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Thursday, June 19, 2008

Special Penal Laws Reviewer, Part 1
INDETERMINATE SENTENCE LAW
(Act No. 4103 as amended by Act No. 4225)

WHEN AN ACCUSED IS SENTENCED TO RECLUSION PERPETUA, HE IS NOT ENTITLED TO THE APPLICATION

OF THE INDETERMINATE SENTENCE LAW

Accused-appellant cannot avail of the benefits of the Indeterminate Sentence Law because
Indeterminate Sentence Law does not apply to persons convicted of offenses punishable with reclusion
perpetua.
(People v. Aquino; GR 125906, Jan. 16, 98)

APPLICATION OF INDETERMINATE SENTENCE LAW EXPLAINED

In the case of People vs. Gabres, the Court has had occasion to so state that
"Under the Indeterminate Sentence Law, the maximum term of the penalty shall be 'that which, in view
of the attending circumstances, could be properly imposed' under the Revised Penal Code, and the
minimum shall be within the range of the penalty next lower to that prescribed' for the offense. The
penalty next lower should be based on the penalty prescribed by the Code for the offense, without first
considering any modifying circumstance attendant to the commission of the crime. The determination
of the minimum penalty is left by law to the sound discretion of the court and it can be anywhere within
the range of the penalty next lower without any reference to the periods into which it might be
subdivided. The modifying circumstances are considered only in the imposition of the maximum term of
the indeterminate sentence.
"The fact that the amounts involved in the instant case exceed P22,000.00 should not be considered in
the initial determination of the indeterminate penalty; instead, the matter should be so taken as
analogous to modifying circumstances in the imposition of the maximum term of the full indeterminate
sentence. This interpretation of the law accords with the rule that penal laws should be construed in
favor of the accused. Since the penalty prescribed by law for the estafa charge against accused-appellant
is prision correccional maximum to prision mayor minimum, the penalty next lower would then be
prision correccional minimum to medium. Thus, the minimum term of the indeterminate sentence
should be anywhere within six (6) months and one (1) day to four (4) years and two (2) months . . ."
(People v. Saley; GR 121179, July 2, 98)

INDETERMINATE SENTENCE LAW; APPLICABLE ALSO IN DRUG CASES:

The final query is whether or not the Indeterminate Sentence Law is applicable to the case now before
us. Apparently it does, since drug offenses are not included in nor has appellant committed any act
which would put him within the exceptions to said law and the penalty to be imposed does not involve
reclusion perpetua or death, provided, of course, that the penalty as ultimately resolved will exceed one
year of imprisonment. The more important aspect, however, is how the indeterminate sentence shall be
ascertained. It is true that Section 1 of said law, after providing for indeterminate sentence for an

offense under the Revised Penal Code, states that "if the offense is punished by any other law, the court
shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed
the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by
the same" We hold that this quoted portion of the section indubitably refers to an offense under a
special law wherein the penalty imposed was not taken from and is without reference to the Revised
Penal Code, as discussed in the preceding illustrations, such that it may be said that the "offense is
punished" under that law. There can be no sensible debate that the aforequoted rule on indeterminate
sentence for offenses under special laws was necessary because of the nature of the former type of
penalties under said laws which were not included or contemplated in the scale of penalties in Article 71
of the Code, hence there could be no minimum "within the range of the penalty next lower to that
prescribed by the Code for the offense," as is the rule for felonies therein. In the illustrative examples of
penalties in special laws hereinbefore provided, this rule applied, and would still apply, only to the first
and last examples. Furthermore, considering the vintage of Act No. 4103 as earlier noted, this holding is
but an application and is justified under the rule of contemporanea expositio. Republic Act No. 6425, as
now amended by Republic Act No. 7659, has unqualifiedly adopted the penalties under the Revised
Penal Code in their technical terms, hence with their technical signification and effects. In fact, for
purposes of determining the maximum of said sentence, we have applied the provisions of the amended
Section 20 of said law to arrive at prision correccional and Article 64 of the Code to impose the same in
the medium period. Such offense, although provided for in a special law, is now in the effect punished
by and under the Revised Penal Code.
(People v Martin Simon)
WHEN THE BENEFITS OF INDETERMINATE SENTENCE LAW IS NOT APPLICABLE;
a. Offenses punished by death or life imprisonment.
b. Those convicted of treason (Art. 114), conspiracy or proposal to commit treason (Art. 115).
c. Those convicted of misprision of treason (Art. 116), rebellion (Art. 134), sedition (Art. 139), or
espionage
(Art. 117).
d. Those convicted of piracy (Art. 122).
e. Habitual delinquents (Art. 62, par. 5).
f. Those who escaped from confinement or those who evaded sentence.
g. Those granted conditional pardon and who violated the terms of the same (Art. 159). (People v.
Corral, 74
Phil. 359).
h. Those whose maximum period of imprisonment does not exceed one year.
i. Those who are already serving final judgment upon the approval of the Indeterminate Sentence Law.
j. those offenses or crimes not punishable by imprisonment such as distierro and suspension.

RECIDIVISTS ARE ENTITLED TO THE BENEFITS OF THE INDETERMINATE SENTENCE

Recidivists are entitled to an indeterminate sentence. (People v. Jaramilla, L-28547, Feb. 22, 1974).
Offender is not disqualified to avail of the benefits of the law even if the crime is committed while he is
on parole. (People v. Clareon, CA 78 O.G. 6701, Nov. 19, 1982). (Bacar v. De Guzman)

NATURE OF PENALTY OF RECLUSION PERPETUA

In "People -vs- Conrado Lucas, 240 SCRA 66, the Supreme Court declared that despite the amendment
of Article 27 of the Revised Penal Code, reclusion perpetua remained an indivisible penalty. Hence, the
penalty does not have any minimum, medium and maximum period. Hence, there is no such penalty of
medium period of reclusion perpetua. (People versus Tiburcio Baculi, 246 SCRA)
IMPOSITION OF WRONG PENALTY: IT DOES NOT OBTAIN FINALITY
Suppose the court imposed a penalty of 25 years of reclusion perpetua for the crime of rape and the
accused did not appeal, does the judgment become final and executory? No, such judgment is null and
void because it imposed a non-existent penalty. Hence, the court may nevertheless correct the penalty
imposed on the accused, that is, reclusion perpetua, it is merely performing a duty inherent in the court.
(People versus Nigel Gatward, GR No. 119772-73, February 7, 1997)
DIFFERENCE BETWEEN RECLUSION PERPETUA AND LIFE IMPRISONMENT
The penalty of reclusion perpetua is different from life imprisonment. The former carries with it
accessory penalties, whereas life imprisonment does not carry with it any accessory penalties; reclusion
perpetua is that provided for under the Revised Penal Code and under crimes defined by special laws
using the nomenclature under the Revised Penal Code ; life imprisonment is that provided for violations
of the Revised Penal Code. Reclusion Perpetua may be reduced by one or two degrees while life
imprisonment cannot be so reduced. (People -vs- Rolnando Madriaga, GR No. 82293, July 23, 1992.)
WHICH IS MORE BURDENSOME LIFE IMPRISONMENT OF RECLUSION PERPETUA
Reclusion perpetua has accessory penalties while life imprisonment does not. However, life
imprisonment does not have a fixed duration or extent while reclusion perpetua has a duration of from
twenty years and one day to forty years. life imprisonment may span the natural life of the convict.
(People -versus- Rallagan, 247 SCRA 537)
RECLUSION PERPETUA AND LIFE IMPRISONMENT CANNOT BE INTER-CHANGE WHEN IMPOSED AS
PENALTY
Where the law violated provides for the penalty of reclusion perpetua, impose the said penalty and not
the penalty of life imprisonment. Where the law imposes the penalty of life imprisonment, do not
impose reclusion perpetua. (People -vs- Rolando Madriaga, 211 SCRA 698)

THE REASON WHY RECLUSION PERPETUA HAS A RANGE DESPITE THE SAME BEING INDIVISIBLE
There we also said that "if reclusion perpetua was reclassified as a divisible penalty, then Article 63 of
the Revised Penal Code would lose its reason and basis for existence." The imputed duration of thirty
(30) years of reclusion perpetua, therefore, only serves as the basis for determining the convict's
eligibility for pardon or for the application of the three-fold rule in the service of multiple penalties.
(People -vs- Aspolinar Raganas, et al., GR No. 101188, October 12, 1999)

RARE CASE OF APPLICATION OF RPC IN A SUPPLETORY CHARACTER DESPITE THE PENALTY BEING LIFE
IMPRISONMENT
Where the accused committed qualified violation of PD 704 (fishing with the use of explosives), the
imposable penalty for which is life imprisonment to death. If the accused is entitled to a mitigating
circumstance of voluntary surrender, the court should impose life imprisonment applying, in a
suppletory character, Articles 13 and 63 of the Revised Penal Code. (People -vs- Priscilla Balasa, GR No.
106357, September 3, 1998)
ACCUSED WHO IS SENTENCED TO RECLUSION PERPETUA IS STILL ENTITLED TO EITHER FULL OR OF HIS
PREVENTIVE IMPRISONMENT
If, during the trial, the accused was detained but, after trial, he was meted the penalty of reclusion
perpetua, he is still entitled to the full credit of his preventive imprisonment because Article 29 of the
Revised Penal Code does not distinguish between divisible and indivisible penalties. (People -vs- Rolando
Corpuz, 231 SCRA 480)

QUALIFIED THEFT

QUALIFIED THEFT IS PENALIZED BY RECLUSION PERPETUA IF AMOUNT INVOLVED IS OVER P22,000.00

Under Article 309 of the Revised Penal Code, the maximum of the penalty for qualified theft is prision
mayor to reclusion temporal. However, under Article 310 of the Revised Penal Code, the penalty for the
crime shall be two (2) degrees higher than the specified in Article 309 of the Code. Under Article 74 of
the Revised Penal Code, the penalty higher by one degree than another given penalty, and if such higher
penalty is death, the penalty shall be reclusion perpetua of forty (40) years with the accessory penalties
of death under Article 40 of the Revised Penal Code. The accused shall not be entitled to pardon before
the lapse of forty (40) years. (People -vs- Fernando Canales, 297 SCRA 667)

THE PROBATION LAW (P.D. 968) AND ITS AMENDMENTS

PROBATION, ITS MEANING

A disposition under which a defendant, after conviction and sentence, is subject to conditions imposed
by the Court and under the supervision of a probation officer.

PURPOSES OF PROBATION:
a. to promote the correction and rehabilitation of an offender by providing him with personalized
community based treatment;
b. to provide an opportunity for his reformation and reintegration into the community;
c. to prevent the commission of offenses.

SUBMISSION OF PETITION AND TIME OF FILING OFPETITION

The petition or application for probation must be filed directly with the Court which sentenced the
accused within 15 days from date of promulgation of the decision convicting the accused, or in short
within the period to appeal otherwise the judgment shall become final and the accused shall be deemed
to have waived his right to probation.
EFFECT OF FILING OF PETITION FOR PROBATION
Upon filing of petition for probation, the court shall suspend the execution of sentence.
Likewise, the filing of a petition for probation shall be deemed a waiver of the right to appeal and in case
an appeal is made immediately after conviction, a filing of petition for probation still within the period
to appeal, that is within fifteen days from date of promulgation shall be deemed a withdrawal of the
appeal.
PENDING RESOLUTION OF PETITION, WHAT ARE THE PRIVILEDGE THAT MAYBE GIVEN TO THE ACCUSEDPETITIONER?
1. if the accused, prior to the promulgation of decision of conviction is out on bail, he may be allowed on
temporary liberty under his bail filed in said case;
2. if he is under detention, upon motion, he may be allowed temporary liberty, if he cannot post a bond,
on
recognizance of a responsible member of a community who shall guarantee his appearance whenever

required by the court.

IN CASE THE APPLICANT FOR PROBATION CANNOT BE PRODUCED BY THE CUSTODIAN ON
RECOGNIZANCE, WHAT HAPPENS?
The custodian must be asked to explain why he should not be cited for contempt for failing to produce
the probationer when required by the court; Summary hearing will be held for indirect contempt, and if
custodian cannot produce the petitioner, nor to explain his failure to produce the petitioner, the
custodian on recognizance shall be held in contempt of court.
WHAT IS A POST SENTENCE INVESTIGATION REPORT?
It is a report of the Parole and Probation Officer after conducting post sentence investigation and
interviews containing the circumstances surrounding the offense for which the petitioner was convicted.
The findings should be drawn from the court records, police records, statement of defendants, the
aggrieved party and other persons who may know the petitioner and all other matters material to the
petition.
It will also include the psychological and social information regarding the probationer; evaluation of the
petitioner; suitability for probation; his potential for rehabilitation; and may include the program for
supervision and suggested terms of conditions of probation and a recommendation either to deny or
grant the probation.
WHAT ARE THE MANDATORY CONDITIONS OF PROBATION?
a. To present himself to the probation officer concerned for supervision within 72 hours from receipt of
said
order and
b. to report to the probation officer at least once a month during the period of probation.
WHAT ARE THE OTHER CONDITIONS OF PROBATION?
a. cooperate with a program of supervision;
b. meet his family responsibilities;
c. devote himself to a specific employment and not to charge said employment without prior written
approval of the probation officer;
d. comply with a program of payment of civil liability to the victim of his heirs;
e. undergo medical, psychological or psychiatric examination and treatment and/or enter and remain in
a
specific institution, when required for that purposes;
f. pursue a prescribed secular study or vocational training;

g. attend or reside in a facility established for instruction or recreation of persons on probation;

h. refrain from visiting houses of ill-repute;
i. abstain from drinking intoxicating beverages to excess;
j. permit the probation officer or an authorized social worker to visit his home and place of work;
k. reside at premises approved by the court and not to change his residence w/o prior written approval;
and
l. satisfy any other condition related to the rehabilitation of the probationer and not unduly restrictive of
his
liberty or incompatible with his freedom of conscience.
m. plant trees ( see circular of the SC )

RULES ON OUTSIDE TRAVEL OF PROBATIONER

A probationer who desires to travel outside the jurisdiction of the city or provincial probation officer for
not more than 30 days, the permission of the parole and probation officer must be sought. If for more
than thirty (30) days, aside from the permission of the parole and probation officer, the permission of
the court must likewise be sought.
EFFECT OF APPEAL BY THE ACCUSED OF HIS CONVICTION
a. If the accused appeals his conviction for the purpose of totally reversing his conviction, he is deemed
to have waived his right to probation.
b. The rule that if the accused appeals his conviction only with respect to the penalty, as he believes the
penalty is excessive or wrong, as the penalty is probationable, and the appellate court sustains the
accused may still apply for probation, has already been abandoned. An appeal 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 therefore, irrespective of its purpose, to overturn the entire
decision or only with respect to penalty is a waiver to probation.
CONFIDENTIALITY OF RECORDS OF PROBATION
The investigation report and the supervision and history of a probationer obtained under PD No. 968
and under these rules shall be privileged and shall not be disclosed directly or indirectly to anyone other
than the probation administration or the court concerned the court which granted the probation or
where the probation was transferred may allow the probationer to inspect the aforesaid documents or
his lawyer, whenever such disclosure may be desirable or helpful to them.
Any government office may ask for the records of probation from the court for its official use or from
the administrator.

