presidential Decree N. 603, as amended by Presidential of account access t hat can be used to obtain money, good,
Decree Nos. 1179 and 1210). The fact is Bolioc is now services or any other thing of value or to initiate transfer of
twenty-three years old. He is not entitled to a suspended funds (other than transfer originated solely by paper
sentence. He is entitled to a two-degree reduction of the instrument) is now subject to regulation. The issuance and
penalty (Art. 68, RPC). (Pp. V. Mendez; GR L-48131; use of access devices are ought to regulate in order to
5/30/83) protect the rights and define the liabilities of parties in
commercial transactions involving them.

Essentially, the law imposes duties both to the access

SUSPENSION OF SENTENCE; CANNOT device issuer and holder, and penalize certain acts deemed
BE AVAILED OF WHERE OFFENDER IS ALREADY OVER unlawful for being detrimental to either the issuer or holder,
21 YEARS OLD AT THE or both.
TIME OF PROMULGATION OF HIS SENTENCE
The law mandates an access device issuer, or "card issuer,"
It is true that Venancio Villanueva was a youthful offender as to disclose either in writing or orally in any application or
defined by Art. 189 because he was under 21 years of age solicitation to open a credit card account the following: 1)
when he committed the offense on February 22, 1974. annual percentage rate; 2) annual and other fees; 3) and
However, when he was sentenced on July 30, 1975, he was balance calculation method; 4) cash advance fee; and 5))
over 21 years old and under the terms of Art. 192 (as well as over the limit fee.
Art. 197) he was no longer entitled to suspension of
sentence. (Villanueva v. CFI; GR L-45798, 12/15/82) Moreover, the computation used in order to arrive at such
charges and fees required, to the extent practicable, to be
explained in detail and a clear illustration of the manner by
which it is made to apply is also necessary.
WHEN PRESIDENTIAL DECREE NO. 603
MAY BE GIVEN RETROACTIVE EFFECT Nonetheless, there are certain exceptions for the above
requirement of disclosure not to apply. This is when
Where P.D. 603 is more favorable to the accused in that the application or solicitation is made through telephone,
sentence against them may he suspended, said Decree may provided that the issuer does not impose any annual fee,
be given retroactive effect, not only with the end in view of and fee in connection with telephone solicitation unless the
giving force and effect to the laudable policies for which the customer signifies acceptance by using the card, and that a
P.D. otherwise known as the Child and Youth Welfare Code clear disclosure of the information enumerated in the
was promulgated, hut also in the light of the provisions of preceding paragraph is made in writing within thirty (30) after
Article 22 of the Revised Penal Code. (People v. Garcia; GR the consumer requests for the card, but in no event later
L-45280-81, 6/11/81) than the date of the delivery of the card, and that the
consumer is not obligated to accept the card or account and
the consumer will not be obligated to pay any fees or
PRESIDENTIAL DECREE NO. 603; charges disclosed unless the consumer accepts the card or
ALTERNATIVE COURSES OF ACTION account by using the card.
OF THE COURT WHEN YOUTHFUL
OFFENDER IS RETURNED AFTER Failure on the part of the issuer to fulfill the above
REACHING THE AGE OF MAJORITY requirements will result in the suspension or cancellation of
its authority to issue credit cards, after due notice and
The trial court has two alternative courses of action with hearing, by the Banko Sentral ng Pilipinas, the Securities
respect to a youthful offender whose sentence it had and Exchange Commission and such other government
suspended and who is returned to the court upon his agencies.
reaching the age of majority. These are: (1) to dismiss the
case and order the final discharge of said offender; or (2) to In sum therefore, the above omission is made punishable if
pronounce the judgment of conviction. In plain and simple the following elements occur. One, there is an application or
language, it is either dismissal or sentence. (Pp. V. Garcia; solicitation. Second, such application or solicitation should
supra.) include the information required by law. and third, failure on
the part of the issuer to disclose such information.

CIVIL LIABILITY OF YOUTHFUL In one case (Ermitano v. GR No. 127246, April 21, 1999),
OFFENDER, DEFINED the Supreme Court had the occasion to rule on the validity of
contracts involving credit cards. The credit cards holder
The civil liability for damages referred to is apparently that contended that the credit card company should be blamed
obligation created by or arising from the crime, otherwise for the charges the same being unwarranted by the contract.
known as ex delicto the imposition of which is mandated by As stipulated, once a lost card has been reported, purchases
Articles 100, 104(3), 107 and 345(1) of the Revised Penal made thereafter should not accrue on the part of the holder.
Code, (People vs. Peña, L-36434, December 20, 1977, 80
SCRA 589, 599) and is based upon a finding of the guilt of The Court said notwithstanding the fact that the contract of
the accused. (Pp. V. Garcia, supra.) the parties is a contract of adhesion the same is valid.
However, if the same should include terms difficult to
interpret as to hide the true intent to the detriment of the
holder, holding it void requires no hesitation. Thus, contracts
which provide for ambiguous terms of payment, imposition of
charges and fees may be held void invoking the principle of real names. The Citibank approved the applications and the
the contract of adhesion. credit cards were delivered to them for use. However, this
case involves an illegal dismissal case where a Citibank
Clearly, in this case decided in 1999, the Court was employee was found guilty of gross negligence for effecting
concerned about an access device issuer's vulnerability to the delivery of the credit cards. Her dismissal was affirmed in
abuse the provisions of the contract. It is quite surprising, this case.
however, that the Court did not make reference to RA No.
8484 to think that it was already in effect when the resolution Insofar as access device issuers are concerned, Eermitano
was promulgated. v. C.A., may be a case in point. The credit card holder lost
his credit card which he immediately reported to the card
Nonetheless, in American Express International Co., Inc. vs. issuer. The contract stipulated that in case of lost, the same
IAC (GR NO. 70766, November 9, 1988) Supreme Court should be reported immediately, otherwise purchases made
turned down the argument of private respondent grounded shall be charged to the holder. In this case, despite the
on the adhesion principle saying indeed, in a contract of prompt reporting of the holder, the issuer still charged the
adhesion the maker of the contract has all the advantages, purchases against the former. The Court in this case held
however, the one to whom it is offered has the absolute the issuer in breach of the contract.
prerogative to accept or deny the same.
The penalties provided for by RA 8484 are imprisonment
On the other hand, an access device holder may be and fine. Imprisonment is from six (6) years to ten (10) years
penalized when he or she fraudulently applied for such and fine ranges from ten thousand pesos (10,000.00) or
device. An access device fraudulently applied for means any twice the value of the offense, whichever is higher.
access device that was applied for or issued on account of
the use of falsified document, false information, fictitious The penalties are increased in case the offender has a
identities and addresses, or any form of false pretense or similar previous conviction, meaning if he was previously
misrepresentation. Thus, the use, trafficking in, possession, found violating RA 8484. In which case, the accused shall
and inducing, enticing or in any manner allowing one to use suffer imprisonment of not less than twelve (12) years and
access device fraudulently applied for are considered not more than twenty (20) years.
unlawful.
The two other stages of felony, as defined by the Revised
The element of fraud is indispensable for this provision of RA Penal Code is also made punishable. Thus, attempted and
8484 to apply. It is a condition sine qua non before one may frustrated are meted out with the penalties of imprisonment
be charged with the defined offense. and fine albeit only in fractions of the above penalties.