Sec. 29, PD 968: VIOLATION OF CONFIDENTIAL NATURE OF PROBATION RECORDS. The penalty of
imprisonment ranging from six months and one day to six years and a fine ranging from hundred to six
thousand pesos shall be imposed upon any person who violates Section 17 hereof.
MODIFICATION OF CONDITION OR PERIOD OF PROBATION
The court, on motion, or motu propio may modify the conditions of probation or modify the period of
probation as circumstances may warrant.

WHO ARE DISQUALIFIED TO UNDERGO PROBATION

1. Those sentenced to serve a maximum term of imprisonment of more than six years.
2. Those convicted of any offense against the security of the state;
3. Those who have been previously convicted by final judgment of an offense punished by imprisonment
of not less than one moth and one day and/or a fine of not less than P200.00;
4. Those who have been once on probation under the provisions of this decree.
5. Those convicted of RA 9156.
6. Those convicted of violation of election laws.
PERIOD OF PROBATION
1. If the probationer has been sentenced to an imprisonment of not more than one year, the probation
shall not exceed two years;
2. In all other cases, not to exceed six years;
3. In case the penalty is fine, the probation shall not be less than the period of subsidiary imprisonment
nor more than twice of the subsidiary imprisonment.
AMENDMENT TO SECTION 4 OF PD 968:
"Sec. 4. Grant of Probation. - Subject to the provisions of this Decree, the trial court may, after it shall
have convicted and sentenced a defendant, and upon application by said defendant within the period
for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation
for such period and upon such terms and conditions as it may deem best; Provided, That no application
for probation shall be entertained or granted if the defendant has perfected the appeal from the
judgment of conviction.
"Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An
application for probation shall be filed with the trial court. The filing of the application shall be deemed a
waiver of the right to appeal.
"An order granting or denying probation shall not be appealable."

Thus, a person who was sentenced to destierro cannot apply for probation. Reason: it does not involved
imprisonment or fine. (PD 1990)

JURISPRUDENCE

UNDERLYING PHILOSOPHY OF PROBATION

The underlying philosophy of probation is indeed one of liberality towards the accused. It is not served
by a harsh and stringent interpretation of the statutory provisions. Probation is a major step taken by
our Government towards the deterrence and minimizing of crime and the humanization of criminal
justice. In line with the public policy behind probation, the right of appeal should not be irrevocably lost
from the moment a convicted accused files an application for probation. Appeal and probation spring
from the same policy considerations of justice, humanity, and compassion. (Yusi v Morales, 4/28/83)

PROBATION IS NOT A RIGHT BUT A PRIVILEGE

Probation is a mere privilege and its grant rests solely upon the discretion of the court. As aptly noted in
U.S. vs. Durken, this discretion is to be exercised primarily for the benefit of organized society and only
incidentally for the benefit of the accused. (Tolentino v. Alconcel, G.R. No. 63400, 3/18/83). Even if a
convicted person is not included in the list of offenders disqualified from the benefits of a decree, the
grant of probation is nevertheless not automatic or ministerial, (Pablo Bernardo v. Balagot, 215 SCRA
526) therefore a petition for probation may be denied by the Court.

MAIN CRITERION FOR DETERMINING WHO MAY BE GRANTED PROBATION.

The main criterion laid down by the Probation law in determining who may be granted probation is
based on the penalty imposed and not on the nature of the crime. By the relative lightness of the
offense, as measured by the penalty 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 criminals should be. Hence, in the case at bar, the first reason given by the
respondent judge for his denial of the petition for probation that, "probation will depreciate the
seriousness of the offense committed" would thus be writing into the law a new ground for disqualifying
a first-offender from the benefits of probation. (Santos v. Cruz-Pano, 1/17/83)

TIMELINESS OF FILING APPLICATION FOR PROBATION

The accused must file a Petition for Probation within the period for appeal. If the decision of conviction
has become final and executory, the accused is barred from filing a Petition for Probation (Pablo
Francisco v. C.A., 4/6/95).

ORDER DENYING PROBATION NOT APPEALABLE, REMEDY CERTIORARI

Although an order denying probation is not appealable, the accused may file a motion for Certiorari
from said order (Heirs of Francisco Abueg v. C.A., 219 SCRA 78)

EFFECT OF FILING PETITION FOR PROBATION, WAIVER OF RIGHT TO APPEAL AND FINALITY OF
JUDGEMENT
A judgment of conviction becomes final when the accused files a petition for probation. However, the
judgement is not executory until the petition for probation is resolved. The filing of the petition for
probation is a waiver by the accused of his right to appeal the judgement of conviction (Heirs of
Francisco Abueg v. C.A., supra).

MULTIPLE CONVICTIONS IN SEVERAL CASES PROBATIONABLE IF PENALTY FOR EACH CONVICTION IS

PROBATIONABLE
." Evidently, the law does not intend to sum up the penalties imposed but to take each penalty,
separately and distinctly with the others. Consequently, even if petitioner was supposed to have served
his prison term of one (1) year and one (1) day to one (1) year and eight (8) months of prision
correccional sixteen (16) times as he was sentenced to serve the prison term for "each crime committed
on each date of each case, as alleged in the information(s)," and in each of the four (4) informations, he
was charged with having defamed the four (4) private complainants on four (4) different, separate days,
he was still eligible for probation, as each prison term imposed on petitioner was probationable.
(Francisco v. CA; 4/16/95)

REASON FOR FIXING CUT OFF POINT AT A MAXIMUM OF SIX YEARS IMPRISONMENT FOR PROBATION.
Fixing the cut-off point at a maximum term of six (6) years imprisonment for probation is based on the
assumption that those sentenced to higher penalties pose too great a risk to society, not just because of
their demonstrated capability for serious wrongdoing but because of the gravity and serious
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 relation to Art. 25 of The
Revised Penal Code, and not necessarily those who have been convicted of multiple offenses in a single
proceeding who are deemed to be less perverse. Hence, the basis of the disqualification is principally

the gravity of the offense committed and the concomitant degree of penalty imposed. Those sentenced
to a maximum term not exceeding six (6) years are not generally considered callous, hard core criminals,
and thus may avail of probation

VIOLATION OF RA 6425, A VALID CAUSE FOR DISMISSAL IN SERVICE IN THE GOVERNMENT DESPITE
PROBATION
Drug-pushing, as a crime, has been variously condemned as "an especially vicious crime," "one of the
most pernicious evils that has ever crept into our society." For those who become addicted to it "not
only slide into the ranks of the living dead, what is worse, they become a grave menace to the safety of
law-abiding members of society," while "peddlers of drugs are actually agents of destruction. The
deserve no less than the maximum penalty [of death]."
There is no doubt that drug-pushing is a crime which involves moral turpitude and implies "every thing
which is 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 or to society in
general, contrary to the accepted rule of right and duty between man and man." Indeed nothing is more
depraved than for anyone to be a merchant of death by selling prohibited drugs, an act which, as this
Court said in one case,"often breeds other crimes. It is not what we might 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, and similar offenses have been committed by persons
under the influence of dangerous drugs, or while they are 'high.' While spreading such drugs, the drugpusher is also abetting, through his agreed and irresponsibility, the commission of other crimes." The
image of the judiciary is 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 forgotten that unlike pardon probation does not obliterate the crime of which the person under
probation has been convicted. The reform and rehabilitation of the probationer cannot justify his
retention in the government service. He may seek to reenter government service, but only after he has
shown that he is fit to serve once again. It cannot be repeated too often that a public office is a public
trust, which demands of those in its service the highest degree of morality. (OCA v. Librado 260 SCRA
624, 8/22/96)

PETITIONER MAY STILL EXHORT OFFENDER TO PERFORM CERTAIN ACTS DESPITE DISCHARGE FROM
PROBATION IN CERTAIN CASES
Petitioner Arthur M. Cuevas, Jr.'s discharge from probation without any infraction of the attendant
conditions therefor and the various certifications attesting to his righteous, peaceful and civic-oriented
character prove that he has taken decisive steps to purge himself of his deficiency in moral character
and atone for the unfortunate death of Raul I. Camaligan. The Court is prepared to give him the benefit
of the doubt, taking judicial notice of the general tendency of the youth to be rash, temerarious and

uncalculating. Let it be stressed to herein petitioner that the lawyer's oath is not a mere formality
recited for a few minutes in the glare of flashing cameras and before the presence of select 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 paraphrase Mr. Justice Padilla's comment in
the sister case of Re: Petition of Al Argosino To Take The Lawyer's Oath, Bar Matter No. 712, March 19,
1997, "[t]he Court sincerely hopes that" Mr. Cuevas, Jr., "will continue with the assistance he has been
giving to his community. As a lawyer he will now be in a better position to render legal and other
services to the more unfortunate members of society". (In Re: Cuevas, Jr.; 1/27/98)

EXPIRATION OF PERIOD OF PROBATION IS NOT TERMINATION, ORDER OF COURT REQUIRED

The mere expiration of the period for probation does not, ipso facto, terminate the probation. Probation
is not co-terminus with its period, there must be an order from the Court of final discharge, terminating
the probation. If the accused violates the condition of the probation before the issuance of said order,
the probation may be revoked by the Court (Manuel Bala v. Martinez, 181 SCRA 459).

ANTI-FENCING LAW
OF 1979 (PD NO. 1612)
DEFINITION
Fencing as defined in Sec. 2 of PD No. 1612 (Anti-Fencing Law) is the act of any person who, with intent
to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of,
or shall buy and sell, or in any manner deal in any article, item, object or anything of value which he
knows or should be known to him, or to have been derived from the proceeds of the crime of robbery or
theft. (Dizon-Pamintuan vs. People, GR 111426, 11 July 94).

BRIEF HISTORY OF PD 1612 OR THE ANTI-FENCING LAW

Presidential Decree No. 1612 or commonly known as the Anti-Fencing Law of 1979 was enacted under
the authority of therein President Ferdinand Marcos. The law took effect on March 2, 1979. The
Implementing Rules and Regulations of the Anti-Fencing Law were subsequently formulated and it took
effect on June 15, 1979.
THE PURPOSE OF ENACTING PD 1612
The Anti-Fencing Law was made to curtail and put an end to the rampant robbery of government and
private properties. With the existence of "ready buyers", the "business" of robbing and stealing have

become profitable. Hence, a law was enacted to also punish those who buy stolen properties. For if
there are no buyers then the malefactors could not profit from their wrong doings.

WHAT IS FENCING LAW AND HOW IT CAN BE COMMITTED

"Fencing" is the act of any person who, with intent to gain for himself or for another, shall buy receive,
possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in
any article, item, object or anything of value which he knows, or should be known to him, to have been
derived from the proceeds of the crime of robbery or theft. A "Fence" includes any person, firm,
association corporation or partnership or other organization who/ which commits the act of fencing.

WHO ARE LIABLE FOR THE CRIME OF FENCING; AND ITS PENALTIES:
The person liable is the one buying, keeping, concealing and selling the stolen items. If the fence is a
corporation, partnership, association or firm, the one liable is the president or the manager or the
officer who knows or should have know the fact that the offense was committed.
The law provide for penalty range for persons convicted of the crime of fencing. Their penalty depends
on the value of the goods or items stolen or bought:
a. The penalty of prision mayor, if the value of the property involved is more than 12,000 pesos but not
exceeding 22,000 pesos; if the value of such property exceeds the latter sum, the penalty provided in
this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000
pesos; but the total penalty which may be imposed shall not exceed twenty years. In such cases, the
penalty shall be termed reclusion temporal and the accessory penalty pertaining thereto provided in the
Revised Penal Code shall also be imposed.
b. The penalty of prision correccional in its medium and maximum periods, if the value of the property
robbed or stolen is more than 6,000 pesos but not exceeding 12, 000 pesos;
c. The penalty of prision correccional in its minimum and medium periods, if the value of the property
involved is more than 200 pesos but not exceeding 6,000 pesos;
d. The penalty of arresto mayor in its medium period to prision correccional in its minimum period, if the
value of the property involved is over 50 but not exceeding 200 pesos;
e. The penalty of arresto mayor in its medium period if such value is over five (5) pesos but not
exceeding 50 pesos.
f. The penalty of arresto mayor in its minimum period if such value does not exceed 5 pesos.

RULES REGARDING BUY AND SELL OF GOODS PARTICULARLY SECOND HAND GOODS
The law requires the establishment engaged in the buy and sell of goods to obtain a clearance or permit
to sell "used 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.
The Implementing Rules provides for the guidelines of issuance of clearances or permits to sell used or
secondhand items. It provided for the definition of the following terms:
1. "Used secondhand article" shall refer to any goods, article, items, object or anything of value obtained
from an unlicensed dealer or supplier, regardless of whether the same has actually or in fact been used.
2. "Unlicensed dealer/supplier" shall refer to any persons, partnership, firm, corporation, association or
any other entity or establishment not licensed by the government to engage in the business of dealing in
or of supplying the articles defined in the preceding paragraph;
3. "Store", "establishment" or "entity" shall be construed to include any individual dealing in the buying
and selling used secondhand articles, as defined in paragraph hereof;
4. "Buy and Sell" refer to the transaction whereby one purchases used secondhand articles for the
purpose of resale to third persons;
5. "Station Commander" shall refer to the Station Commander of the Integrated National Police within
the territorial limits of the town or city district where the store, establishment or entity dealing in the
buying and selling of used secondhand articles is located.

PROCEDURE FOR SECURING PERMIT/CLEARANCE

The Implementing Rules provided for the method of obtaining clearance or permit. No fee will be
charged for the issuance of the clearance/permit. Failure to secure clearance/permit shall be punished
as a fence, that may result to the cancellation of business license.
1. The Station Commander shall require the owner of a store or the President, manager or responsible
officer in having in stock used secondhand articles, to submit an initial affidavit within thirty (30) days
from receipt of notice for the purpose thereof and subsequent affidavits once every fifteen (15) days
within five (5) days after the period covered, which shall contain:
a. complete inventory of such articles including the names and addresses from whom the articles were
acquired.
b. Full list of articles to be sold or offered for sale including the time and place of sale
c. Place where the articles are presently deposited.

The Station Commander may, require the submission of an affidavit accompanied by other documents
showing proof of legitimacy of acquisition.
2. Those who wish to secure the permit/clearance, shall file an application with the Station Commander
concerned, which states:
a. name, address and other pertinent circumstances
b. article to be sold or offered for sale to the public and the name and address of the unlicensed dealer
or supplier from whom such article was acquired.
c. Include the receipt or document showing proof of legitimacy of acquisition.
3. The Station Commander shall examine the documents attached to the application and may require
the presentation of other additional documents, if necessary, to show satisfactory proof of the
legitimacy of acquisition of the article, subject to the following conditions:
a. if the Station Commander is not satisfied with the proof of legitimacy of acquisition, he shall cause the
publication of the notice, at the expense of the one seeking clearance/permit, in a newspaper of general
circulation for two consecutive days, stating:
> articles acquired from unlicensed dealer or supplier
> the names and addresses of the persons from whom they were acquired
> that such articles are to be sold or offered for sale to the public at the address of the store,
establishment or other entity seeking the clearance/permit.
4. If there are no newspapers in general circulation, the party seeking the clearance/permit shall, post a
notice daily for one week on the bulletin board of the municipal building of the town where the store,
firm, establishment or entity is located or, in the case of an individual, where the articles in his
possession are to be sold or offered for sale.
5. If after 15 days, upon expiration of the period of publication or of the notice, no claim is made to any
of the articles enumerated in the notice, the Station Commander shall issue the clearance or permit
sought.
6. If before expiration of the same period for the publication of the notice or its posting, it shall appear
that any of the articles in question is stolen property, the Station Commander shall hold the article in
restraint as evidence in any appropriate case to be filed.
Articles held in restraint shall kept and disposed of as the circumstances of each case permit. In any case
it shall be the duty of the Station Commander concerned to advise/notify the Commission on Audit of
the case and comply with such procedure as may be proper under applicable existing laws, rules and
regulations.
7. The Station Commander shall, within seventy-two (72) hours from receipt of the application, act
thereon by either issuing the clearance/permit requested or denying the same. Denial of an application
shall be in writing and shall state in brief the reason/s thereof.
8. Any party not satisfied with the decision of the Station Commander may appeal the same within 10
days to the proper INP (now PNP) District Superintendent and further to the INP (now PNP) Director.
The decision of the Director can still be appealed top the Director-General, within 10 days, whose
decision may be appealed with the Minister (now Secretary) of National Defense, within 15 days, which
decision is final.

PRESUMPTION
Mere possession of any good, article, item, object or anything fo value which has been the subject of
robbery or thievery, shall be prima facie evidence of fencing.
ELEMENTS
1. A crime of robbery or theft has been committed;
2. The accused, who is not a principal or accomplice in the commission of the crime of robbery or theft,
buys, receives, possess, keeps, acquires, conceals, sells, or disposes, or buys and sells, or in any manner
deals in any article, item, object or anything of value, which has been derived from the proceeds of the
said crime;
3. The accused knows or should have known that the said article, item, or object or anything of value
has been derived from the proceeds of the crime of robbery or theft; and
4. There is, on the part of the accused, intent to gain for himself or for another. (Dizon-Pamintuan vs
People, GR 111426, 11 July 94)
As regards the first element, the crime of robbery or theft should have been committed before crime of
fencing can be committed. The person committing the crime of robbery or theft, may or may not be the
same person committing the crime of fencing. As in the case of D.M. Consunji, Inc., vs. Esguerra,
quantities of phelonic plywood were stolen and the Court held that qualified theft had been committed.
In People vs. Lucero there was first a snatching incident, where the bag of Mrs. Maripaz Bernard
Ramolete was snatch in the public market of Carbon, Cebu City, where she lost a Chinese Gold Necklace
and pendant worth some P4,000.00 to snatchers Manuel Elardo and Zacarias Pateras. The snatchers
sold the items to Manuel Lucero. Consequently, Lucero was charged with violation of the Anti-Fencing
Law. However, in this case, no eyewitness pointed to Lucero as the perpetrator and the evidence of the
prosecution was not strong enough to convict him.
The second element speaks of the overt act of keeping, buying, receiving, possessing, acquiring,
concealing, selling or disposing or in any manner deals with stolen items. It is thus illustrated in the case
of Lim vs. Court of Appeals, where the accused, Juanito Lim stored and kept in his bodega and
subsequently bought or disposed of the nine (9) pieces of stolen tires with rims owned by Loui Anton
Bond.
The accused known or should have known that the goods were stolen. As pointed out in the case of
People vs. Adriatico, the court in convicting Norma Adriatico, stated that it was impossible for her to
know that the jewelry were stolen because of the fact that Crisilita was willing to part with a
considerable number of jewelry at measly sum, and this should have apprised Norma of the possibility
that they were stolen goods. The approximate total value of the jewelry were held to be at P20,000.00,
and Norma having bought it from Crisilita for only P2,700. The court also considered the fact that Norma

engage in the business of buying and selling gold and silver, which business is very well exposed to the
practice of fencing. This requires more than ordinary case and caution in dealing with customers. As
noted by the trial court:
". . . the Court is not inclined to accept the accused's theory of buying in good faith and disclaimer of
ever seeing, much more, buying the other articles. Human experience belies her allegations as no
businessman or woman at that, would let go of such opportunities for a clean profit at the expense of
innocent owners.
The Court in convicting Ernesto Dunlao Sr., noted that the stolen articles composed of farrowing crates
and G.I. pipes were found displayed on petitioner's shelves inside his compound. (Dunalao, Sr. v. CA,
08/22/96)
In the case of People v. Muere (G.R.12902, 10/18/94), the third element was not proven. This case
involves the selling of alleged stolen Kenwood Stereo Unit in the store Danvir Trading, owned by the
spouses Muere. The store is engaged in buying and selling of second hand merchandise located at Pasay
Road, Makati. The said stereo was bought from Wynn's Audio, an existing establishment. The court held
that 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 displayed for sale in their
store. These actions are not indicative of a conduct of a guilty person.
On the same vein, the third element did not exist in the case of D.M. Consunji, Inc. (Consunji v. Esguerra,
07/30/96) where the subject of the court action are the alleged stolen phelonic plywood owned by D.M.
Consunji, Inc., later found to be in the premises of MC Industrial Sales and Seato trading Company,
owned respectively by Eduardo Ching and the spouses Sy. Respondents presented sales receipts
covering their purchase of the items from Paramount Industrial, which is a known hardware store in
Caloocan, thus they had no reason to suspect that the said items were products of theft.
The last element is that there is intent to gain for himself or for another. However, intent to gain need
not be proven in crimes punishable by a special law such as the Anti-Fencing Law. The crimes punishable
by special laws are called "acts mala prohibita". The rule on the subject is that in acts mala prohibita, the
only inquiry is that, has the law been violated? (in Gatdner v. People, as cited in US v. Go Chico, 14 Phils.
134) When the act is prohibited by law, intent is immaterial.
Likewise, dolo or deceit is immaterial in crimes punishable by special statute like the Anti-Fencing Law. It
is the act itself which constitutes the offense and not the motive or intent. Intent to gain is a mental
state, the existence if which is demonstrated by the overt acts of the person. The mental state is
presumed from the commission of an unlawful act. (Dunlao v. CA) again, intent to gain is a mental state,
the existence of which is demonstrated by the overt acts of person, as the keeping of stolen items for
subsequent selling.
A FENCE MAY BE PROSECUTED UNDER THE RPC OR PD 1612

The state may thus choose to prosecute him either under the RPC or PD NO. 1612 although the
preference for the latter would seem inevitable considering that fencing is a malum prohibitum, and PD
No. 1612 creates a presumption of fencing and prescribes a higher penalty based on the value of the
property. (supra)

MERE POSSESSION OF STOLEN ARTICLE PRIMA FACIE EVIDENCE OF FENCING

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 be prima facie evidence of
fencing it follows that the 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 innocence enshrined in the fundamental law.

DISTINCTION BETWEEN FENCING AND ROBBERY

The law on fencing does not require the accused to have participation in the criminal design to commit
or to have been in any wise involved in the commission of the crime of robbery or theft. Neither is the
crime of robbery or theft made to depend on an act of fencing in order that it can be consummated.
(People v De Guzman, GR 77368).
Robbery is the taking of personal property belonging to another, with intent to gain, by means of
violence against or intimidation of any person, or using force upon anything.
On the other hand, fencing is the act of any person who, with intent to gain for himself or for another,
shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other
manner deal in any article, item, object or anything of value which he knows, or shall be known to him,
to have been derived from the proceeds of the crime of robbery or theft.

FENCING AS A CRIME INVOLVING MORAL TURPITUDE.

In violation of the Anti-Fencing Law, actual knowledge by the "fence" of the fact that property received
is stolen displays the same degree of malicious deprivation of one's rightful property as that which
animated the robbery or theft which by their very nature are crimes of moral turpitude. (Dela Torre v.
COMELEC 07/05/96)
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 the thief or the actual
perpetrators, and the other as the fence, differs in point in time and degree but both invaded one's

peaceful dominion for gain. (Supra) Both crimes negated the principle of each person's duty to his
fellowmen not to appropriate things that they do not own or return something acquired by mistake or
with malice. This signifies moral turpitude with moral unfitness.
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 disqualification under Sec. 40 of the
Local Government Code, of persons running for elective position -"Sec. 40 Disqualifications - (a) Those
sentenced by final judgement for an offense involving moral turpitude..."
Dela Torre was disqualified because of his prior conviction of the crime of fencing wherein he admitted
all the elements of the crime of fencing.

ESSENCE OF VIOLATION OF PD 1612, SEC. 2 OR ANTI-FENCING

PD 1612, Section 2 thereof requires that the offender buys 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 or theft. (Caoili v CA; GR 128369, 12/22/97)

PROOF OF PURCHASE WHEN GOODS ARE IN POSSESSION OF OFFENDER NOT NECESSARY IN ANTIFENCING
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.
It was incumbent upon petitioner to overthrow this presumption by sufficient and convincing evidence.
(Caoili v. CA; GR 128369, 12/22/97)

BATAS PAMBANSA BLG. 22

BOUNCING CHECKS LAW

ACTS PUNISHABLE:
a. any person who makes or draws and issues any check to apply on account or for value, knowing at the
time of issue that he does not have sufficient funds in or credit with the drawee bank, for the payment
of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank
for insufficiency of funds, or credit, or would have been dishonored for the same reason had not the
drawee, without any valid reason, ordered the bank to stop payment.

b. Any person who having sufficient funds in or credit with the drawee bank when he makes or draws
and issues a check, 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 days from date appearing thereon, for which reason, it
is dishonored by the drawee bank.
HOW TO ESTABLISH GUILT OF ACCUSED IN BP 22
To establish her guilt, it is indispensable that the checks she issued for which she was subsequently
charged, be offered 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 her
letter alone. Nevertheless, despite this incorrect interpretation of a rule on evidence, we do not find the
same as sufficiently constitutive of the charges of gross ignorance of the law and of knowingly rendering
an unjust decision. Rather, it is at most an error in judgment, for which, as a general rule, he cannot be
held administratively liable. In this regard, we reiterate the prevailing rule in our jurisdiction as
established by current jurisprudence. (Gutierrez v Pallatao; 8/8/98)

NOTICE, AN INDISPENSABLE REQUISITE FOR PROSECUTION

Section 3 of BP 22 requires that the holder of the check or the drawee bank, must notify the drawer of
the check that the same was dishonored, if the same is presented within ninety days from date of
issuance, and upon notice the drawer has five days within which to make arrangements for the payment
of the check or pay the same in full.

DUTY OF THE DRAWEE BANK

The drawee bank has the duty to cause to be written, printed or stamped in plain language thereon, or
attached thereto the reason for the drawees dishonor or refusal to pay the same. If the drawee bank
fails to do so, prosecution for violation of BP 22 may not prosper.
RULE IN CASE OF DISHONOR DUE TO STOP PAYMENT
The drawee bank has not only the duty to indicate that the drawer stopped the payment and the reason
for the stop payment. The drawee bank is further obligated to state whether the drawer of the check
has sufficient funds in the bank or not.

AGREEMENT OF PARTIES REGARDING THE CHECK IS NOT A DEFENSE

In the case of People vs Nitafan, 215 SCRA, the agreement of the parties in respect to the issuance of the
check is inconsequential or will not affect the violation of BP 22, if the check is presented to the bank

and the same was dishonored due to insufficiency of funds.

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, especially that the drawer, upon
signing of the promissory note, closed his account. Said check is still with consideration. (Caram
Resources v. Contreras)
In this case, the Judge was even held administratively liable.

CHECK DRAWN AGAINST A DOLLAR ACCOUNT. RULE:

A check drawn against a dollar account in a foreign country is still violative of the provisions of BP 22 so
long as the check is issued, delivered or uttered in the Philippines, even if the same is payable outside of
the Philippines (De Villa v. CA)
GUARANTEE CHECKS, DRAWER, STILL LIABLE
The mere act of issuing a worthless check is punishable. Offender cannot claim good faith for it is malum
prohibitum.
In the case of Magno vs CA, when accused issued a check as warranty deposit for lease of certain
equipment, even knowing that he has no funds or insufficient funds in the bank is not liable, if the lessor
of the equipment pulled out the loaned equipment. The drawer has no obligation to make good the
check because there is no more deposit to guaranty.

ISSUANCE OF GUARANTEE CHECKS WHICH WAS DISHONORED IN VIOLATION AND PURPOSE OF THE LAW
The intention of the framers of BP 22 is to make a mere act of issuing a worthless check malum
prohibitum. In prosecutions for violation of BP 22, therefore, prejudice or damage is not prerequisite for
conviction.
The agreement surrounding the issuance of the checks need not be first locked into, since the law has
provided that the mere issuance of any kind of check; regardless of the intent of the parties, i.e.,
whether the check is intended merely to serve as guarantee or deposit, but which checks is
subsequently dishonored, makes the person who issued the check liable. (Lazaro vs CA, et al., GR
105461).

CAN A PERSON BE HELD LIABLE FOR ISSUING A CHECK WITH SUFFICIENT FUNDS FOR VIOLATION OF BP
22?
Yes. Paragraph 2 of Section 1 of BP 22 provides:
The same penalty shall be imposed upon any person who having sufficient funds in or credit with the
drawee bank when he makes or draws and issues a check, 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 90 days from the
date appearing thereon, for which reason, it is dishonored by the drawee bank.