Thus, the law provides for presumptions of Intent to defraud R.A. 8484 may seem to favor the issuer. A credit card
on the basis of mere possession, control or custody of: a) an company may only be meted out the penalty of cancellation
access device without lawful authority; b) a counterfeit or suspension, which may be considered as mere
access device; any device making or altering equipment; c) administrative sanctions. In fact, it is not the courts which
an access device or medium on which an access device is impose such sanctions but administrative agencies such as
written not in the ordinary course of the possessor's the Bangko Sentral and the Securities and Exchange
business; or d) any genuine access device, not in the name Commission.
of the possessor.
On the other hand, a holder or mere possessor of a
A card holder who abandons or surreptitiously leaves the counterfeit fraudulently applied for access device may be
place of employment, business or residence stated in his convicted and be made to suffer imprisonment and fine.
application for credit card, without informing the credit card
company of the place where he could actually be found, if at
the time of such abandonment or surreptitious leaving, the
outstanding and unpaid balance is past due for at least DANGEROUS DRUG ACT OF 2002
ninety (90) days and is more than ten thousand pesos (Republic Acts No. 9165)
(P10,000.00), shall be prima facie presumed to have used
his credit card with intent to defraud.
DEFINITIONS OF TERMS

At first glance, the above presumptions, when applied in real Chemical Diversion – the sale, distribution, supply or
cases, may suffer from constitutional infirmities. The transport of legitimately imported, in-transit, manufactured or
constitution provides that a person shall not be held to procured controlled precursors and essential chemicals, in
answer to a criminal offense without due process of law. it diluted, mixtures or in concentrated form, to any person or
may be argued that such presumptions are rebuttable ones. entity engaged in the manufacture of any dangerous drug,
However, the danger lies in the shifting of the burden of and shall include packaging, repackaging, labeling,
proof from the prosecution to the defense. relabeling or concealment of such transaction through fraud,
destruction of documents, fraudulent use of permits,
The law provides for sixteen (16) prohibited acts which refer misdeclaration, use of front companies or mail fraud.
to the production, use, possession of or trafficking in
unauthorized or counterfeit access devices. It also includes Controlled Delivery – The investigative technique of allowing
acts deemed fraudulent that increase the amount involved in an unlawful or suspect consignment of any dangerous drug
commercial transactions using access devices. Obtaining and/or controlled precursor and essential chemical,
money or anything of value through the use of an access equipment or paraphernalia, or property believed to be
device with intent to defraud or gain, and fleeing thereafter. derived directly or indirectly from any offense, to pass into,
through or out of the country under the supervision of any
In the final analysis, the law basically seeks to address the unauthorized officer, with a view to gathering evidence to
issue of fraud in the issuance and use of access devices, identify any person involved in any dangerous drug related
especially credit cards. Fraud may be committed by the offense, or to facilitate prosecution of that offense.
issuer by making false or vague information in the
application or solicitation to open credit card accounts. The Controlled Precursor and Essential Chemicals – Includes
applicant or holder, on the other hand, fraudulently those listed in Tables I and II of the 1988 UN Convention
misrepresents himself by giving wrong identity, false Against Illicit Traffic in Narcotic Drugs and Psychotropic
profession or employment, or bloated income. Substances as enumerated in the attached annex, which is
an integral part of this Act.
Take the case for instance of Citibank v. Gatchalian (GR No.
111222, January 18, 1995) which shows how credit card Drug Dependence – As based on the World Health
applicants through false representation were able to amass Organization definition, it is a cluster of physiological,
in simple terms P790,000.00 from petitioner. behavioral and cognitive phenomena of variable intensity, in
which the use of psychoactive drug takes on a high priority
In this case, two employees of the Asian-Pacific thereby involving, among others, a strong desire or a sense
Broadcasting Co,. Inc. (ABCI) applied for nineteen (19( credit of compulsion to take the substance and the difficulties in
cards with Citibank using different names other than their
controlling substance-taking behavior in terms of its onset, involving his/her official status intended to facilitate the
termination, or levels of use. unlawful entry.
4.) Organizing, managing, or acting as a “financier” of any of
Drug Syndicate – Any organized group of two (2) or more the illegal activities penalized under Section 4 of the Law.
persons forming or joining together with the intention of 5.) Acting as “protector/coddler” of anyone who violates
committing any offense prescribed under this Act. Section 4 of the Law.
6.) Sale, trading, administration, dispensation, distribution
Illegal Trafficking – The illegal cultivation, culture, delivery, and transportation of dangerous drugs, regardless of
administration, dispensation, manufacture, sale, trading, quantity and purity involved, or acting as a broker in any of
transportation, distribution, importation, exportation, and such transactions.
possession of any dangerous drug and/or controlled 7.) Sale, trading, administration, dispensation, distribution
precursor and essential chemical. and transportation of any controlled precursor and essential
chemical, or acting as a broker in such transaction.
Protector/Coddler – Any person who knowingly and willfully 8.) Use by drug pushers of minors or mentally incapacitated
consents to the unlawful acts provided for in this Act and individuals as runners, couriers and messengers, or in any
uses his/her influence, power or position in shielding, other capacity directly connected to the trade of dangerous
harboring, screening or facilitating the escape of any person drugs and/or controlled precursor and chemicals.
he/she knows, or has reasonable ground to believe on or 9.) Acting as a protector/coddler of any violator of the
suspects, has violated the provision of this Act in order to provision of Sec. 5.
prevent the arrest, prosecution and conviction of the violator. 10.) Maintenance of a Den, Dive or Resort where any
dangerous drug is used or sold in any form.
Pusher – Any person who sells, trades, administers, 11.) Maintenance of a Den, Dive or Resort where any
dispenses, delivers, or gives away to another, on any terms controlled precursors and essential chemical is used or sold
whatsoever, or distributes, dispatches in transit or transports in any form.
dangerous drugs or who acts as a broker in any of such 12.) Acting as “protector/coddler” of a maintainer of a Den,
transaction, in violation of this Act. Dive, or Resort
13.) Employees and Visitors of a Den, Drive, or Resort
Planting of evidence – the willful act by any person of 14.) Manufacture of Dangerous Drugs and/or Controlled
maliciously and surreptitiously inserting, placing, adding or Precursors and Essential Chemicals
attaching directly or indirectly, through any overt or covert 15.) Acting as a protector or coddler of any violator of Sec. 8
act whatever quantity of any dangerous drug and/or 16.) Illegal Chemical Diversion of Controlled Precursor and
controlled precursor and essential chemical in the person, Essential Chemicals.
house, effects or in the immediate vicinity of an innocent 17.) Manufacture or Delivery of Equipment, Instrument,
individual for the purpose of implicating, incriminating, or Apparatus, and other Paraphernalia for Dangerous Drugs
imputing the commission of any violation of this Act. and/or Controlled Precursors and Essential Chemicals.
18.) Possession of Drug.
19.) Possession of equipment, Instrument, Apparatus, and
What are the significant Provisions in R.A. 6425 Other Paraphernalia for Dangerous Drugs
that have been changed? 20.) Possession of Dangerous Drugs During Parties, Social
Gathering or Meetings.
1. Under this Act there is no more distinction between 21.) Possession of Equipment, Instrument, Apparatus and
prohibited drug and regulated drugs and/or controlled Other Paraphernalia for Dangerous Drugs during Parties,
precursors and essential chemicals enumerated in Tables I Social Gathering or Meetings.
and II of the 1988 UN Convention against Illicit Traffic in 22.) Use of Dangerous Drugs.
Narcotic Drugs and Psychotropic Substances. 23.) Cultivation or Culture of Plants Classified as Dangerous
Drugs or are Sources thereof.
2. The penalties provided by R.A. 7659 was changed , 24.) Maintenance and keeping of Original Records of
adopting partially the penalties in R.A. 6425. Transaction on Dangerous Drugs and/or Controlled
Precursors and Essential Chemicals
3. In planting evidence any person now maybe held liable. 25. Unnecessary Prescription of Dangerous Drugs
Before, only law enforcement agents. 26.) Unlawful Prescription of Dangerous Drugs
27.) Attempt or Conspiracy to commit the following unlawful
4. the provisions of the Revised Penal Code have no acts: (a) Importation of any dangerous drugs and/or
suppletory effect except for minors who may be sentenced to controlled precursor and essential chemical; (b) Sale,
reclusion perpatua. trading, administration, dispensation, delivery, distribution,
and transportation of any dangerous drug and/or controlled
precursor and essential chemical; (c) Maintenance of a den,
What are the new kinds of drugs dive, or resort where dangerous drugs is used in any form;
that are included in R.A. 9165? (d) Manufacture of any dangerous drug and/or controlled
precursor and essential chemical; and (e) Cultivation or
Methylenedioxymethamphetamine (MDMA) or commonly culture of plants which are sources of dangerous drugs.
known as “Ecstasy”, or its any other name which refers to
the drugs having such chemical composition, including any
of its isomers or derivatives in any form.
Paramethoxyamphetamine (PMA), Trimethoxyamphetamine CRIMINAL LIABILITY OF ALIENS, OFFICERS
(TMA), lysergic acid diethylamine (LSD), gamma OF PARTNERSHIP, CORPORATION, ASSOCIATIONS, OR
hydroxybutyrate (GHB) and those similarly designed or OTHER JURIDIUCAL ENTITIES
newly introduced drugs and their derivatives, without having
any therapeutic value or if the quantity possessed is far 1. In addition to the penalties prescribed in the unlawful act
beyond therapeutic requirement, as determined and committed, any alien who violates such provisions of the
promulgated by the Board in accordance to Section 93, Art Law, after service of sentences, shall be deported
XI of this Act of R.A. 9165. immediately without further proceedings, unless the penalty
is death.
2. In case the violation of the Law is committed by a
ACTS PUNISHABLE UNDER THE LAW partnership, corporation, association or any juridical entity,
the partner, president, director, manager, trustee, estate
1.) Importation of any dangerous drug, regardless of the administrator, or officer who consents to or knowingly
quantity and purity involved, including any and all species of tolerates such violation shall be held criminally liable as co-
opium poppy or any part thereof or substances derived principal.
thereform even for floral, decorative and culinary purposes. 3. The penalty provided for the offense under the Law shall
2.) Importation of any controlled precursor and essential be imposed upon the partner, president, director, manager,
chemical. trustee, estate administrator, or officer who knowingly
3.) Importation of any dangerous drug and/or controlled authorizes, tolerates, or consents to the use of a vehicle,
precursor and essential chemical through the use of a vessel, aircraft, equipment or other facility as an instrument
diplomatic passport, diplomatic facilities or any other means in the importation, sale, trading, administration, dispensation,
delivery, distribution, transportation, or manufacture of
dangerous drugs, or chemical diversion, if such vehicle, 1.) If the importation or bringing into the Philippines of any
aircraft, equipment or other instrument is owned by or under dangerous drugs and/or controlled precursor and essential
the control or supervision of the partnership, corporation, chemicals was done through the use of diplomatic passport,
association or juridical entity to which they are affiliated. diplomatic facilities or any other means involving his/her
official status intended to facilitate the unlawful entry of the
same
CRIMINAL LIABLITY OF PUBLIC OFFICERS OR
EMPLOYEES 2.) The sale trading, administration, dispensation, delivery,
distribution or transportation of any dangerous drug and/or
1. Any public officer or employee who (1) misappropriates, controlled precursor and essential chemical transpired within
(2) misapplies or (3) fails to account for confiscated, seized one hundred (100) meters from the school
or surrendered drugs, plant sources of dangerous drugs,
controlled precursors and essential chemicals, 3.) The drug pusher use minors or mentally incapacitated
instruments/paraphernalia and/or laboratory equipment individuals as runners, couriers and messenger, or in any
including the proceeds or properties obtained from the other capacity directly connected to the dangerous drug
unlawful acts punished under the Law shall be penalized and/or controlled precursor and essential chemical trade.
with life imprisonment to death and a fine ranging
fromP500,000.00 to P10,000,000.00 and with perpetual 4.) The victim of the offense is a minor or mentally
disqualification from any public office (Sec.27). incapacitated individual, or should a dangerous drug and/or
controlled precursor and essential chemicals involved `in any
2. Any government official or employee found guilty of the offense be the proximate cause of death of a victim.
unlawful acts punished under the Law shall be imposed the
maximum penalties provided for the offense and shall be 5.) In case the clandestine laboratory is undertaken or
absolutely perpetually disqualified from holding any public established under the following circumstances:
office. (Sec. 28).
a.) Any phase of the manufacturing process was conducted
in the presence or with the help of minor/s
b.) Any phase of manufacturing process was established or
CRIMINAL LIABILITY OF ELECTIVE LOCAL OR undertaken within one hundred (100) meters of a residential,
NATIONAL OFFICIALS WHO BENEFITS FROM DRUG business, church or school premises.
TRAFFICKING – whether or not he know that it came from c.) Any clandestine laboratory was secured or protected with
drugs, but the one who gave must be convicted first by final booby traps.
judgment. d.) Any clandestine laboratory was concealed with legitimate
business operations.
1. Any elective local or national official found to have (1) e.) Any employment of a practitioner, chemical engineer,
benefited from the proceeds of the trafficking of dangerous public official or foreigner.
drugs as prescribed in the Law, or has (2) received any
financial or material contributions or donations from natural 6.) In case the person uses a minor or a mentally
or juridical persons found guilty of trafficking dangerous drug incapacitated individual to deliver equipment, instrument,
as prescribed in the law, shall be removed from office and apparatus and other paraphernalia use for dangerous drugs.
perpetually disqualified from holding any elective or
appointive positions in the government, its divisions, 7.) Any person found possessing any dangerous drug during
subdivisions, and intermediaries, including government- a party, or a social gathering or meeting, or in the proximate
owned or controlled corporations (\sec.27) company of at least two (2) person.