RULE ON RENDERING UNJUST JUDGMENT, IGNORANCE, ETC. BY A JUDGE

In the case of De la Cruz vs. Concepcion this Court declared:
"Mere errors in the appreciation of evidence, unless so gross and patent as to produce an inference of
ignorance or bad faith, or of knowing rendition of an unjust decision, are irrelevant and immaterial in an
administrative proceeding against him. No one, called upon to try facts or interpret the law in the
process of administering justice, can be infallible in his judgment. All that is expected of him is that he
follow the rules prescribed to ensure a fair and impartial hearing, assess the different factors that
emerge therefrom and bear on the issues presented, and on the basis of the conclusions he finds
established, with only his conscience and knowledge of the law to guide him, adjudicate the case
accordingly." (Gutierrez v Pallatao; Adm. Matter #RTJ-95-1326, July 8, 1998)

DIFFERENCE BETWEEN ESTAFA AND VIOLATION OF BP 22

In the crime of estafa, deceit and damage are essential elements of the offense and have to be
established with 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. Rather, the
elements of B.P. Blg. 22 are (a) the making, drawing and issuance of any check to apply to account or for
value; (b) the maker, drawer or issuer knows at the time of issuance that he does not have sufficient
funds in or credit with the drawee bank for the payment of such check in full upon its presentment; and,
(c) the check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or
would have been dishonored for the same reason had not the drawer, without valid reason, ordered the
bank to stop payment. (Uy v Court of Appeals, GR 119000, July 28, 1997)

JURISDICTION IN BP 22 CASES

In respect of the Bouncing checks case, the offense also appears to be continuing in nature. It is true
that the offense is committed by the very fact of its performance (Colmenares vs. Villar, No. L-27126,
May 29, 1970, 33 SCRA 186); and 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.
Veridiano, II, No. L-62243, 132 SCRA 523). The case, therefore, could have been filed also in Bulacan. As
held in Que vs. People of the Philippines, G.R. Nos. 75217-18, September 11, 1987 "the determinative
factor (in determining venue) is the place of the issuance of the check". However, it is likewise true that
knowledge on the part of the maker or drawer of the check of the insufficiency of his funds, which is an
essential ingredient of the offense is by itself a continuing eventuality, whether the accused be within
one territory or another (People vs. Hon. Manzanilla, G.R. Nos. 66003-04, December 11, 1987).
Accordingly, jurisdiction to take cognizance of the offense also lies in the Regional Trial Court of
Pampanga.
And, as pointed out in the Manzanilla case, jurisdiction or venue is determined by the allegation in the
Information, which are controlling (Arches vs. Bellosillo, 81 Phil. 190, cited in Tuzon vs. Cruz, No. L27410, August 28, 1975, 66 SCRA 235). The Information filed herein specifically alleges that the crime
was committed in San Fernando Pampanga and therefore within the jurisdiction of the Court below.
This ruling was reiterated in the case of Lim vs. Rodrigo, 167 SCRA 487, where it was held:
Besides, it was held in People v. Hon. Manzanilla, supra, that as "violation of the bad checks act is
committed when one 'makes or draws and issues any check [sic] to apply on account or for value,
knowing at the time issue that he does not have sufficient funds' or having sufficient funds in or 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 the date appearing thereon,
for which reason it is dishonored by the drawee bank," "knowledge" is an essential ingredient of the
offense charge. As defined by the statute, knowledge, is, by itself, a continuing eventuality, whether the
accused be within one territory or another. This being the case, the Regional Trial Court of Baguio City
has jurisdiction to try Criminal Case No. 2089-R (688).
Moreover, we ruled in the same case of People v. Hon. Manzanilla, reiterated in People vs. Grospe,
supra, that jurisdiction or venue is determined by the allegations in the information. The allegation in
the information under consideration that the offense was committed in Baguio City is therefore
controlling and sufficient to vest jurisdiction upon the Regional Trial Court of Baguio City.
In the case at bench it appears that the three (3) checks were deposited in Lucena City. As to the second
error wherein the petitioner asserted that the checks were issued "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-existing obligation,
the Court of Appeals pointed out that the petitioner obviously failed to distinguish a violation of B.P. Blg.
22 from estafa under Article 315 (2) [d] of the Revised Penal Code. It further stressed that B.P. Blg. 22
applies even in cases where dishonored checks were issued as a guarantee or for deposit only, for it
makes no distinction as to whether the checks within its contemplation are issued in payment of an

obligation or merely to guarantee the said obligation and the history of its enactment evinces the
definite legislative intent to make the prohibition all-embracing. (Ibasco vs CA, 9/5/96)

ACTUAL KNOWLEDGE OF INSUFFICIENCY OF FUNDS ESSENTIAL IN BP 22

Knowledge of insufficiency of funds or credit in the drawee bank for the payment of a check upon its
presentment is an essential element of the offense. There is a prima facie presumption of the existence
of this element from the fact of drawing, issuing or making a check, the payment of which was
subsequently refused for insufficiency of funds. It is important to stress, however, that this is not a
conclusive presumption that forecloses or precludes the presentation of evidence to the contrary. (Lim
Lao v CA; 6/20/97)

WHEN LACK OF KNOWLEDGE AND LACK OF POWER TO FUND THE CHECKS IN CASES OF BP 22 A DEFENSE
After a thorough review of the case at bar, the Court finds that Petitioner Lina Lim Lao did not have
actual knowledge of the insufficiency of funds in the corporate accounts at the time she affixed her
signature to the checks involved in this case, at the time the same were issued, and even at the time the
checks were subsequently dishonored by the drawee bank.
The scope of petitioner's duties and responsibilities did not encompass the funding of the corporation's
checks; her duties were limited to the marketing department of the Binondo branch. Under the
organizational structure of Premiere Financing Corporation, funding of checks was the sole responsibility
of the Treasury Department. (Lim Lao v CA; 6/20/97

LACK OF ADEQUATE NOTICE OF DISHONOR, A DEFENSE

There can be no prima facie evidence of knowledge of insufficiency of funds in the instant case because
no notice of dishonor was actually sent to or received by the petitioner.
The notice of dishonor may be sent by the offended party or the drawee bank. The trial court itself
found absent a personal notice of dishonor to Petitioner Lina Lim Lao by the drawee bank based on the
unrebutted testimony of Ocampo "(t)hat the checks bounced when presented with the drawee bank but
she did not inform anymore the Binondo branch and Lina Lim Lao as there was no need to inform them
as the corporation was in distress." The Court of Appeals affirmed this factual finding. Pursuant to
prevailing jurisprudence, this finding is binding on this Court. (Lim Lao v CA; 6/20/97)

ANTI-GRAFT & CORRUPT PRACTICES ACT

(RA NO 3019)

ANTI-GRAFT AND CORRUPT PRACTICES ACT

Corrupt practices of public officers.
(a) Persuading, inducing or influencing another public officer to perform an act constituting a violation of
rules and regulations duly promulgated by competent authority or an offense in connection with the
official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such
violation or offense.
(b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for
himself or for any other person, in connection with any contract or transaction between the
Government and any other part, wherein the public officer in his official capacity has to intervene under
the law.
(c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit,
for himself or for another, from any person for whom the public officer, in any manner or capacity, has
secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the
help given or to be given, without prejudice to Section thirteen of this Act.
(d) Accepting or having any member of his family accept employment in a private enterprise which has
pending official business with him during the pendency thereof or within one year after its termination.
(e) Causing any undue injury to any party, including the Government, or giving any private party any
unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial
functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision
shall apply to officers and employees of offices or government corporations charged with the grant of
licenses or permits or other concessions.
( f ) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a
reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly,
from any person interested in the matter some pecuniary or material benefit or advantage, or for the
purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any
other interested party.
(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly
disadvantageous to the same, whether or not the public officer profited or will profit thereby.
(h) Director or indirectly having financing or pecuniary interest in any business, contract or transaction in
connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by
the Constitution or by any law from having any interest.

(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 is a member, and which
exercises discretion in such approval, even if he votes against the same or does not participate in the
action of the board, committee, panel or group.
Interest for personal gain shall be presumed against those public officers responsible for the approval of
manifestly unlawful, inequitable, or irregular transaction or acts by the board, panel or group to which
they belong.
( j) Knowingly approving or granting any license, permit, privilege or benefit in favor of any person not
qualified for or not legally entitled to such license, permit, privilege or advantage, or of a mere
representative or dummy of one who is not so qualified or entitled.
(k) Divulging valuable information of a confidential character, acquired by his office or by him on
account of his official position to unauthorized persons, or releasing such information in advance of its
authorized release date.
UNEXPLAINED WEALTH, MEANING
Prima facie evidence of and dismissal due to unexplained wealth. If in accordance with the provisions of
RA 1379, a public official has been found to have acquired during his incumbency, whether in his name
or in the name of other persons, an amount of property and/or money manifestly out of proportion to
his salary and to his other lawful income, that fact shall be a ground for dismissal or removal.
Note: Unsolicited gifts or presents of small or insignificant value shall be offered or given as a mere
ordinary token of gratitude or friendship according to local customs or usage shall be exempted from
the provision of this act.
MEANING OF CAUSING UNDUE INJURY
The act of giving any private party any unwarranted benefit, advantage or preference is not an
indispensable element of causing any undue injury to any part, although there may be instances where
both elements concur. (Santiago vs Garchitorena, et al., 2 Dec. 93).
In Mejoroda v Sandiganbayan, the Supreme Court has ruled that the offender in causing undue injury
does not refer only to those who are in charge of giving permits, licenses or concessions but all acts of
public officers or employees which have caused undue injury to others.

ELEMENTS OF NEGLECT OF DUTY UNDER SEC. 3 OF RA 3019

a. the offender is a public officer;
b. the said officer has neglected or has refused to act without sufficient justification after due demand

or request has been made upon him;

c. reasonable time has elapsed from such demand or request without the public officer having acted on
the matter pending before him;
d. such failure to so act is for the purpose of obtaining directly or indirectly from any person interested
in the matter some pecuniary or material benefit or advantage in favor of an interested party or
discriminating against another. Coronado v Sandiganbayan.

WHERE PUBLIC OFFICER ACTED WITH MANIFEST PARTIALITY, EVIDENT BAD FAITH, OR INEXCUSABLE
NEGLIGENCE
Sec. 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:
xxx xxx xxx
(e). Causing any undue injury to any party, including the Government, or giving any private party any
unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial
functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision
shall apply to officers and employees of offices or government corporations charged with the grant of
licenses or permits or other concessions.

VIOLATION OF SECTION 3 (E) OF RA 3019 REQUIRES PROOF OF THE FOLLOWING FACTS, VIZ:
a. the accused is a public officer discharging administrative or official functions or private persons
charged in conspiracy with them;
b. the public officer committed the prohibited act during the performance of his official duty or in
relation to his public position;
c. the public officer acted with manifest partiality evident bad faith or gross, inexcusable negligence; and
d. his action caused undue injury to the government or any private party, or gave any party any
unwarranted benefit, advantage or preference to such parties.

CAUSING UNDUE INJURY UNDER SEC. 3, LETTER (e) OF RA 3019. MEANING.

Section 3 enumerates in eleven subsections the corrupt practices of any public officer declared unlawful.
Its reference to any public officer is without distinction or qualification and it specifies the acts declared

unlawful. We agree with the view adopted by the Solicitor General that the last inclusion of officers and
employees of offices or government corporations which, under the ordinary concept of public officer
may not come within the term. It is a strained construction of the provision to read it as applying
exclusively to public officers charged with the duty of granting license or permits or other concessions.
(Mejorada v Sandiganbayan, 151 SCRA 399).

SUSPENSION UNDER R.A. 3019 MANDATORY BUT COURTS ARE ALLOWED TO DETERMINE
WHETHER INFORMATION IS VALID OR NOT
It is well settled that Section 13 of RA 3019 makes it mandatory for the Sandiganbayan (or the Court) to
suspend any public officer against whom a valid information charging violation of this law, Book II, Title
7 of the RPC, or any offense involving fraud upon government or public funds or 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 office to intimidate witnesses or frustrate
his prosecution or continue committing malfeasance in office. All that is required is for the court to
make a finding that the accused stands charged under a valid information for any of the abovedescribed crimes for the purpose of granting or denying the sought for suspension. (Bolastig vs.
Sandiganbayan, G.R. No. 110503 [August 4, 1994], 235 SCRA 103).In the same case, the Court held that
"as applied to criminal prosecutions under RA 3019, preventive suspension will last for less than ninety
(90) days only if the case is decided within that period; otherwise, it will continue for ninety (90) days."
(Conducto v. Monzon; A.M. No. MTJ-98-1147, July 2, 1998)

PUBLIC OFFICER MAY BE SUSPENDED FROM HIS PRESENT POSITION EVEN IF THE CRIME WHICH HE IS
BEING CHARGED WAS COMMITTED DURING HIS PREVIOUS TERM
Judge Monzon's contention denying complainant's Motion for Suspension because "offenses committed
during the previous term (is) not a cause for removal during the present term" is untenable. In the case
of Rodolfo E. Aguinaldo vs. Hon. Luis Santos and Melvin Vargas, 212 SCRA 768, the Court held that "the
rule is that a public official cannot be removed for administrative misconduct committed during a prior
term since his re-election to office operates as a condonation of the officer's previous misconduct
committed during a prior term, to the extent of cutting off the right to remove him therefor. The
foregoing rule, however, finds no application to criminal cases . . ."
Likewise, it was specifically declared in the case of Ingco vs. Sanchez, G.R. No. L-23220, 18 December
1967, 21 SCRA 1292, that "The ruling, therefore, that 'when the people have 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 been guilty of any' refers only to an action for removal from
office and does not apply to a criminal case"
Clearly, even if the alleged unlawful appointment was committed during Maghirang's first term as
barangay chairman and the Motion for his suspension was only filed in 1995 during his second term, his

re-election is not a bar to his suspension as the suspension sought for is in connection with a criminal
case. (Conducto v. Monzon; A.M. No. MTJ-98-1147, July 2, 1998)

RE-ELECTION IN PUBLIC OFFICE EXTINGUISHING ONLY HIS ADMINISTRATIVE LIABILITY BUT

NOT HIS CRIMINAL LIABILITY
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, liability incurred by him during
his previous term of office, thus:
The ruling, therefore, that "when the people have elected a man to his 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 been guilty of any" refers only to an action for removal from office and does not
apply to criminal case, because a crime is a public wrong more atrocious in character than mere
misfeasance or malfeasance committed by a public officer in the discharge of his duties, and is injurious
not only to a person or group of persons but to the State as a whole. This must be the reason why Article
89 of the Revised Penal 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. Also, under
the Constitution, it is only the President who may grant the pardon of a criminal offense. (Conducto v.
Monzon; A.M. No. MTJ-98-1147, July 2, 1998)

PRE-CONDITION OF SUSPENSION (PREVENTIVE) UNDER SEC. 13, RA 3019

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 pre-condition thereof is the
existence of a valid information, determined at a pre-suspension hearing. Such a hearing is in accord
with the spirit of the law, considering the serious and far-reaching consequences of a suspension of a
public official even before his conviction, and the demands of public interest for a speedy determination
of the issues involved in the case. The purpose of the pre-suspension hearing is basically to determine
the validity of the information and thereby furnish the court with a basis to either suspend the accused
and proceed with the trial on the merits of the case, or refuse suspension of the latter and dismiss the
case, or correct any part of the proceeding which impairs its validity. The accused should be given
adequate opportunity to challenge the validity or regularity of the criminal proceedings against him; e.g.
that he has not been afforded the right to due preliminary investigation; that the acts imputed to him do
not constitute a specific crime (under R.A. 3019 or the Revised Penal Code) warranting his mandatory
suspension from office under Section 13 of the Act; or that the information is subject to quashal on any
of the grounds set out in Rule 117 of the Rules of Court. But once a proper determination of the validity
of the information has been made, it becomes the ministerial duty of the court to forthwith issue the
order of preventive suspension. The court has no discretion, for instance, to hold in abeyance the
suspension of the accused official on the pretext that the order denying the latter's motion to quash is

pending review before the appellate courts. (Segovia v. Sandiganbayan; GR 124067, Mar. 27, 1998)
GUIDELINES TO BE FOLLOWED IN PREVENTIVE SUSPENSION CASES
"In the leading case of Luciano, et al. vs. Mariano, et al. (L-32950, July 30, 1971, 40 SCRA 187), we have
set out the guidelines to be followed by the lower courts in the exercise of the power of suspension
under Section 13 of the law, to wit:
(c) By way of broad guidelines for the lower courts in the exercise of the power of suspension from
office of public officers charged under a valid information under the provisions of Republic Act No. 3019
or under the provisions of the Revised Penal Code on bribery, pursuant to section 13 of said Act, it may
be briefly stated that upon the filing of such information, the trial court should issue an order with
proper notice requiring the accused officer to show cause at a specific date of hearing why he should
not be ordered suspended from office pursuant to the cited mandatory provisions of the Act. Where
either the prosecution seasonably files a motion for an order of suspension or the accused in turn files a
motion to quash the information or challenges the validity thereof, such show-cause order of the trial
court would no longer be necessary. What is indispensable is that the trial court duly hear the parties at
a hearing held for determining the validity of the information, and thereafter hand down its ruling,
issuing the corresponding order of suspension should it uphold the validity of the information or
withhold such suspension in the contrary case.
(d) No specific rules need be laid down for such pre-suspension hearing. Suffice it to state that the
accused should be given a fair and adequate opportunity to challenge the validity of the criminal
proceedings against him, e.g., that he has not been afforded the right of due preliminary investigation,
the act for which he stands charged do not constitute a violation of the provisions of Republic Act No.
3019 or of the bribery provisions of the Revised Penal Code which would warrant his mandatory
suspension from office under Section 13 of the Act, or he may present a motion to 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 court or a criminal prosecution
for violation of the Anti-Graft Act or for bribery under a valid information requires at the same time that
the hearing be expeditious, and not unduly 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, then it shall be called upon to issue the suspension order upon its upholding the
validity of the information and setting the same for trial on the merits.' (Segovia v. Sandiganbayan)

WHEN MAY A PUBLIC OFFICER BE LIABLE FOR CAUSING UNDUE INJURY UNDER SEC. 3(e) of RA 3019
xxx xxx xxx
(c) Causing any undue injury to any party, including the Government, or giving any private party any
unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial

functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision
shall apply to officers and employees of offices or government corporations charged with the grant of
licenses or permits or other concessions."
To hold a person liable under this section, the concurrence of the following elements must be
established beyond reasonable doubt by the prosecution:
"(1) That the accused is a public officer or a private person charged in conspiracy with the former;
(2) That said public officer commits the prohibited acts during the performance of his or her official
duties or in relation to his or her public positions;
(3) That he or she causes undue injury to any party, whether the government or a private party; and
(4) That the public officer has acted with manifest partiality, evident bad faith or gross inexcusable
negligence." (Llorente v. Sandiganbayan; GR 122166, Mar. 11, 1998)

MEANING OF BAD FAITH UNDER SECTION 3(e) OF RA 3019

"Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some
moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent
or ill will; it partakes of the nature of fraud. (Spiegel v Beacon Participations, 8 NE 2nd Series 895, 1007).
It contemplates a state of mind affirmatively operating with furtive design or some motive of self
interest or ill will for ulterior purposes (Air France v. Carrascoso, 18 SCRA 155, 166-167). Evident bad
faith connotes a manifest deliberate intent on the part of the accused to do wrong or cause damage."
In Jacinto, evident bad faith was not appreciated because the actions taken by the accused were not
entirely without rhyme or reason; he refused to release the complainant's salary because the latter
failed to submit her daily time record; he refused to approve her sick-leave application because he
found out that she did not suffer any illness; and he removed her name from the plantilla because she
was moonlighting during office hours. Such actions were measures taken by a superior against an erring
employee who studiously ignored, if not defied, his authority. (Llorente v. Sandiganbayan)
WHEN OFFENDER IS NOT LIABLE UNDER SEC. 3(e) BUT UNDER SEC. (f) OF RA 3019
It would appear that petitioner's failure or refusal to act on the complainant's vouchers, or the delay in
his acting on them more properly falls under Sec. 3[f]:
"(f) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a
reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly,
from any person interested in the matter some pecuniary or material benefit or advantage, or for
purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any
other interested party."

Here, the neglect or refusal to act within a reasonable time is the criminal act, not the causing of undue
injury. Thus, its elements are:
"1) The offender is a public officer;
2) Said officer has neglected or has refused to act without sufficient justification after due demand or
request has been made on him;
3) Reasonable time has elapsed from such demand or request without the public officer having acted on
the matter 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 some pecuniary or material benefit or advantage in favor of an interested party, or
discriminating against another."
However, petitioner is not charged with a violation of Sec. 3[f]. Hence, further disquisition is not proper.
Neither may this Court convict petitioner under Sec. 3[f] without violating his constitutional right to due
process. (Llorente v. Sandiganbayan)
SUSPPENSION (PREVENTIVE) OF LOCAL OFFICIALS SHALL ONLY BE FOR 60 DAYS
On the other hand, we find merit in petitioner's second assigned error. The Sandiganbayan erred in
imposing a 90 day suspension upon petitioner for the single case filed against him. Under Section 63 (b)
of the Local Government Code, "any single preventive suspension of local elective officials shall not
extend beyond sixty (60) days." (Rios v. Sandiganbayan; GR 129913, Set. 26, 1997)

APPROVAL OF LEAVE OF ABSENCE NOT A BAR TO SUSPENSION

Since the petitioner is an incumbent public official charged in 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 lite must be obeyed. His approved leave of absence is not a bar to
his preventive suspension for as indicated by the Solicitor General, an approved leave, whether it be for
a fixed or indefinite period, may be cancelled or shortened at will by the incumbent. (Doromal v.
Sandiganbayan; GR 85468, Sepr. 7, 1989)

UNDUE DELAY IN PRELIMINARY INVESTIGATIONS VIOLATIVE OF DUE PROCESS AND A GROUND TO

DISMISS
After a careful review of the facts and circumstances of this case, we are constrained to hold that the
inordinate delay in terminating the preliminary investigation and filing the information in the instant
case is violative of the constitutionally guaranteed right of the petitioner to due process and to a speedy
disposition of the cases against him. Accordingly, the informations in Criminal Cases Nos. 10499, 10500,
10501, 10502 and 10503 should be dismissed. In view of the foregoing, we find it unnecessary to rule on

the other issues raised by petitioner. (Tatad v. Sandiganbayan)

DEATH PENALTY LAW

(RA 7659)

PROSTITUTES CAN BE A VICTIM OF RAPE

As to the suggestion that ANALIZA was a prostitute, that alone, even if it be conceded, cannot absolve
him of his liability for rape. First, prostitutes can be victims of rape. (People v. Alfeche)

REASON WHY DWELLING IS AN AGGRAVATING CIRCUMSTANCE

Dwelling is considered an aggravating circumstance because primarily of the sanctity of privacy the law
accords to human abode. The dwelling need not be owned by the victim. Thus, in People v. Basa,
dwelling was appreciated, although the victims were killed while sleeping as guests in the house of
another. As aptly stated in People v. Balansit: "[O]ne does not lose his right of privacy where he is
offended in the house of another because as [an] invited guest [or a housemaid as in the instant case],
he, the stranger, is sheltered by the same roof and protected by the same intimacy of life it affords. It
may not be his house, but it is, even for a brief moment, "home" to him. He is entitled to respect even
for that short moment." (People v. Alfeche)

WHEN RELATIONSHIP IS NOT AN ALTERNATIVE CIRCUMSTANCE UNDER ART. 15 OF THE RPC

Clearly then, the father-daughter relationship in rape cases, or between accused and Relanne, in this
case, has been treated by Congress in the nature of a special circumstance which makes the imposition
of the death penalty mandatory. Hence, relationship as an alternative circumstance under Article 15 of
the Revised Penal Code, appreciated as an aggravating circumstance, should no longer be applied in
view of the amendments introduced by R.A. No. 7659. It may be pointed, however, that without the
foregoing amendment, relationship would still be an aggravating circumstance in the crimes of rape
(Article 335) and acts of lasciviousness (Article 336). 57
If relationship in the instant case were to be appreciated under Article 15 of the Revised Penal Code, the
penalty imposable on accused then would not be death, but merely 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 commission of the rape which could bring the crime
under any provision of Article 335 which imposes a penalty higher than reclusion perpetua or of
reclusion perpetua to death. (People v. Manyuhod, Jr.)

WHEN OFFENDER IS STEP GRANDPARENT, HE IS NOT CONSIDERED AN ASCENDANT UNDER RA 8353 AND
RA 7659
The trial court has thus held incorrectly in considering appellant, who is legally married to Roxan's
natural grandmother, as among those named in the enumeration. Appellant is merely a stepgrandparent who obviously is neither an "ascendant" nor a "step-parent" of the victim. In the recent
case of People vs. Atop, 24 the Court rejected the application of the mandatory death penalty to the
rape of a 12-year old victim by the common-law husband of the girl's grandmother. The Court said:
"It is a basic rule of statutory construction that penal statutes are to be liberally construed in favor of the
accused. Court's must not bring cases within the provision of a law which are not clearly embraced by it.
No act can be pronounced criminal which is not clearly made so by statute; so, too, no person who is not
clearly within the terms of a statute can be brought within them. Any reasonable doubt must be
resolved in favor of the accused."
(People v. Deleverio)

RECLUSION PERPETUA IS LIGHTER THAN LIFE IMPRISONMENT AND IF ONE IS SENTENCED TO LIFE
IMPRISONMENT AND LATER IMPOSED RECLUSION PERPETUA TO SAME OFFENSE, THE PENALTY THAT
SHOULD BE IMPOSED IS RECLUSION PERPETUA
Since reclusion perpetua is a lighter penalty than life imprisonment, and considering the rule that
criminal statutes with a favorable effect upon the accused have, as to him, a retroactive effect, the
penalty imposable upon the accused should be reclusion perpetua and not life imprisonment.
(People v. Latura)

JUSTIFICATION FOR THE IMPOSITION OF THE DEATH PENALTY

Although its origins seem lost in obscurity, the imposition of death as punishment for violation of law or
custom, religious or secular, is an ancient practice. We do know that our forefathers killed to avenge
themselves and their kin and that initially, the criminal law was used to compensate for a wrong done to
a private party or his family, not to punish in the name of the state.
The dawning of civilization brought with it both the increasing sensitization throughout the later
generations against past barbarity and the institutionalization of state power under the rule of law.
Today every man or woman is both an individual person with inherent human rights recognized and
protected by the state and a citizen with the duty to serve the common weal and defend and preserve
society.

One of the indispensable powers of the state is the power to secure society against threatened and
actual evil. Pursuant to this, the legislative arm of government enacts criminal laws that define and
punish illegal acts that may be committed by its own subjects, the executive agencies enforce these
laws, and the judiciary tries and sentences the criminals in accordance with these laws.
Although penologists, throughout history, have not stopped debating on the causes of criminal behavior
and the purposes of criminal punishment, our criminal laws have been perceived as relatively stable and
functional since the enforcement of the Revised Penal Code on January 1, 1932, this notwithstanding
occasional opposition to the death penalty provisions therein. The Revised Penal Code, as it was
originally promulgated, provided for the death penalty in specified crimes under specific circumstances.
As early as 1886, though, capital punishment had entered our legal system through the old Penal Code,
which was a modified version of the Spanish Penal Code of 1870. (People v. Echegaray)

WHY DEATH PENALTY IS NOT A CRUEL AND UNUSUAL PUNISHMENT

"The penalty complained of is neither cruel, unjust nor excessive. In Ex-parte Kemmler, 136 U.S., 436,
the United States Supreme Court said that 'punishments are cruel when they involve torture or a
lingering death, but the punishment of death is not cruel, within the meaning of that word as used in the
constitution. It implies there something inhuman and barbarous, something more than the mere
extinguishment of life.'"
as long as that penalty remains in the statute books, and as long as our criminal law provides for its
imposition in certain cases, it is the duty of judicial officers to respect and apply the law regardless of
their private opinions," and this we have reiterated in the 1995 case of People v. Veneracion. (People v.
Echegaray)

DEATH PENALTY WAS NOT ABOLISHED BUT MERELY SUSPENDED

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 the death penalty
shall not be imposed unless for compelling reasons involving heinous crimes the Congress hereafter
provides for it and, if already imposed, shall be reduced to reclusion perpetua. The language, while
rather awkward, is still plain enough". (People v. Echegaray)

DEFINITION OF HEINOUS CRIMES

". . . the crimes punishable by death under this Act are heinous for being grievous, odious and hateful
offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and
perversity are repugnant and outrageous to the common standards and norms of decency and morality

in a just, civilized and ordered society." (People v. Echegaray)