8.) Possession or having under his/her control any

CRIMINALLIABILITY OF PRIVATE INDIVIDUAL equipment, instrument, apparatus and other paraphernalia fit
of intended for smoking, consuming, administering, injecting,
2. Any person found guilty of “planting” any dangerous drug ingesting or introducing any dangerous drug into the body,
and/or controlled precursor and essential chemical, during parties, social gatherings or meetings, or in the
regardless of quantity and purity, shall be punished with proximate company of at least two (2) person
death. (Sec. 29).
3. Any person violating any regulation issued by the
Dangerous Drug Board shall be punished with imprisonment WHAT ARE THE PRIVILEGE NOT
ranging from 6 months and 1 day to 4 years and a fine AVAILABLE TO VIOLATOR OF THIS ACT?
ranging from P10,000.00 to P50,000.00 in addition to the
administrative sanction which may be imposed by the Board 1.) Any person charged under any provision of this Act
(Sec. 32) regardless of the imposable penalty shall not be allowed to
avail of the provision on plea-bargaining.
2.) Any person convicted for drug trafficking or pushing
CRIMINAL LIABILITY FOR under this Act, regardless of the penalty imposed by the
PLANTING OF EVIDENCE Court, cannot avail of the privilege granted by the Probation
Law of P.D. No. 968, as amended, except minors who are
Any person who is found guilty of planting nay dangerous first-time offenders.
drug and/ or controlled precursor and essential chemicals,
regardless of quantity and purity, shall suffer the penalty of Note:- Pendency of appeal suspend the right of the accused
death. (Sec. 29). Previosly, only law enforcement agent - Rights to Self-incrimination do not refer to giving blood.
maybe held liable (R.A. 7659).

IMMUNITY FROM PROSECUTION

ACCESORY PENALTIES AND PUNISHMENT

Any person convicted under this Law (R.A.9165 ) shall be Immunity from Prosecution and punishment –
disqualified to exercise his/her civil rights such as, but not Notwithstanding the provision of Section 17, Rule 119 of the
limited to, the right of parental authority or guardianship, Revised Rules of Criminal Procedure and the provisions of
either as to the person or property of any ward, the rights to Republic Act No. 6981 or the Witness Protection, Security
dispose of such property by any act or any conveyance inter and Benefits Act of 1991, any person who has violated
vivos, and political rights such as but not limited to, the right Sections 7,11, 12, 14, 15 and 19, Article II of this Act, who
to vote and be voted for. Such rights shall also be voluntarily gives information about any violation of Section 4,
suspended during the pendency of an appeal from such 5, 6, 8, 13 and 16, Article II of this Act as well as any
conviction (Sec.35) violation of the offenses mentioned if committed by drug
syndicate, or of any information leading to the whereabouts,
identities and arrest of all or any of the members thereof;
AGGRAVATING CIRCUMSTANCES and who willingly testifies against such persons as described
DRUG RELATED CASES above, shall be exempted from the prosecution or
punishment for the offense with reference to which his/her
information of testimony in bar of such prosecution; military, police and other law enforcement agencies shall
Provided, that the following condition concur: undergo an annual mandatory drug test.
e.) All persons charged before the prosecutor’s office with a
1.) The information and testimony are necessary for the criminal offense having an imposable penalty of
conviction of the person described above; imprisonment of not less than six (6) years and one (1) day
2.) Such information are not yet in the possession of the shall have undergo a mandatory drug test.
State; f.) All candidates for public office whether appointed or
3.) Such information and testimony can be corroborated on elected both in the national or local government shall
its material points; undergo a mandatory drug test.
4.) The informant or witness has not been previously
convicted of a crime involving moral turpitude, except when
there is no other direct evidence available for the State other CONFIDENTIALITY OF RECORDS UNDER
than the information and testimony of said informant or THE COMPULSARY SUBMISSION PROGRAM
witness; and
5.) The informant or witness shall strictly and faithfully The records of a drug dependent who was rehabilitated and
comply without delay, any condition or undertaking, reduced discharged from the Center under the compulsory
into writing, lawfully imposed by the State as further submission program, or who was charged for violation of
consideration for the grant of immunity from prosecution and Section 15 of this Act, shall be covered by Section 60 of this
punishment. Act (R.A. 9165). However, the record of a drug dependant
who was not rehabilitated, or who escaped but did not
Provided, further, That this immunity may be enjoyed by surrender himself/herself within the prescribed period, shall
such informant or witness who does not appear to be most be forwarded to the court and their use shall be determined
guilty for the offense with reference to which his/her by the court, taking into consideration public interest and the
information or testimony were given. Provide, finally, that welfare of the drug dependant (Sec. 64)
there is no direct evidence available for the State except for
the information and testimony of the said informant or DISCHARGED AFTER COMPLIANCE WITH CONDITIONS
witness. OF SUSPENDED SENTENCE OF A FIRST-TIME MINOR
OFFENDER