WHAT ARE THE CRIMES PUNISHABLE BY RECLUSION PERPETUA TO DEATH UNDER RA 7659
Under R.A. No. 7659, the following crimes are penalized by reclusion perpetua to death:
(1) Treason (Sec. 2);
(2) Qualified piracy (Sec. 3);
(3) Parricide (Sec. 5);
(4) Murder (Sec. 6);
(5) Infanticide (Sec. 7);
(6) Kidnapping and serious illegal detention if attended by any of the following four circumstances: (a)
the victim was detained for more than three days; (b) it was committed simulating public authority; (c)
serious physical injuries were inflicted on the victim or threats to kill him were made; and (d) if the
victim is a minor, except when the accused is any of the parents, female or a public officer (Sec. 8);
(7) Robbery with homicide, rape or intentional mutilation (Sec. 9);
(8) Destructive arson if what is burned is (a) one or more buildings or edifice; (b) a building where
people usually gather; (c) a train, ship or airplane for public use; (d) a building or factory in the service of
public utilities; (e) a building for the purpose of concealing or destroying evidence Or a crime; (f) an
arsenal, fireworks factory, or government museum; and (g) a storehouse or factory of explosive
materials located in an inhabited place; or regardless of what is burned, if the arson is perpetrated by
two or more persons (Sec. 10);
(9) Rape attended by any of the following circumstances: (a) the rape is committed with a deadly
weapon; (b) the rape is committed by two or more persons; and (c) the rape is attempted or frustrated
and committed with homicide (Sec. 11);
(10) Plunder involving at least P50 million (Sec. 12);
(11) Importation of prohibited drugs
(Sec. 13);
(12) Sale, administration, delivery, distribution, and transportation of prohibited drugs (id.);
(13) Maintenance of den, dive or resort for users of prohibited drugs (id.);
(14) Manufacture of prohibited drugs (id.);
(15) Possession or use of prohibited drugs in certain specified amounts (id.);
(16) Cultivation of plants which are sources of prohibited drugs (id.)
(17) Importation of regulated drugs
(Sec. 14);
(18) Manufacture of regulated drugs (id.);
(19) Sale, administration, dispensation, delivery, transportation, and distribution of regulated drugs (id.);
(20) Maintenance of den, dive, or resort for users of regulated drugs (Sec. 15);
(21) Possession or use of regulated drugs in specified amounts (Sec. 16);
(22) Misappropriation, misapplication or failure to account dangerous drugs confiscated by the arresting
officer (Sec. 17);

(23) Planting evidence of dangerous drugs in person or immediate vicinity of another to implicate the
latter (Sec. 19); and
(24) Carnapping where the owner, driver or occupant of the carnapped motor vehicle is killed or raped
(Sec. 20).
(People v. Echegaray)

WHAT ARE THE MANDATORY CRIMES PUNISHABLE BY MANDATORY DEATH PENALTY UNDER RA 7659
On the other hand, under R.A. No. 7659, the mandatory penalty of death is imposed in the following
crimes:
(1) Qualified bribery
"If any public officer is entrusted with law enforcement and he refrains from arresting or prosecuting an
offender who has committed a crime punishable by reclusion perpetua and/or death in consideration of
any offer, promise, gift or present, he shall suffer the penalty for the offense which was not prosecuted.
If it is the public officer who asks or demands such gift or present, he shall suffer the penalty of death."
(Sec. 4)
(2) Kidnapping and serious illegal detention for ransom resulting in the death of the victim or the victim
is raped, tortured or subjected to dehumanizing acts
"The penalty shall be death where the kidnapping or detention was committed for the purpose of
ransom from the victim or any other person, even if none of the circumstances above-mentioned were
present in the commission of the offense.
When the victim is killed or dies as a consequence of the detention or is raped, or is subject to torture or
dehumanizing acts, the maximum penalty [of death] shall be imposed." (Sec. 8)
(3) Destructive arson resulting in death
"If as a consequence of the commission of any of the acts penalized under this Article, death results, the
mandatory penalty of death shall be imposed." (Sec. 10)
(4) Rape with the victim becoming insane, rape with homicide and qualified
"When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be
death.
xxx xxx xxx
When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death.

The death penalty shall also be imposed if the crime of rape is committed with any of the following
attendant circumstances:
1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law
spouse of the parent or the victim.
2. when the victim is under the custody of the police or military authorities.
3. when the rape is committed in full view of the husband, parent, any of the children or other relatives
within the third degree of consanguinity.
4. when the victim is a religious or a child below seven (7) years old
5. when the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS)
disease.
6. when committed by any member of the Armed Forces of the Philippines or the Philippine National
Police or any law enforcement agency.
7. when by reason or on the occasion of the rape, the victim has suffered permanent physical
mutilation." (Sec. 11 )
(5) Sale, administration, delivery, distribution and transportation of prohibited drugs where the victim is
a minor or the victim dies
"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 the proximate cause of
the death of victim thereof, the maximum penalty [of death] herein provided shall be imposed." (Sec.
13)
(6) Maintenance of den, dive, or resort for users of prohibited drugs where the victim is a minor or the
victim dies
"Notwithstanding the provisions of Section 20 of this Act to the contrary, the maximum of the penalty
[of death] shall be imposed in every case where a prohibited drug is administered, delivered or sold to a
minor who is allowed to use the same in such place.
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 maintainer
notwithstanding the provisions of Section 20 of this Act to the contrary." (Sec. 13)
(7) Sale, administration, dispensation, delivery, distribution and transportation of regulated drugs where
the victim is a minor or the victim dies
"Notwithstanding the provisions of Section 20 of this Act to the contrary, if the victim of the offense is a
minor, or should a regulated drug involved in any offense under this Section be the proximate cause of
the death of a victim thereof, the maximum penalty [of death] herein provided shall be imposed." (Sec.

14)
(8) Maintenance of den, dive, or resort for users of regulated drugs where the victim is a minor or the
victim dies
"Notwithstanding the provisions of Section 20 of this Act to the contrary, the maximum penalty [of
death] herein provided shall be imposed in every case where a regulated drug is administered, delivered
or sold to a minor who is allowed to use the same in such place.
Should a regulated drug be the proximate cause of death of a person using the same in such den, dive or
resort, the maximum penalty herein provided shall be imposed on the maintainer notwithstanding the
provisions of Section 20 of this Act to the contrary." (Sec. 15)
(9) Drug offenses if convicted are government officials, employees or officers including members of
police agencies and armed forces
"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 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 found guilty or any of the same offenses are government officials,
employees or officers including members of police agencies and the armed forces." (Sec. 19)
(10) Planting of dangerous drugs as evidence in drug offenses with the mandatory death penalty if
convicted are government officials, employees or officers
"Any such above government official, employee or officer who is found guilty of 'planting' any
dangerous drugs punished in Section s 3, 4, 7, 8, 9 and 13 of Article II and Sections 14, 14-A, 15, and 16
of Article III (of the Dangerous Drugs Act of 1972) in the person or in the immediate vicinity of another
as evidence to implicate the latter, shall suffer the same penalty as therein provided." (Sec. 19)
(11) In all the crimes in RA. No. 7659 in their qualified form
"When in the commission of the crime, advantage was taken by the offender of his public position, the
penalty to be imposed shall be in its maximum [of death] regardless of mitigating circumstances.
The maximum penalty [of death] shall be imposed if the offense was committed by any person who
belongs to an organized/syndicated crime group.
An organized/syndicated crime group means a group of two or more persons collaborating,
confederating or mutually helping one another for purposes of gain in the commission of any crime."
(Sec. 23)
(People v. Echegaray)

TWO INSTANCES WHEN DEATH MAY BE IMPOSED WHEN CONSTRUED UNDER RA 7659

Thus, construing R.A. No. 7659 in pari materia with the Revised Penal Code, death may be imposed
when (1) aggravating circumstances attend the commission of the crime as to make operative the
provision of the Revised Penal Code regarding the imposition of the maximum penalty; and (2) other
circumstances attend the commission of the crime which indubitably characterize the same as heinous
in contemplation of R.A. No. 7659 that justify the imposition of the death, albeit the imposable penalty
is reclusion perpetua to death. (People v. Echegaray)

WHY DEATH PENALTY IS IMPOSED ON HEINOUS CRIMES

The death penalty is imposed in heinous crimes because the perpetrators thereof have committed
unforgivably execrable acts that have so deeply dehumanized a person or criminal acts with severely
destructive effects on the national efforts to lift the masses from abject poverty through organized
governmental strategies based on a disciplined and honest citizenry, and because they have so caused
irreparable and substantial injury to both their victim and the society and a repetition of their acts
would pose actual threat to the safety of individuals and the survival of government, they must be
permanently prevented from doing so. At any rate, this court has no doubts as to the innate
heinousness of the crime of rape, as we have held in the case of People v. Cristobal. (People v.
Echegaray)

WHY RAPE IS A HEINOUS CRIME

"Rape is the forcible violation of the sexual intimacy of another person. It does injury to justice and
charity. Rape deeply wounds the respect, freedom, and physical and moral integrity to which every
person has a right. It causes grave damage that can mark the victim for life. It is always an intrinsically
evil act . . . an outrage upon decency and dignity that hurts not only the victim but the society itself."
(People v. Echegaray)

WHY CAPITAL PUNISHMENT SHOULD NOT BE ABOLISHED

"Capital punishment ought not to be abolished solely because it is substantially repulsive, if infinitely
less repulsive than the acts which invoke it. Yet the mounting zeal for its abolition seems to arise from a
sentimentalized hyperfastidiousness that seeks to expunge from the society all that appears harsh and
suppressive. If we are to preserve the humane society we will have to retain sufficient strength of
character and will to do the unpleasant in order that tranquillity and civility may rule comprehensively. It
seems very likely that capital punishment is a . . . necessary, if limited factor in that maintenance of
social tranquillity and ought to be retained on this ground. To do otherwise is to indulge in the luxury of
permitting a sense of false delicacy to reign over the necessity of social survival." (People v. Echegaray)

RA 6425 AS AMENDED BY RA 7659 WHEN PENALTY IN NEW LAW NOT FAVORABLE TO ACCUSED IT
SHOULD BE RETAINED
Appellant in this case was convicted and meted the penalty of life imprisonment and fine of twenty
thousand pesos under RA 6425 for transporting more or less 6 kilos of marijuana on July 1990. RA 7659,
which took effect on December 31/93, amended the provisions of RA 6425, increasing the imposable
penalty for the sale or transport of 750 grams or more of marijuana to reclusion perpetua to death and a
fine ranging from five hundred thousand pesos to ten million pesos. Such penalty is not favorable to the
appellant as it carries the accessory penalties provided under the RPC and has a higher amount of fine
which in accordance with ART 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 pesos correctly imposed by the trial court should be retained. (PP v Carreon, 12/9/97)
COURTS SHOULD NOT BE CONCERNED ABOUT WISDOM, EFFICACY OR MORALITY OF LAWS
It is a well settled rule that the courts are not concerned with the wisdom, efficacy or morality of laws.
That question falls exclusively within the province of the Legislature which enacts them and the Chief
Executive who approves or vetoes them. The only function of the judiciary is to interpret the laws and, if
not in disharmony with the Constitution, to apply them. And for the guidance of the members of the
judiciary we feel it incumbent upon us to state that while they as citizens or as judges may regard a
certain law as harsh, unwise or morally wrong, and may recommend to the authority or department
concerned, its amendment, 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-making body. (People v. Veneracion)
REASON FOR DURATION OF RECLUSION PERPETUA OF 30 OR 40 YEARS
The imputed duration of thirty (30) years for reclusion perpetua, therefore, is only to serve as the basis
for determining the convict's eligibility for pardon or for the application of the three-fold rule in the
service of multiple penalties. (People v. Lucas)
ROBBERY WITH HOMICIDE, NUMBER OF PERSONS KILLED DOES NOT ALTER CHARACTERIZATION OF THE
OFFENSE BUT CAN BE APPRECIATED AS AGGRAVATING CIRCUMSTANCE.
While the number of persons killed does not alter the characterization of the offense as robbery with
homicide, the multiplicity of the victims slain should have been appreciated as an aggravating
circumstance. This would preclude an anomalous situation where, from the standpoint of the gravity of
the offense, robbery with one killing would be treated in the same way that robbery with multiple
killings would be. (People V. Timple)

ROBBERY WITH HOMICIDE AND ROBBERY WITH RAPE; PROVISION OF ARTICLE 294 OF THE REVISED

PENAL CODE AS AMENDED BY REPUBLIC ACT 7659 CANNOT BE APPLIED RETROACTIVELY; CASE AT BAR.

Under Article 294 (1) of the Revised Penal Code, robbery with homicide is punishable by reclusion
perpetua to death. In view, however, of the first paragraph of Section 19, Article III of the 1987
Constitution, which provides that: "Sec. 19. (1) Excessive fines shall not be imposed, nor cruel, degrading
or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling
reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already
imposed shall be reduced to reclusion perpetua" (Emphasis supplied) only the penalty of reclusion
perpetua could be imposed by the trial court. Hence, the attended aggravating circumstances in this
case had no impact upon the determination of the proper penalty by the 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 with rape. By the same statute, Article 294 of the Revised
Penal Code was amended to read as follows: "Any person guilty of robbery with the use of violence
against or intimidation on any person shall suffer: 1. The penalty of reclusion perpetua to death, when
by reason or on occasion of the robbery, the crime of homicide shall have been committed, or when the
robbery shall have been accompanied by rape or intentional mutilation or arson. . . . (Emphasis supplied)
Article 294 of the Revised Penal Code, as amended by R.A. No. 7659, however, cannot be applied
retroactively in this case. To do so would be to subject the appellant to the death penalty which could
not have been constitutionally imposed by the court a quo under the law in effect at the time of the
commission of the offenses. (People v. Timple)

A PERSON MAY BE CONVICTED OF GRAVE COERCION ALTHOUGH THE CHARGE IS KIDNAPPING

The Information, dated March 24, 1992, filed against Astorga contains sufficient allegations constituting
grave coercion, the elements of which were sufficiently proved by the prosecution. Hence, a conviction
for said crime is appropriate under Section 4, Rule 120 of the 1988 Rules on Criminal Procedure.
(People -vs- Astorga)
ELEMENTS OF GRAVE COERCION
Grave Coercion or coaccion grave has three elements:
a. That any person is prevented by another from doing something not prohibited by law, or compelled
to do something against his or her will, be it right or wrong;
b. That the prevention or compulsion is effected by violence, either by material force or such a display of
it as would produce intimidation and, consequently, control over the will of the offended party; and
c. that the person who restrains the will and liberty of another has no right to do so or, in other words,
that the restraint is not made under authority of a law or in the exercise of any lawful right.

(People -vs- Astorga)

ACTUAL DETENTION OR LOCKING UP, AN ESSENTIAL ELEMENT OF KIDNAPPING
Actual detention or "locking up" is the primary element of 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 knew.
There being no actual detention or confinement, the appellant may be convicted only of grave coercion.
(People -vs- Astorga; GGR 110097, December 22, 1997)

DANGEROUS DRUGS ACT OF 1972 (R.A. NO. 6425); SECTIONS 15 AND 20 THEREOF AS AMENDED BY R.A.
NO. 7659.
In People vs. Martin Simon y Sunga, (G.R. No. 93028), decided on 29 July 1994, this Court ruled as
follows: (1) Provisions of R.A. No. 7659 which are favorable to the accused shall be given retroactive
effect pursuant to Article 22 of the Revised Penal Code. (2) Where the quantity of the dangerous drug
involved is less than the quantities stated in the first paragraph of Section 20 of R.A. No. 6425, the
penalty to be imposed shall range from prision correccional to reclusion temporal, and not reclusion
perpetua. The reason is that there is an overlapping error, probably through oversight in the drafting, in
the provisions on the penalty of reclusion perpetua as shown by its dual imposition, i.e., as the minimum
of the penalty where the quantity of the dangerous drugs involved is more than those specified in the
first paragraph of the amended Section 20 and also as the maximum of the penalty where the quantity
of the dangerous drugs involved is less than those so specified in the first paragraph. (3) Considering
that the aforesaid penalty of prision correccional to reclusion temporal shall depend upon the quantity
of the dangerous drugs involved, each of the component penalties thereof prision correccional,
prision mayor, and reclusion temporal shall be considered as a principal imposable penalty depending
on the quantity, such that the quantity of the drugs enumerated in the second paragraph should then be
divided into three, with the resulting quotient, and double or treble the same, as the bases for
determining the appropriate component penalty. (4) The modifying circumstances in the Revised Penal
Code may be appreciated to determine the proper period of the corresponding imposable penalty or
even to effect its reduction by one or more degrees; provided, however, that in no case should such
graduation of penalties reduce the imposable penalty lower than prision correccional. (5) In appropriate
instances, the Indeterminate Sentence Law shall be applied and considering that R.A. No. 7659 has
unqualifiedly adopted the penalties under the Revised Penal Code with their technical signification and
effects, then the crimes under the Dangerous Drugs Act shall now be considered as crimes punished by
the Revised Penal Code; hence, pursuant to Section 1 of the Indeterminate Sentence Law, the
indeterminate penalty which may be imposed shall be one whose maximum shall be within the range of
the imposable penalty and whose minimum shall be within the range of the penalty next lower in
degree to the imposable 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
penalty under the second paragraph of Section 20 of R.A. No. 6425, as further amended by Section 17 of
R.A. No. 7659, should be prision correccional. Applying the Indeterminate Sentence Law, the accused
may then be sentenced to suffer an indeterminate penalty ranging from six (6) months of arresto mayor
as minimum to six (6) years of prision correccional as maximum.
WHEN THEFT OF MOTOR VEHICLE IS QUALIFIED THEFT. (STRAY DECISION)
In this case, the stolen property is a Yamaha RS motorcycle bearing plate no. CZ-2932 with sidecar
valued at P30,000.00. Since this value remains undisputed, we accept this amount for the purpose of
determining the imposable penalty. In simple theft, such amount carries the corresponding penalty of
prision mayor in its minimum and 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 prision mayor in its minimum and medium periods must be raised by two degrees. Thus, the penalty
prescribed for the offense committed of qualified theft of motor vehicle is reclusion temporal in its
medium and maximum periods to be imposed in its maximum period. (PP -vs- Ricardo Dela Cruz alias
Pawid, Manuel dela Cruz alias Pawid, Danilo Dela Cruz and John Doe alias Henry Balintawak and Orlando
Padilla y Mendoza, Accused. RICARDO DELA CRUZ alias Pawid, Accused-Appellant. G.R. No. 125936 Feb.
23, 2000 )
PERIOD WHEN BAIL IS EFFECTIVE AFTER CONVICTION 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 not during the entire period of appeal. This is consistent with Section 2(a) of Rule 114
which provides that the bail "shall be effective upon approval and remain in force at all stages of the
case, unless sooner cancelled, until the promulgation of the judgment of the Regional Trial Court,
irrespective of whether the case was originally filed in or appealed to it." This amendment, introduced
by SC Administrative Circular 12-94 is a departure from the old rules which then provided that bail shall
be effective and remain in force at all stages of the case until its full determination, and thus even during
the period of appeal.
Moreover, under the present rule, for the accused to continue his provisional liberty on the same bail
bond during the period to appeal, consent of the bondsman is necessary. From the record, it appears
that the bondsman, AFISCO Insurance Corporation, filed a motion in the trial court on January 06, 1987
for the cancellation of petitioners' bail bond for the latter's failure to renew the same upon its
expiration. Obtaining the consent of the bondsman was, thus, foreclosed. ( Aniceto Sabbun Maguddatu
and Laureana Sabbun Maguddatu, Petitioners, -vs- Honorable COURT OF APPEALS (Fourth Division and
People of the Philippines, Respondents. G.R. No. 139599, Feb. 23, 2000)
WHEN ABUSE OF SUPERIOR STRENGTH IS PRESENT.
We find, however, that the aggravating circumstance of abuse of superior strength attended the killing.

"To appreciate abuse of superior strength as an aggravating circumstance, what should be considered is
not that there were three, four or more assailants of one victim, but whether the aggressors took
advantage of their combined strength in order to consummate the offense. It is therefore necessary to
show that the attackers cooperated in such a way as to secure advantage of their superiority in
strength."
In this case, appellants and their companions purposely gathered together and armed themselves to
take advantage of their combined strength to ensure that Reynaldo Danao would be able to kill the
victim without any interference from other bystanders.
However, not having been alleged in the Information, abuse of superior strength can only be considered
as a generic aggravating circumstance. (PP -vs- CIELITO BULURAN Y RAMIREZ and LEONARDO
VALENZUELA Y CASTILLO, Accused-Appellants. G.R. No. 113940, Feb. 15, 2000)

USE OF MOTOR VEHICLE AS QUALIFYING AGGRAVATING CIRCUMSTANCE

The use of a motor vehicle qualifies the killing to murder if the same was perpetrated by means thereof.
(PP -vs- THADEOS ENGUITO Defendant-Appellant. G.R. 128812, Feb. 28, 2000)

ELEMENTS OF EVIDENT PREMEDITATION

(1) The time when the offender determined to commit the crime; (2) an act manifestly indicating that
the offender had clung to his determination; and (3) sufficient lapse of time between the determination
and the execution to allow the offender to reflect on the consequences of his act. (PP -vs- ROGELIO
GALAM, Accused-Appellant. G.R. No. 114740, Feb. 15, 2000)

WHEN NIGHTTIME IS AGGRAVATING

Nighttime as an aggravating circumstance must have specially been sought to consummate the crime,
facilitate its success or prevent recognition of the felon. (PP -vs- CONSTANCIO MERINO and ARNULFO
SIERVO, Accused-Appellants. G.R. No. 132329, Dec. 17, 1999)

TREACHERY IS PRESENT ON SECOND STAGE OF ACCIDENT

There is treachery when the offender commits any of the crimes against the person employing means,
methods or forms in the execution thereof which tend directly and specifically to insure its execution
without risk to himself arising form the defense which the offended party might make. As earlier
mentioned, the deceased was already rendered completely helpless and defenseless when he was

stabbed by Pedro Lumacang. Although he was able to run a short distance, he had absolutely no means
of defending himself from the three brothers who were armed with hunting knives, bent on finishing
him off. The wounded victim had not even so much as a stick or a stone to parry off their blows. It
should be noted, however, at this point that inasmuch as treachery has been appreciated as a qualifying
circumstance, abuse of superior strength should not have been considered separately inasmuch as it is
absorbed in treachery. (PP -vs- PEDRO LUMACANG, PABLO LUMACANG and DOMINGO LUMACANG,
Accused-Appellants. G.R. No. 120283, Feb. 1, 2000)

WHY DWELLING IS AGGRAVATING

"The home is a sort of sacred place for its owner. He who goes to another's house to slander him, hurt
him or do him wrong, is more guilty than he who offends him elsewhere." (PP -vs- JOSE & NESTOR
BiAS, Accused-Appellant. G.R. No. 121630, Dec. 8, 1999)

EVEN FRONTAL ATTACK WOULD AMOUNT TO TREACHERY

Moreover, Milyn Ruales also testified that the knife used by accused was hidden from view. Thus, Isabel
Ruales was not prepared for such a violent attack, especially considering that, at the time, she was
unarmed and was burdened with a large basket filled with about six kilos of corn and dried fish hanging
from her shoulders and thus, could not have possibly warded off the blow or run away from her
assailant. Although Milyn Ruales described the attack having been frontal, this does not negate
treachery since the essence of treachery is the suddenness and unexpectedness of the attack, giving the
victim no opportunity to repel it or offer any defense of his person. Thus, we hold that the trial court
correctly appreciated the qualifying circumstance of treachery. (PP -vs- CORNELIA SUELTO alias "ELY"
alias "ROGELIA SUELTO", G.R. No. 126097, Feb. 8, 2000)
DATE OF EFFECTIVITY OF RA 7659, ETC.
Republic Act No. 7659 took effect on 31 December 1993. Accordingly, the said law only applies to crimes
defined 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 facto laws.
For this reason, in order for the death penalty to be imposable, it is incumbent upon the prosecution to
establish beyond a shadow of doubt that the case of the accused is already covered by Republic Act No.
7659.
AN EX POST FACTO LAW HAS BEEN DEFINED AS ONE WHICH
(a) makes criminal an act before the passage of the law and which was innocent when done, and
punishes such an act;
(b) aggravate a crime, or makes it greater than it was, when committed;
(c) changes the punishment and inflicts a greater punishment than the law annexed to the crime when
committed;
(d) alters the legal rules of evidence, and authorizes conviction upon less or different testimony than the

law required at the time of the commission of the offense;

(e) assuming to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a right
for something which when done was lawful; and
(f) deprives person accused of a crime of some lawful protection to which he has become entitled, such
as the protection of a former conviction or acquittal, or a proclamation of amnesty. (PP -vs- CHARITO
ISUG MAGBANUA, G.R. No. 128888, Dec. 3, 1999)

ILLEGAL POSSESSION OF FIREARMS

(REPUBLIC ACT NO. 8294)

SECTION 1. Section 1 Presidential Decree No. 1866, as amended, is hereby further amended to read as
follows:
"SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or
Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or
Ammunition. The penalty of prision correccional in its maximum period and a fine of not less than
Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture,
deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and
other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used
or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime
was committed.
"The penalty of prision mayor in its minimum period and a 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 and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered
firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other
firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no
other crime was committed by the person arrested.
"If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed
firearm shall be considered as an aggravating circumstance.
"If the violation of this Section is in furtherance of or incident to, or in connection with the crime of
rebellion or insurrection, sedition, or attempted coup d'etat, such violation shall be absorbed as an
element of the crime of rebellion, or insurrection, sedition, or attempted coup d'etat.
"The same penalty shall be imposed upon the owner, president, manager, director or other responsible
officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly
allow any of the firearms owned by such firm, company, corporation or entity to be used by any person

or persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowingly
allow any of them to use unlicensed firearms or firearms without any legal authority to be carried
outside of their residence in the course of their employment.
"The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm
outside his residence without legal authority therefor."

SECTION 2. Section 3 of Presidential Decree No. 1866, as amended, is hereby further amended to read
as follows:
"SECTION 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives. The
penalty of prision mayor in its maximum period to reclusion temporal and a fine of not less than Fifty
thousand pesos (P50,000) shall be imposed upon any person who shall unlawfully manufacture,
assemble, deal in, acquire, dispose or possess hand grenade(s), rifle grenade(s), and other explosives,
including but not limited to 'pillbox,' 'molotov cocktail bombs,' 'fire bombs,' or other incendiary devices
capable of producing destructive effect on contiguous objects or causing injury or death to any person.
"When a person commits any of the crimes defined in the Revised Penal Code or special laws with the
use of the aforementioned explosives, detonation agents or incendiary devices, which results in the
death of any person or persons, the use of such explosives, detonation agents or incendiary devices shall
be considered as an aggravating circumstance.
"If the violation of this Section is in furtherance of, or incident to, or in connection with the crime of
rebellion, insurrection, 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 any public or private firm, company, corporation or entity, who shall willfully or knowingly
allow any of the explosives owned by such firm, company, corporation or entity, to be used by any
person or persons found guilty of violating the provisions of the preceding paragraphs."

SECTION 3. Section 5 of Presidential Decree No. 1866, as amended, is hereby further amended to read
as follows:
"SECTION 5. Tampering of Firearm's Serial Number. The penalty of prision correccional shall be
imposed upon any person who shall unlawfully tamper, change, deface or erase the serial number of
any firearm."

SECTION 4. Section 6 of Presidential Decree No. 1866, as amended, is hereby further amended to read

as follows:
"SECTION 6. Repacking or Altering the Composition of Lawfully Manufactured Explosives. The penalty
of prision correccional shall be imposed upon any person who shall unlawfully repack, alter or modify
the composition of any lawfully manufactured explosives."

SECTION 5. Coverage of the Term Unlicensed Firearm. The term unlicensed firearm shall include:
1) firearms with expired license; or
2) unauthorized use of licensed firearm in the commission of the crime.