TERMINATION OF THE If the accused first time minor offender under suspended
GRANT OF IMMUNITY sentence complies with the applicable rules and regulation of
the Board, including confinement in a Center, the court, upon
The immunity above-granted shall not attach should it turn a favorable recommendation of the Board for a final
out subsequently that the information and/or testimony is discharge of the accused, shall discharge the accused and
false, malicious, or made only for the purpose of harassing, dismiss all proceedings.
molesting or in any way prejudicing the persons described in Upon the dismissal of the proceedings against the accused,
Section 33 against whom such information or testimony is the court shall enter an order to expunge all official records,
directed. In such case, the informant or witness shall be other than the confidential record to be retained by the DOJ
subject to prosecution and the enjoyment of all rights and relating to the case. Such an order, which shall be kept
benefits previously accorded him under the Law or any other confidential, shall restore the accused to his/her status prior
law, decree or order shall be deemed terminated. to the case. He/she shall not be held thereafter to be guilty of
perjury or of concealment or misrepresentation by reason of
In case the informant or witness under the Law fails or his/her failure to acknowledge the case or recite any fact
refuse to testify without just cause, and when lawfully obliges related therto in response to any inquiry madeof him for any
to do so, or should he/she violate any condition purpose (Sec. 67)
accompanying such immunity as provided above, his/her
immunity shall be removed and he/she shall be likewise be
subjected to contempt and/or criminal prosecution, as the THE DANGEROUS DRUGS BOARD AND
case may be and the enjoyment of all rights and benefits PHILIPPINE DRUG ENFORCEMENT AGENCY
previously accorded him under the Law or in any other law,
decree or order shall be deemed terminated. (Sec 34.) The Dangerous Drug Board

In case the informant or witness referred to under the Law A. Function

falls under the applicability of Section 34, such individual
cannot avail of the provision under Article VIII of the Law. The Dangerous Drug Board shall be the policy-making and
strategy formulating body in the planning and formulation of
policies and programs on drug prevention and control. (Sec.
PERSON/S WHO ARE SUBJECT 77)
TO THE MANDATORY DRUG TESTING
B. Composition
a.) Applicants for driver’s license – no driver’s license shall
be issued or renewed to nay person unless he/she presents Under R.A. 6424 as amended, the Dangerous Drug board
a certification that he/she has undergone a mandatory drug was composed of seven ex officio members as follows: (a)
test and indicating thereon that he/she is free from the use of The Minister of Health or his representative; (b) the Minister
dangerous drugs. of Justice or his representative; (c) The Minister of National
b.) Applicants for firearm’s license and permit to carry Defense or his representative; (d) The Minister of Education
firearms outside of residence. – All applicants for firearms and Culture or his representative; (e) The Minister of
license and permit to carry firearms outside of residence Finance or his representative; (f) The Minister of Social
shall undergo a mandatory drug test to ensure that they are Service and Development or his representative; and (g) The
free from the use of dangerous drugs; Provided, That all Minister of Local Government or his representative (Sec. 35
persons who by the nature of their profession carry firearms Art. 8, R.A. 6424)
shall undergo drug testing; The Minister of Health shall be the Chairman of the Board
c.) Officers and employees of public and private offices. – and the Director of the National Bureau of Investigation shall
Officers and employees of public and private offices, be the permanent consultant of the Board.
whether domestic or overseas, shall be subjected to undergo Under Section 78 of R.A. 9165, the membership of the
a random drug test as contained in the company’s work Dangerous Drugs Board was expanded to seventeen (17)
unless and regulation, which shall be borne by the employer, members, three (3) of which are permanent members,
for purposes of reducing the risk in the workplace. Any twelve (12) shall be in ex officio capacity, and the remaining
officer or employee found positive for the sue of dangerous two (2) shall be regular members.
drug shall be dealt with administratively which shall be a The three (3) permanent members, who shall possess At
ground for suspension or termination, subject to the least seven-year training andexperience in the field of
provision Article 282 of the Labor Code and pertinent dangerous drugs andin any of the following fields: in law,
provisions of the Civil Service Law. medicine, criminology, psychology or social work, shall be
d.) Officers and members of the military, police and other law appointed by the President of the Philippines. The President
enforcement agencies. – Officers and members of the shall designate a Chairman, who shall have the rank of a
secretary from among the three (3) permanent members
who shall serve for six (6) years. Of the two (2) other violating the provisions of this Act and in accordance with the
members, who shall have the rank of undersecretary, one pertinent provisions of the Anti-Money Laundering Act of
(1) shall serve for four (4) and the other for two (2) years. 2002.
Thereafter, the person appointed to succeed such members h.) Prepare for prosecution or cause the filing of appropriate
shall hold office for a term of six (6) years and until their criminal and civil cases for violation of laws on dangerous
successors shall have been duly appointed and qualified. drugs, controlled precursors and essential chemicals, and
The other twelve (12) members who shall be ex officio other similar controlled substance, and assist, support and
members of the Board are the following: (1) Secretary of the coordinate with other government agencies for the proper
Department of Justice or his/her representative; (2) and effective prosecution of the same;
Secretary of the Department of Health or his/her i.) Monitor and if warranted by circumstances, in coordination
representative; (3) Secretary of the Department of National with the Philippine Postal Office and the Bureau of Customs,
Defense or his/her representative; (4) Secretary of the inspect all air cargo packages, parcels and mails in the
Department of Finance or his/her representative; (5) central post office, which appear from the packages and
Secretary of the Department of Labor and Employment or address itself to be a possible importation of dangerous
his/her representative; (6) Secretary of the Department of drugs and/or controlled precursors and essential chemicals,
Interior and Local Government or his/her representative; (7) through on-line or cyber shops via the internet or
Secretary of the Department of Social Welfare and cyberspace;
Development or his/her representative; (8) Secretary of the j.) Conduct eradication programs to destroy wild or illegal
Department of Foreign Affairs or his/her representative; (9) growth of plants from which dangerous drugs may be
Secretary of the Department of Education or his/her extracted;
representative; (10) Chairman of the Commission of Higher k.) Initiate and undertake the formation of a nationwide
Education or his/her representative; (11) Chairman of the organization which shall coordinate and supervise all
National Youth Commission; and (12) Director General of activities against drug abuse in every province, city,
the Philippine Drug Enforcement Agency. municipality and barangay with active and direct participation
Cabinet secretaries who are members of the Board may of all such local government units and non-governmental
designate their duly authorized and permanent organizations, including the citizenry, subject to the
representatives whose rank shall in no case be lower than provisions of previously formulated programs of action
undersecretary. against dangerous drugs;
The two (2) regular members shall be as follows: (a) The l.) Establish and maintain a national drug intelligence system
President of the Integrated Bar of the Philippines; and (b) in cooperation with law enforcement agencies, other
The chairman or president of a non- chairman or president of government agencies/offices and local government units that
a non- chairman or president of a non-government will assist in its apprehension of big time drug lords;
organization involved in dangerous drug campaign to be m.) Established and maintain close coordination,
appointed by the President of the Philippines. cooperation and linkages with international drug control and
administration agencies and organization and implement the
applicable provisions of international conventions and
The Philippine Drug Enforcement Agency (PDEA) agreement related to dangerous drugs to which the
Philippines is a signatory;
A. Functions n.) Create and maintain an efficient special enforcement unit
Carry out the provision of the Dangerous Drug act of 2002. to conduct an investigation, file charges and transmit
The Agency shall served as the implementing arm of the evidence to the proper court, wherein members of the said
Dangerous Drug Board, and shall be responsible for the unit shall possess suitable and adequate firearms for their
efficient and effective law enforcement of all provisions of protection in connection with the performance of their duties;
any dangerous drug and/or controlled precursor and Provided, That no previous special permit for such
essential chemicals as provided for in the Law. (Sec. 82). possession shall be required;
The existing Secretariat of the National Drug Law o.) Require all government and private hospitals, clinics,
Enforcement and Prevention Coordinating Center as created doctors, dentists and other practitioners to submit a report to
by Executive Order No. 61 is hereby modified and absorbed it, in coordination with the Board, about all dangerous drugs
by the PDEA (Sec. 83, R.A. 9165) and/or controlled precursors and essential chemicals which
they have attended to for data and information purposes;
B.) Powers and Duties p.) Coordinate with the Board for the facilitation of the
issuance of necessary guidelines, rules and regulations for
a.) Implement or cause the efficient and effective the proper implementation of this Act;
implementation of the national drug control strategy q.) Initiate and undertake a national campaign for drug
formulated by the Board thereby carrying out a national drug prevention and drug control programs, where it may enlist
campaign program which shall include drug law the assistance of any department, bureau, office, agency, or
enforcement, control and prevention campaign with the instrumentality of the government, including government-
assistance of concerned government agencies; owned and/or controlled corporations, in the anti-illegal
b.) Undertake the enforcement of the provision of article II of drugs drive, which may include the use of their respective
this Act relative to the unlawful acts and penalties involving personnel, facilities, and resources for a more resolute
any dangerous drug and/or controlled precursor and detection and investigation of drug-related crimes and
essential chemical and investigate all violators and other prosecution of the drug traffickers; and
matters involved in the commission of any crime relative to r.) Submit an annual and periodic report to the Board as may
the use, abuse or trafficking of any dangerous drug and/or be required form time to time, and perform such other
controlled precursor and essential chemicals as provided for functions as may be authorized or required under existing
in this Act and the provisions of Presidential Decree No. laws and as directed by the President himself/herself or as
1619; recommended by the congressional committees concerned.
c.) Administer oath, issue subpoena and subpoena duces
tecum relative to the conduct of investigation involving Note:
violation of this Act; There are however certain power and duties of the PDEA
d.) Arrest and apprehend as well as search all violators and enumerated under Section 84 of R.A. 9165 which seems to
seize or confiscate, the effects or proceeds of the crime as overlap with the functions of prosecutors such as (1) the
provided by law and take custody thereof, for this purpose preparation for prosecution or the causing of the filing of
the prosecutors and enforcement agents are authorized to appropriate criminal cases for violation of the Law; and (2)
possess firearms, in accordance with the existing laws; filing of charges and transmittal of evidence to the proper
e.) Take charge and have custody of all dangerous drugs court and which have to be clarified in the Implementing
and/or controlled precursors and essential chemicals seized, Rules and Regulation that may be issued by the DDB and
confiscated or surrendered to any national, provincial or local the PDEA later.
law enforcement agency; if no longer needed for purposes of
evidence in court.
f.) Establish forensic laboratories in each PNP office in every JURISDICTION OVER DRUG RELATED CASES
province and city in order to facilitate action on seized or
confiscated drugs; thereby hastening its destruction without The Supreme Court shall designate special court from
delay; among the existing Regional Trial Court in each judicial
g.) Recommend to the DOJ the forfeiture of properties and region to exclusively try and hear cases involving violations
other assets of persons and/or corporations found to be
of this Act. The number of courts designated in each judicial The PDEA shall take charge and have custody of all
region shall be based in their respective jurisdiction. dangerous drugs, plant sources of dangerous drugs,
controlled precursors and essential chemicals, as well as
The DOJ shall designate special prosecutor to exclusively instruments/paraphernalia and/or laboratory equipment that
handle cases involving violations of this Act. was confiscated, seized and/or surrendered, for proper
disposition in the following manner:

PRELIMINARY INVESTIGATION 1. The apprehending team having initial custody and control
OF DANGEROUS DRUG CASES of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same
The preliminary investigation of cases filed under this Act in the presence of the accused or the person/s from whom
shall be terminated within the period of thirty (30) days from such items were confiscated and/or seized, or his/her
the date of their filing representative or counsel, a representative from the media
and the Department of Justice (DOJ) and any elected public
When the preliminary investigation is conducted by a public official who shall be required to sign the copies of the
prosecutor and probable cause is established, the inventory and be given a copy thereof;
corresponding information shall be filed in court within
twenty-four (24) hours from the termination of the 2. Within twenty-four (24) hours upon confiscation/seizure of
investigation. If the preliminary investigation is conducted by dangerous drugs, plant sources of dangerous drugs,
a judge and a probable cause is found to exist, the controlled precursors and essential chemicals, as well as
corresponding information shall be filed by the proper instruments/paraphernalia and/or laboratory equipment, the
prosecutor within forty-eight (48) hours from the date of same shall be submitted to the PDEA Forensic Laboratory
receipt of the records of the case. (Sec. 90) for a qualitative examination;

The Department of Justice shall designate special 3. A certification of the forensic laboratory examination
prosecutors to exclusively handle cases involving violations results, which shall be under oath by the forensic laboratory
of the Dangerous Drug Act of 2002 (Sec. 90) examiner, shall be issued within twenty-four (24) hours after
the receipt of the subject items/s: Provided, that when the
Notwithstanding the provision of any law to the contrary, a volume of dangerous drugs, and controlled precursors and
positive finding for the use of dangerous drugs shall be a essential chemicals does not allow the completion of testing
qualifying aggravating circumstance in the commission of a within the time frame, a partial laboratory examination report
crime by an offender, and the application of the penalty shall be provisionally by the forensic laboratory: Provided,
provided for in the Revised Penal Code shall be applicable however, that a final certification on the same within the next
(Sec. 25) twenty-four (24) hours;

Confiscation and Forfeiture of the Proceeds or Instruments 4. After the filing of the criminal case, the Court shall within
of the Unlawful Act, including the Properties or Proceeds seventy-two (72) hours, conduct an ocular inspection of the
Derived from the Illegal Trafficking of Dangerous Drugs confiscated, seized and/or surrendered dangerous drugs,
and/or Precursors and Essential Chemicals plant sources of dangerous drugs, and controlled precursor
and essential chemicals, including the
Every penalty imposed for the unlawful importation, sale, instruments/paraphernalia and/or laboratory equipment, and
trading, administration, dispensation, delivery, distribution, through the PDEA shall within twenty-four (24) hours
transportation or manufacture of any dangerous drug and/or thereafter proceed with the destruction or burning of the
controlled precursor and essential chemical, the cultivation same, in the presence of the accused or the person/s from
or culture of plants which are sources of dangerous drugs, which such items were confiscated and/or seized, or his/her
and the possession of any equipment, instrument, apparatus representative or counsel, a representative from the media
and other paraphernalia for dangerous drugs including other and the DOJ, civil society group and any elected public
laboratory equipment, shall carry with it the confiscation and official. The Board shall draw up the guidelines on the
forfeiture, in favor of the government, of all the proceeds and manner of proper disposition and destruction of such item/s
properties derived from unlawful act, including, but not which shall be borne by the offender; Provided, That those
limited to, money and other assets obtained thereby, and the item/s of lawful commerce, as determined by the Board,
instruments or tools with which the particular unlawful act shall be donated, used or recycled for legitimate purposes;
was committed, unless they are the property of a third Provided, further, That a representative sample, duly
person not liable for the unlawful act, but those which are not weighed and recorded, is retained;
of lawful commerce shall be ordered destroyed without delay
pursuant to the provisions of Section 21 of this Act. 5. The Board shall then issue a sworn statement as to the
fact of destruction or burning of the subject item/s together
After conviction in the Regional Trial Court in the appropriate with the representative sample/s shall be kept to a minimum
criminal case filed, the Court shall immediately schedule a quantity as determined by the Board;
hearing for the confiscation and forfeiture of all the proceeds
of the offense and all the assets and properties of the 6. The alleged offender or his/her representative or counsel
accused either owned or held by him or in the name of some shall be allowed to personally observe all of the above
other persons if the same shall be found to be manifestly out proceedings and his/her presence shall not constitute an
of proportion to his/her lawful income; Provided, however, admission of guilt. In case the said offender or accused
That if the forfeited property is a vehicle, the same shall be refuses or fails to appoint a representative after due notice in
auctioned off not later than five (5) days upon order of writing to the accused or his/her counsel within seventy-two
confiscation or forfeiture. (72) hours before the actual or destruction of the evidence in
question, the Secretary of Justice shall appoint a member of
During the pendency of the case in the Regional Trial Court, the public attorney’s office to represent the former;
no property, or income derived thereform, which may be
confiscated and forfeited, shall be disposed, alienated or 7. After the promulgation of judgment in the criminal case
transferred and the same shall be in custodio legis and no wherein the representative sample/s was presented as
bond shall be admitted for the release of the same. evidence in court, the trial prosecutor shall inform the Board
of the final termination of the case and in turn, shall request
The proceeds of any sale or disposition of any property the court for leave to turn over the said representative
confiscated under this section, forfeiture, custody and sample/s to the PDEA for proper disposition and destruction
maintenance of the property pending disposition, as well as within twenty-foru (24) hours from receipt of the same; and
the expense for publication and court costs. The proceeds in
excess of the above expenses shall accrue to the Board to 8. Transitory Provision: a.) Within twenty-four hours from the
be used in its campaign against illegal drugs. effectivity of this Act (R.A. 9165), dangerous drugs defined
herein which are presently in possession of law enforcement
agencies shall, with leave of court, be burned or destroyed,
CUSTODY AND DISPOSITION OF CONFISCATED, in the presence of representative of the Court, DOJ,
SEIZED Department of Health (DOH) and the accused and/or his/her
AND/OR SURRENDERED DANGEROUS DRUGS, ETC. counsel, and b.) Pending the organization of the PDEA, the
custody, disposition, and burning of seized or surrendered
dangerous drugs provided under this Section shall be PROSECUTION WITNESSES IN DANGEROUS DRUG
implemented by the DOH (Sec. 21, Art. 2, R.A. 9165) CASES?

Any member of law enforcement agencies or any other

SUSPENSION OF SENTENCE OF government official and employee who, after due notice, fails
FIRST-TIME MINOR OFFENDER or refuse intentionally or negligently, to appear as a witness
for the prosecution in any proceedings, involving violation of
An accused who is over fifteen (15) years of age at the time this Act, without any valid reason shall be punished with
of the commission of the offense mentioned in Section 11 of imprisonment of not less than twelve (12) years and one (1)
R.A. 9165 but not more that eighteen (18) years of age at day to twenty (20) years and a fine of not less than Five
the time when the judgment should have been promulgated hundred thousand pesos (P500,000.00), in addition to the
after having been found guilty of said offense, may be given administrative liability he/she may be meted out by his/her
the benefits of a suspended sentence, subject to the immediate superior and/or appropriate body.
following conditions:
The immediate superior of the member of the law
a.) He/She has not been previously convicted of violating enforcement agency or any other government employee
any provision of this Act, or of the Dangerous Drugs Act of mentioned in the preceding paragraph shall be penalized
1972, as amended; or of the Revised Penal Code; or any with imprisonment of not less than two (2) months and one
special penal laws; (1) day but not more than six (6) years and a fine of not less
b.) He/She has not been previously committed to a Center or than ten thousand (P10,000.00) but not more than Fifty
to the care of a DOH-accredited physician; and thousand (P50,000.00) and in addition, perpetual absolute
c.) The Board favorably recommends that his/her sentence disqualification from public office if despite due notice to
be suspended. them and to the witness concerned the former does not exert
reasonable effort to present the latter to the court

PRIVILEGE OF SUSPENDED SENTENCE CAN BE AVAIL The member of the law enforcement agency or any other
ONLY ONCE BY A FIRST-TIME MINOR OFFENDER government employee mentioned in the proceeding
paragraphs shall not be transferred or re-assigned to any
The privilege of suspended sentence shall be availed of only other government office located in another territorial
once by accused drug dependent who is a first-time offender jurisdiction during the pendency of the case in court.
over fifteen (15) years of age at the time of the commission However, the concerned member of the law enforcement
of the violation of Section 15 of this Act but not more than agency or government employee may be transferred or re-
eighteen (18) years of age at the time when judgment should assigned for compelling reason: Provided, that his/her
have been promulgated. (Sec. 68) immediate superior shall notify the court where the case is
pending of the order to transfer or re-assign, within twenty-
four (24) hours from its approval: Provided further, that
PROMULAGATION OF SENTENCE his/her immediate superior shall be penalized with
FOR FIRST-TIME OFFENDER imprisonment of not less than two (2) months and one (1)day
but not more than six (6) years and a fine of not less than
If the accused first-time minor offender violates any of the two (2) months and one (1) day but not more than six (6)
conditions of his/her suspended sentence, the applicable years and a fine of not less than Ten thousand (P10,000.00)
rules and regulations of the Board exercising supervision but not more than Fifty thousand pesos (P50,000.00) and in
and rehabilitative surveillance over him, including the rules addition, perpetual absolute disqualification from public
and regulations of the Center should confinement be office, should he/she fails to notify the court of such order to
required, the court shall pronounce judgment of conviction transfer or re-assign.
and he/she shall serve sentence as any other convicted
person. (Sec. 69)
DELAY ANF BUNGLING IN THE
PROSECUTION OF DRUG CASES
PROBATION OR COMMUNITY SERVICE FOR A FIRST-
TIME MINOR OFFENDER IN LIEU OF IMPRISONMENT Any government officer employee tasked with the
prosecution of drug-related cases under this Act, who
Upon promulgation of the sentence, the court may, in its through patent laxity, inexcusable neglect, unreasonable
discretion, place the accused under probation, even if the delay or deliberately causes the unsuccessful prosecution
sentence provided under this Act is higher than that provided and/or dismissal of the said drug cases, shall suffer the
under existing law on probation, or impose community penalty of imprisonment ranging from twelve (12) years and
service in lieu of imprisonment. In case of probation, the one (1) day to twenty (20) years without prejudice to his/her
supervision and rehabilitative surveillance shall be prosecution under the pertinent provision of the Revised
undertaken by the Board through the DOH in coordination Penal Code.
with the Board of Pardons and Parole and the Probation
Administration. Upon compliance with the conditions of the
probation, the Board shall submit a written report to the court RECORDS TO BE KEPT BY THE
recommending termination of probation and a final discharge DEPARTMENT OF JUSTICE
of the probationer, whereupon the court shall issue such an
order. The DOJ shall keep a confidential record of the proceedings
on suspension of sentence and shall not be used for any
The community service shall be complied with under purpose other than to determine whether or not a person
conditions, time and place as may be determined by the accused under this Act is a first-time offender. (Sec. 71)
court in its discretion and upon the recommendation of the
Board and shall apply only to violators of Section 15 of this
Act. The completion of the community service shall be under LIABILITY OF A PERSON WHO VIUOLATES
the supervision and rehabilitative surveillance of the Board THE CONFIDENTIALITY OF RECORDS
during the period required by the court. Thereafter, the
Board shall render a report on the manner of compliance of The Penalty of imprisonment ranging from six (6) months
said community service. The court in its discretion may and one (1) day to six (6) years and a fine ranging from One
require extension of the community service or order a final thousand pesos (P1,000.00) to Six thousand pesos
discharge. (P6,000.00), shall be imposed upon any person who, having
If the sentence promulgated by the court require official custody of or access to the confidential records of any
imprisonment, the period spent in the Center by the accused drug dependent under voluntary submission programs, or
shall be deducted from the sentence to be served. ( Sec. 70) any one who, having gained possession of said records,
whether lawfully or not, reveals their content to any person
other than those charged with the prosecution of the offense
WHAT ARE THE LIABILITY AND RESPONSIBILITY OF A under this Act and its implementation. The maximum penalty
MEMBER OF LAW ENFORCEMENT AGENCIES AND shall be imposed, in addition to the absolute perpetual
OTHER GOVERNMENT OFFICIALS IN TESTIFYING AS disqualification from any public office, when the offender is a
government official or employee. Should the records be used
for unlawful purposes, such as blackmail of the drug POSEUR-BUYER, GENERALLY
defendant of the members of his/her family, the penalty NEED NOT TESTIFY
imposed for the crime of violation of confidentiality shall be in
addition to whatever crime he/she convicted of. (Sec. 72) The testimony of the poseur-buyer or of the confidential
informant is no longer material considering that accused-
appellant’s drug pushing was positively attested to.
LIABILITY OF A PARENTS, SPOUSE OR Moreover, informants are generally not presumed in court
GUARDIAN WHO REFUSE TO COOPERATE because of the need to hide their identity and preserve their
WITH THE BOARD OR ANY CONCERNED AGENCY invaluable service to the police. (People v. Girang; GR
97949, 2/1/95)
Any parent, spouse or guardian who, without valid reason
parent, spouse or guardian who, without valid reason,
refuses to cooperate with the Board or any concerned EFFECT OF LIMITATION UNDER
agency in the treatment and rehabilitation of a drug SECTION 19, ART. VII OF THE
defendant who is a minor, or in any manner, prevents or CONSTITUTION ON GRANT OF PARDON
delay the after-care, follow-up or other programs for the
welfare of the accused drug defendant, whether under The "conviction by final judgment" limitation under Section
voluntary submission program or compulsory submission 19, Article VII of the present Constitution prohibits the grant
program, may be cited in contempt by the court. of pardon, whether full or conditional, to an accused during
the pendency of his appeal from his conviction by the trial
COST-SHARING IN THE TREATMENT AND court. Any application therefor, if one is made, should not be
REHABILITATION OF A DRUG DEFENDENT acted upon or the process toward its grant should not be
begun unless the appeal is withdrawn. Accordingly, the
The parents, spouse, guardian or any relative within the agencies or instrumentalities of the Government concerned
fourth degree of consanguinity of any person who is confined must require proof from the accused that he has not
under the voluntary submission program or compulsory appealed from his conviction or that he has withdrawn his
submission program shall be charged a certain percentage appeal Such proof may be in the form of a certification
of the cost of his/her treatment and rehabilitation, the issued by the trial court or the appellate court, as the case
guidelines of which shall be formulated by the DSWD taking may be The acceptance of the pardon shall not operate as
into consideration the economic status of the family of the an abandonment or waiver of the appeal, and the release of
person confined. The guidelines therein formulated shall be an accused by virtue of a pardon, commutation of sentence,
implemented by a social worker of the local government unit. or parole before the withdrawal of an appeal shall render
(Sec. 74) those responsible therefor administratively liable
Accordingly, those in custody of the accused must not solely
rely on the pardon as a basis for the release of the accused
LIMITED APPLICABILITY OF THE REVISED PENAL CODE from confinement. (People v. Maquilan)

Notwithstanding any law, rule or regulation to the contrary,

the provisions of the Revised Penal Code (Act. 3814) as RULE AS TO WHO SHOULD
amended, shall not apply to the provision of this Act, except BE CRIMINALLY CHARGED
in the case of minor offenders. Where the offender is a
minor, the penalty for acts punishable by life imprisonment to The settled rule is that the determination of who should be
death provided therein shall be reclusion perpetua to death. criminally charged in court is essentially an executive
(Sec. 98) function, not a judicial one. As the officer authorized to direct
and control the prosecution of all criminal actions, the
prosecutor is tasked to ascertain whether there is sufficient
ground to engender a well-founded belief that an offense has
EXCEPTION TO NECESSITY been committed and that the accused is probably guilty
OF A SEARCH WARRANT thereof. (People v. Esparas; GR 120034, July 10, 1998)

There is no doubt that the warrantless search incidental to a

lawful arrest authorizes the arresting officer to make a WHEN THERE IS A WAIVER
search upon the person arrested. An officer making an arrest OF WARRANTLESS ARREST
may take from the person arrested any money or property
found upon his person which was used in the commission of The appellants are now precluded from assailing the
the crime or was in fruit of the crime or which might furnish warrantless search and seizure when they voluntarily
the prisoner with the means of committing violence or of submitted to it as shown by their actuation during the search
escaping, which may be used as evidence in the trial of the and seizure. The appellants never protested when SPO3
case. (People v. Musa; GR 96177, 1/27/93) Jesus Faller, after identifying himself as a police officer,
opened the tin can loaded in the appellants' vehicle and
found eight (8) bundles. And when Faller opened one of the
LIKE ALIBI, FRAME UP IS EASY bundles, it smelled of marijuana. The NBI later confirmed the
TO FABRICATE, BUT DIFFICULT eight (8) bundles to be positive for marijuana. Again, the
TO PROVE appellants did not raise any protest when they, together with
their cargo of drugs and their vehicle, were brought to the
Frame-up, like alibi, is a defense that has been viewed by police station for investigation and subsequent prosecution.
courts with disfavor for it can just as easily be connected and We have ruled in a long line of cases that:
is a common and standard line of defense in most
prosecution arising from violations of the Dangerous Drugs "When one voluntarily submits to a search or consents to
Act. In order for that defense to prosper, the evidence have it made on his person or premises, he is precluded
adduced must be clear and convincing. (People v. Girang; from later complaining thereof (Cooley, Constitutional
GR 27949, 2/1/95) Limitations, 8th ed., vol. I, page 631). The right to be secure
from unreasonable search may, like every right, be waived
and such waiver may be made either expressly or impliedly."
BUY-BUST OPERATION
The appellants effectively waived their constitutional right
Is a form of entrapment employed by peace officers as an against the search and seizure in question by their voluntary
effective way of apprehending a criminal in the act of the submission to the jurisdiction of the trial court, when they
commission of the offense. Entrapment has received judicial entered a plea of not guilty upon arraignment and by
sanction as long as it is carried out with due regard to participating in the trial. (People v. Correa; GR 119246, Jan.
constitutional and legal safeguards. (People v. Basilgo; GR 30, ’98)
107327, 8/5/94)

WHEN USE OF MOTOR VEHICLE

IN DRUG CASES OR ANY OTHER
CASE IS NOT AGGRAVATING
 search without a warrant, would be to sanction impotence
Simply stated, the motor vehicle which was used to transport and ineffectiveness in law enforcement, to the detriment of
prohibited drugs was not purposely sought to facilitate the society.
commission of the crime since such act of transporting
constitutes the crime itself, punishable under Section 4, Note, however, the glaring differences of Malmstedt to the
Article II of Republic Act No. 6425, as amended. That a instant case. In present case, the police officers had
motor vehicle was used in committing the crime is merely reasonable time within which to secure a search warrant.
incidental to the act of transporting prohibited drugs. The use Second, Aruta's identity was priorly ascertained. Third, Aruta
of a motor vehicle is inherent in the crime of transporting as was not acting suspiciously. Fourth, Malmstedt was
it must of necessity accompany the commission thereof; searched aboard a moving vehicle, a legally accepted
hence, such use is not an aggravating circumstance. exception to the warrant requirement. Aruta, on the other
(People v. Correa) hand, was searched while about to cross a street.

In People v. Bagista, the NARCOM officers had probable

CASES WHEN WARRANTLESS SEARCH IS ALLOWED cause to stop and search all vehicles coming from the north
to Acop, Tublay, Benguet in view of the confidential
information they received from their regular informant that a
1. Warrantless search incidental to a lawful arrest woman having the same appearance as that of accused-
recognized under Section 12, Rule 126 of the Rules of Court appellant would be bringing marijuana from up north. They
and by prevailing jurisprudence; likewise had probable cause to search accused-appellant's
belongings since she fitted the description given by the
2. Seizure of evidence in "plain view," the elements of which NARCOM informant. Since there was a valid warrantless
are: search by the NARCOM agents, any evidence obtained in
the course of said search is admissible against accused-
(a) a prior valid intrusion based on the valid warrantless appellant. Again, this case differs from Aruta as this involves
arrest in which the police are legally present in the pursuit of a search of a moving vehicle plus the fact that the police
their official duties; officers erected a checkpoint. Both are exceptions to the
(b) the evidence was inadvertently discovered by the police requirements of a search warrant.
who had the right to be
where they are; In Manalili v. Court of Appeals and People, the policemen
(c) the evidence must be immediately apparent, and conducted a surveillance in an area of the Kalookan
(d) "plain view" justified mere seizure of evidence without Cemetery based on information that drug addicts were
further search; roaming therein. Upon reaching the place, they chanced
upon a man in front of the cemetery who appeared to be
3. Search of a moving vehicle. Highly regulated by the "high" on drugs. He was observed to have reddish eyes and
government, the vehicle's inherent mobility reduces to be walking in a swaying manner. Moreover, he appeared
expectation of privacy especially when its transit in public to be trying to avoid the policemen. When approached and
thoroughfares furnishes a highly reasonable suspicion asked what he was holding in his hands, he tried to resist.
amounting to probable cause that the occupant committed a When he showed his wallet, it contained marijuana. The
criminal activity; Court held that the policemen had sufficient reason to accost
accused-appellant to determine if he was actually "high" on
4. Consented warrantless search; drugs due to his suspicious actuations, coupled with the fact
5. Customs search; that based on information, this area was a haven for drug
6. Stop and Frisk; and addicts.
7. Exigent and Emergency Circumstances.
(People v. Menguin; GR 120915, Apr. 13, ’98) This case is similar to People v. Aminnudin where the police
received information two days before the arrival of
Aminnudin that the latter would be arriving from Iloilo on
CASES WHEN SEARCH WITHOUT board the M/V Wilcon 9. His name was known, the vehicle
A WARRANT WAS VALID was identified and the date of arrival was certain. From the
information they had received, the police could have
In People v. Tangliben, acting on information supplied by persuaded a judge that there was probable cause, indeed, to
informers, police officers conducted a surveillance at the justify the issuance of a warrant. Instead of securing a
Victory Liner Terminal compound in San Fernando, warrant first, they proceeded to apprehend Aminnudin.
Pampanga against persons who may commit misdemeanors When the case was brought before this Court, the arrest was
and also on those who may be engaging in the traffic of held to be illegal; hence any item seized from Aminnudin
dangerous drugs. At 9:30 in the evening, the policemen could not be used against him.
noticed a person carrying a red travelling bag who was
acting suspiciously. They confronted him and requested him Another recent case is People v. Encinada where the police
to open his bag but he refused. He acceded later on when likewise received confidential information the day before at
the policemen identified themselves. Inside the bag were 4:00 in the afternoon from their informant that Encinada
marijuana leaves wrapped in a plastic wrapper. The police would be bringing in marijuana from Cebu City on board M/V
officers only knew of the activities of Tangliben on the night Sweet Pearl at 7:00 in the morning of the following day. This
of his arrest. intelligence information regarding the culprit's identity, the
particular crime he allegedly committed and his exact
In instant case, the apprehending officers already had prior whereabouts could have been a basis of probable cause for
knowledge from their informant regarding Aruta's alleged the lawmen to secure a warrant. This Court held that in
activities. In Tangliben policemen were confronted with an accordance with Administrative Circular No. 13 and Circular
on-the-spot tip. Moreover, the policemen knew that the No. 19, series of 1987, the lawmen could have applied for a
Victory Liner compound is being used by drug traffickers as warrant even after court hours. The failure or neglect to
their "business address". More significantly, Tangliben was secure one cannot serve as an excuse for violating
acting suspiciously. His actuations and surrounding Encinada's constitutional right.
circumstances led the policemen to reasonably suspect that
Tangliben is committing a crime. In instant case, there is no People v. Solayao, applied the stop and frisk principle which
single indication that Aruta was acting suspiciously. has been adopted in Posadas v. Court of Appeals. In said
case, Solayao attempted to flee when he and his
In People v. Malmstedt, the Narcom agents received reports companions were accosted by government agents. In the
that vehicles coming from Sagada were transporting instant case, there was no observable manifestation that
marijuana. They likewise received information that a could have aroused the suspicion of the NARCOM agents as
Caucasian coming from Sagada had prohibited drugs on his to cause them to "stop and frisk" accused-appellant. To
person. There was no reasonable time to obtain a search reiterate, accused-appellant was merely crossing the street
warrant, especially since the identity of the suspect could not when apprehended. Unlike in the abovementioned cases,
be readily ascertained. His actuations also aroused the accused-appellant never attempted to flee from the
suspicion of the officers conducting the operation. The Court NARCOM agents when the latter identified themselves as
held that in light of such circumstances, to deprive the such. Clearly, this is another indication of the paucity of
agents of the ability and facility to act promptly, including a
probable cause that would sufficiently provoke a suspicion (Espano v. C.A.; GR 120431, April 1, ’98)
that accused-appellant was committing a crime.

This Court cannot agree with the Solicitor General's MEANING OF “TO TRANSPORT”
contention for the Malasugui case is inapplicable to the IN DRUG CASES
instant case. In said case, there was probable cause for the
warrantless arrest thereby making the warrantless search In People vs. Lo Ho Wing, the Court defined the term
effected immediately thereafter equally lawful. On the "transport", as used under the Dangerous Drugs Act to mean
contrary, the most essential element of probable cause, as "to carry or convey from one place to another" , the operative
expounded above in detail, is wanting in the instant case words being "to carry or to convey". The fact that there is
making the warrantless arrest unjustified and illegal. actual conveyance suffices to support a finding that the act
Accordingly, the search which accompanied the warrantless of transporting was committed. It is immaterial whether or
arrest was likewise unjustified and illegal. Thus, all the not the place of destination was reached. (People v. Latura)
articles seized from the accused-appellant could not be used
as evidence against her. (People v. Menguin)
WHEN POLICE OFFICERS INTENTIONALLY PEEPED
THRU A WINDOW THEN WENT INSIDE AND ARRESTED
WHEN SEARCH IS NOT VALID THOSE INSIDE WHO ARE PACKING MARIJUANA. THE
SAME IS ILLEGAL
Accused-appellant Aruta cannot be said to be committing a
crime. Neither was she about to commit one nor had she just The police officers intentionally peeped first through the
committed a crime. Accused-appellant was merely crossing window before they saw and ascertained the activities of
the street and was not acting in any manner that would accused-appellants inside the room. In like manner, the
engender a reasonable ground for the NARCOM agents to search cannot be categorized as a search of a moving
suspect and conclude that she was committing a crime. It vehicle, a consented warrantless search, a customs search,
was only when the informant pointed to accused-appellant or a stop and frisk; it cannot even fall under exigent and
and identified her to the agents as the carrier of the emergency circumstances, for the evidence at hand is bereft
marijuana that she was singled out as the suspect. The of any such showing.
NARCOM agents would not have apprehended accused-
appellant were it not for the furtive finger of the informant On the contrary, it indicates that the apprehending officers
because, as clearly illustrated by the evidence on record, should have conducted first a surveillance considering that
there was no reason whatsoever for them to suspect that the identities and address of the suspected culprits were
accused-appellant was committing a crime, except for the already ascertained. After conducting the surveillance and
pointing finger of the informant. This the Court could neither determining the existence of probable cause for arresting
sanction nor tolerate as it is a clear violation of the accused-appellants, they should have secured a search
constitutional guarantee against unreasonable search and warrant prior to effecting a valid arrest and seizure. The
seizure. Neither was there any semblance of any compliance arrest being illegal ab initio, the accompanying search was
with the rigid requirements of probable cause and likewise illegal. Every evidence thus obtained during the
warrantless arrests. illegal search cannot be used against accused-appellants;
hence, their acquittal must follow in faithful obeisance to the
Consequently, there was no legal basis for the NARCOM fundamental law. (PP -vs- ZENAIDA BOLASA Y
agents to effect a warrantless search of accused-appellant's NAKOBOAN, ET AL., G.R. No. 125754, Dec. 22, 1999)
bag, there being no probable cause and the accused-
appellant not having been lawfully arrested. Stated
otherwise, the arrest being incipiently illegal, it logically SEARCH AND SEIZURE WITHOUT THE REQUISITE
follows that the subsequent search was similarly illegal, it JUDICIAL WARRANT IS ILLEGAL AND VOID AB INITIO
being not incidental to a lawful arrest. The constitutional
guarantee against unreasonable search and seizure must As a general rule, the procurement of a search warrant is
perforce operate in favor of accused-appellant. As such, the required before law enforcer may validly search or seize the
articles seized could not be used as evidence against person, house, papers or effects of any individual. In People
accused-appellant for these are "fruits of a poisoned tree" v. Valdez, the court ruled that search and seizure conducted
and, therefore, must be rejected, pursuant to Article III, Sec. without the requisite judicial warrant is illegal and void ab
3(2) of the Constitution. (People v. Menguin) initio.

xxx
WHEN VOLUNTARY SUBMISSION
TO SEARCH IS INAPPLICABLE “Lawmen cannot be allowed to violate the very law they are
expected to enforce.” The Court is not unmindful of the
Aside from the inapplicability of the abovecited case, the act difficulties of law enforcement agencies in suppressing the
of herein accused-appellant in handing over her bag to the illegal traffic of dangerous drugs. However, quick solutions of
NARCOM agents could not be construed as voluntary crimes and apprehension of malefactors do not justify a
submission or an implied acquiescence to the unreasonable callous disregard of the Bill of Rights”. We need not
search. The instant case is similar to People v. Encinada. underscore that the protection against illegal search and
(People v. Menguin) seizures is constitutionally mandated and only under specific
instances are seizures allowed without warrants.
WHEN SEARCH IS NOT
ALLOWED AFTER In this case, the prosecution’s evidence clearly established
AN ARREST IS MADE that the police conducted a search of accused’s backyard
garden without warrant; they had sufficient time to obtain a
In the case of People v. Lua, this Court held: search warrant; they failed to secure one. There was no
showing of urgency or necessity for the warrantless search,
"As regards the brick of marijuana found inside the or the immediate seizure of the marijuana plants. (People vs.
appellant's house, the trial court correctly ignored it Alberto Pasudag)
apparently in view of its inadmissibility. While initially the
arrest as well as the body search was lawful, the warrantless
search made inside the appellant's house became unlawful
since the police operatives were not armed with a search
warrant. Such search cannot fall under "search made
incidental to a lawful arrest," the same being limited to body
search and to that point within reach or control of the person
arrested, or that which may furnish him with the means of
committing violence or of escaping. In the case at bar,
appellant was admittedly outside his house when he was
arrested. Hence, it can hardly be said that the inner portion
of his house was within his reach or control.