RULE ON ILLEGAL POSSESSION OF FIREARMS BEFORE AN ACCUSED

MAYBE CONVICTED
In crimes involving illegal possession of firearm, the prosecution has the burden of proving the elements
thereof, viz:
a. the existence of the subject firearm; and
b. the fact that the accsused who owned or possessed it does not have the license or permit to possess
the same. (People v. Castillo, 325 scra 613)
The essence of the crime of illegal possession is the possession, whether actual or constructive, of the
subject firearm, without which there can be no conviction for illegal possession.
After possession is established by the prosecution, it would only be a matter of course to determine
whether the accused has a license to possess the firearm. (People v. Bansil, 304 scra 384)
Possession of any firearm becomes unlawful only if the necessary permit or license therefor is not first
obtained. The absence of license and legal authority constitutes an essential ingredient of the offense of
illegal possession of firearm and every ingredient or essential element of an offense must be shown by
the prosecution by proof beyond reasonable doubt. Stated otherwise, the negative fact of lack or
absence of license constitutes an essential ingredient of 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)
"To convict an accused for illegal possession of firearms and explosives under P.D. 1866, as amended,
two (2) essential elements must be indubitably established, viz: (a) the existence of the subject firearm
or explosive which may be proved by the presentation, of the subject firearm or explosive or by the
testimony of witnesses who saw accused in possession of the same, and (b) the negative fact that the

accused had no license or permit to own or possess the firearm or explosive which fact may be
established by the testimony or certification of a representative of the PNP Firearms and Explosive Unit
that the accused has no license or permit to possess the subject firearm or explosive." (Del Rosario v.
People, 05/31/01)
We stress that the essence of the crime penalized under P.D. 1866 is primarily the accused's lack of
license or permit to carry or possess the firearm, ammunition or explosive as possession by itself is not
prohibited by law. (People v. Cortez, 324 scra 335, 344)
Illegal possession of firearm is a crime punished by special law, a malum prohibitum, and no malice or
intent to commit a crime need be proved. (People v. Lubo, 101 Phil. 179) To support a conviction,
however, there must be possession coupled with intent to possess (animus possidendi) the firearm.
(Supra)

PRESENT MEANING OF ILLEGAL

POSSESSION OF FIREARM
Unlicensed firearm no longer simply means a firearm without a license duly issued by lawful authority.
The scope of the term has been expanded in Sec.5 of R.A. 8294.
Thus, the unauthorized use of a weapon which has been duly licensed in the name of its
owner/possessor may still aggravate the resultant crime. In the case at bar, although 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 circumstance in imposing the proper penalty for murder. (Pp. V. Molina; Gr 115835-36; July
22, 1998)

ILLEGAL POSSESSION OF FIREARM ONLY

SPECIAL AGGRAVATING CIRCUMSTANCE
IN CRIMES OF HOMICIDE, ETC.
Where murder or homicide was committed, the separate penalty for illegal possession shall no longer
be meted out since it becomes merely a special aggravating circumstance.
This statutory amendment may have been an offshoot of our remarks in Pp. V. Tac-an and Pp. V. Quijada
:
Neither is the 2nd paragraph of Sec.1 meant to punish homicide or murder with death if either crime is
committed with the use of an unlicensed firearm, i.e., to consider such use merely as a qualifying
circumstance and not as an offense. That could not have been the intention of the lawmaker because

the term penalty in the subject provision is obviously meant to be the penalty for illegal possession of
firearm and not the penalty for homicide or murder. We explicitly stated in Tac-an :
There is no law which renders the use of an unlicensed firearm as an aggravating circumstance in
homicide or murder. Under an information charging homicide or murder, the fact that the death
weapon was an unlicensed firearm cannot be used to increase the penalty for the 2nd offense of
homicide or murder to death (or reclusion perpetua under the 1987 Constitution). The essential point is
that the unlicensed character or condition of the instrument used in destroying human life or
committing some other crime, is not included in the inventory of aggravating circumstances set out in
Article 14 of the Revised Penal Code.
A law may, of course, be enacted making use of an unlicensed firearm as a qualifying circumstance.
(People v. Molina; GR 115835-36, July 22, 1998)

NEW PENALTY FOR LOW POWERED

FIREARM IN ILLEGAL POSSESSION
OF FIREARMS
Petitioner, fortunately for him, is nonetheless not entirely bereft of relief. The enactment and approval
on 06 Jun 1997 of RA 8294, being favorable to him, should now apply. Under this new law, the penalty
for possession of any low powered firearm is only prision correccional in its maximum period and a fine
of not less than P15,000.00.
Applying the Indeterminate Sentence Law, the present penalty that may be imposed is anywhere from
two years, four months and one day to four years and two months of 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 maximum.. The court in addition, may impose a fine consistent
with the principle that an appeal in a criminal case throws the whole case open for review by the
appellate tribunal. (Mario Rabaja v CA, et al., Oct 8/97)

ACTS PUNISHABLE:
1. upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low
powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of
firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture
of any firearm or ammunition
2. "If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed
firearm shall be considered as an aggravating circumstance.

3. "If the violation of this Section is in furtherance of or incident to, or in connection with the crime of
rebellion or insurrection, sedition, or attempted coup d'etat, such violation shall be absorbed as an
element of the crime of rebellion, or insurrection, sedition, or attempted coup d'etat.
4. "The same penalty shall be imposed upon the owner, president, manager, director or other
responsible officer of any public or private firm, company, corporation or entity, who shall willfully or
knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by
any person or persons found guilty of violating the provisions of the preceding paragraphs or willfully or
knowingly allow any of them to use unlicensed firearms or firearms without any legal authority to be
carried outside of their residence in the course of their employment.
5. The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm
outside his residence without legal authority therefor
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 the composition of any lawfully
manufactured explosives.

MALUM PROHIBITUM
The offense of illegal possession of firearm is a malum prohibitum punished by a special law, in which
case good faith and absence of criminal intent are not valid defenses. (People v De Gracia, 7/6/94)
1. Manufacture, deal in, acquire, dispose or possess. It is these acts relative to firearms. The obvious
underlying principle is the undesirability of the proliferation of firearms and their free traffic and
possession. This is clear from the first two whereas clause of P.D. 1866. It is then clear that illegal
possession, etc. is a malum prohibitum. For purpose of simplicity we will confine our analysis to
possession, although what we will discuss hereunder applies to manufacture, dealing in, acquiring or
disposing as well.
1.1. it is not correct to say without qualification that intent is immaterial. Intent as to possession is
immaterial. Intention to possess is material. Whatever the purpose of the possession may be is
consistently immaterial. That one was in possession of an unlicensed firearms merely for ones
protection without intending harm on anybody is a fruitless defense. It is the clear doctrine of such cases
as People v. de la Rosa, 284 SCRA 158 that mere possession without criminal intent is sufficient on
which to render a judgment of conviction.
1.2. HOWEVER, possession must be established beyond reasonable doubt, and in view of the special
meaning that possession has in criminal law, discovery by police, officers alone of a firearmin the
baggage or gloves compartment of a car will not necessarily be sufficient to sustain a conviction of the

car owner or driver. Essential to the legal concept of possession in illegal possession cases is animus
possidendio. (People v. de la Rosa, supra; People v. Sayang, 110 Phil 565).
1.3. How is animus possidendi established? There must be proved either by direct or circumstantial
evidence the intent of the accused to possess, or to keep the firearm.
a.) Animus Possidendi is determined by recourse to overt 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 question, a good case for animus possidendi is made.
b.)Animus possidendi may also be inferred from the fact that an unlicensed firearms was under the
apparent control and power of the accussed. (People v. Verches, 33 SCRA 174)
c.) People v. de Guzman, G.R. 117952-53 (February 14, 2001) holds that the gravamen for the offense
of violation of P.D.1866 is the possession of firearm without the necessary permit and/or license. The
crime is immediately consummated upon mere possession of a firearm devoid of legal authority, since it
is assumed that the same is possed with animus possidendi Does it then follow that everyone found
with the firearm is in possession thereof for the purpose of prosecution and conviction under P.D.
1866 as amended by R.A. 8294? The results would be patently absurd.
h. A person who finds a firearms and takes it with him to the police station for the purpose of turning it
over to the police should be commended, rather than prosecuted.
ii. A person who is stopped at a check-point at which it is discovered that there is firearms placed
either advertently or inadvertently in his baggage compartment without his knowledge - cannot be held
liable for illegal possession.
iii. If the offender was in possession of an unlicensed only on the occasion of the shooting for transitory
purpose and for the short moment in connection with the shooting, the Supre Court held in People v.
Macasling, 237 SCRA 299 that there was no evidence of animus possidendi.
iv. It then appears to be the more reasonable position that where a person is apprehended with an
unlicensed weapon, animus possidendi will be disputably presumed. The accused may controvert the
presumption of animus possidendi. To convict, the court needs proof beyond reasonable doubt of
animus possidendi.

1.4 What the prosecution must prove for it to succeed under 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)
a.) To prove the existence of the firearm, it is not absolutely necessary that the object evidence be
presented. It is very well possible that the accused effectively conceals the weapon before his
apprehension. Incontrovertible testimonial evidence may successfully established the existence of the
firearm. (People v. Narvasa, G.R. 132878 [November 16, 1998]),
b.) An interesting question arises. The present law makes penalties depend on the caliberof the firearm,
i.e, on whether it is high-powered or low-powered In People v. Gutierrez, G.R. 132878 (January 18,

1999) the Supreme Court ruled that a U.S. carbine M1 caliber .30 was high-powered because it was
capable of ejecting more than one bullet in one squeeze. If it is the criterion, then logically, caliber can
be established by teetimony establishing the manner in which the firearm ejected bullets. The
distinguishing features of particularly firearms, furthermore, that may be recited by keen observer
sworn in a s witness my identify the firearm as well as it caliber. This can be established by a judicious
combination of the testimonial evidence of observers abd experts.
c.) A firearm is unlicensed when a certification from the Firearms and Explosives Unit attests that no
license has been issued. There will still be a case for illegal possession if one holding a firearm duly
licensed carries it outside his residence when he has no permit to carry it outside his residence (Pastrano
v. Court of Appeals, 281 SCRA 287). A fortiori, the use of a licensed firearm by one not licensed or
permitted to use it would still be illegal possession.
d.) A security guard employed by a security agency and issued a firearm by the agency has the right to
assume that the firearm issued to him is a licensed firearm. If it turns out that the firearm is not
licensed, there is no animus possidendi of an unlicensed firearm. (Cuenco v. People, 33 SCRA 522). The
case is obviously different, however, if a police officer leaves with a cousin for safekeeping his firearm.
The cousin knows fully well that he has no permit or authority to keep the firearm. If he accepts to do
this favor, he is indictable. (People v. Sayong, 110 Phil 565)
2. Provided no other crime is committed. It is this proviso in the amendatory law that has visited
countless woes on numerous judges and has occasioned not easily reconcilable decisions by the
Supreme Court .it is obviously a case of not only poor but miserable draftsmanship!
2.1 It is clear that where there is no other offense except the unlawful possession of a firearm, the
penalties provided for 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 firearms.
Thus in People v. Nunez, G.R. 112092 (March 1, 2001) holds that a person may be convicted of simple
illegal possession if the illegal possession is proved and the frustrated murder and murder case
involving the use of the illegal possession has not been sufficiently proved. People v. Avecilla, G.R.
117033 (February 15, 2001) teaches that the crime of illegal possession of firearms, in its simple form,
is committed any of the crimes of murder, homicide, rebellion, insurrection, sedition or attempted coup
detat.
2.2. It is also clear that where either homicide or murder is committed with the use of an unlicensed
firearm, such use shall constitute an aggravating circumstances. It is well known that R.A. 8294 was
initiated by Senator Ramon Revilla as a favor to his friend Robin Padilla who was then serving sentence
for illegal possession. It was therefore meant to be more benevolent, as it is in the penalties it impose.
Senator Revilla, however, could not see far enough (and regrettably neither could other legislators) and
the effect at least in the case of murder is that it may send the accused to the lethal injection chamber
where otherwise he would not be meted out the death penalty. People v. Montinola, G.R. 131856-57
(July 1, 2001) with the Chief Justice himself as ponente illustrates the complication the law has

introduced. In this case, the accused had been charged with two offenses: robbery with homicide and
illegal possession of firearms. During the pendency of the case, the amended law came into force. The
court then held that insofar as R.A. 8294 was favorable to the accused in that it spared him from
separate prosecution for illegal possession, the charge for illegal possession was dropped. Insofar,
however, as it increased the penalty for robbery with homicide, the aggravating circumstances of the
use of unlicensed weapon could not be appreciated. Rule 110, Section 9 of the Revised Rules of Criminal
Procedure will apply: As an aggravating circumstances, the use of the unlicensed weapon must be
alleged in the information.
2.3 When the violation of the law penalizing unlicensed weapon is in furtherance of or incident to, or in
connection with the crimes of rebellion, insurrection, sedition or attempted coup detat then the
violation is absorbed in the main offense. (R.A. 8294, Section 1).
2.4 What happens when an unlicensed weapon is used in the commission of other offenses other that
homicide, murder, rebellion, insurrection, sedition or attempted coup d etata? People v.
Walpandladjaalam, G.R. 1361149-51 ( September 19, 2000) provides the answer in the distinctively clear
language of Justice Panganiban: The law is clear: the accused can be convicted of simple illegal
possession of firearms, provided that no other crime was committed by the person arrested. If the
intention of the law in the second paragraph were to refer only to homicide and murder, it should have
expressly said so, as it did in the third paragraph. Verily, where the law does not distinguish, neither
should we. In brief, where the accused commits a crime other than those enumerated with the use of
an unlicensed weapon, no separate charge for such use will be brought against him. Consistent with this
is the disposition by the Supreme court decreed: Accordingly, all pending cases for illegal possession of
firearms should be dismissed if they arose from the commission of crimes other than those indicated in
Section 1 and 3 of R.A. 8294.
2.5 Clearly the law leads to absurd results, for when the use of an unlicensed weapon attends the
commission of a crime, no matter how trivial, the case of illegal possession recedes into judicial
irrelevance. The matter is definitely one that calls for a curative statute and the Supreme Court has
referred the matter to the Congress for another look. One moral lesson can be learned: Laws passed as
favor to ones friend is a poor laws!

OWNERSHIP IS NOT AN ESSENTIAL

ELEMENT OF ILLEGAL POSSESSION
The rule is that ownership is not an essential element of illegal possession of firearms and ammunition.
What the law requires is merely possession which includes not only actual physical possession but also
constructive possession or the subjection of the thing to ones control and management.

INTENT TO POSSESS, OR ANIMUS POSSIDENDI IS ESSENTIAL

A distinction should be made between criminal intent and intent to possess. While mere possession
without criminal intent is sufficient to convict a person for illegal possession of firearms, it must still be
shows that there was animus possidendi or an intent to possess on the part of the accused.
There is no evidence of animus possedendi if the offender was in possession of an unlicensed firearm
only on the occasion of the shooting for a transitory purpose and for the short moment in connection
with the shooting.
Lack of evidence is an essential element of the crime and that the same must be alleged in the
Information and duly proved.
(People -vs- Macasling, 237 SCRA 299)
Ownership of the gun is immaterial or irrelevant in violation of PD 1866, as amended. One may be
convicted of possession of an unlicensed firearm even if he is not the owner thereof.
(People -vs- Reynaldo Cruz, GR No.
76728, August 3, 1988)
Even if the gun is "paltik," there is a need to secure license for the gun, and if found without any license
therefor, the offender is liable for violation of PD 1866.
(People vs- Filemon Ramos, 222 SCRA 557)
If an unlicensed firearm is used to commit a crime other than homicide or murder, such a direct assault
with attempted homicide, the use of an unlicensed firearm is neither an aggravating circumstances nor a
separate offense. Since the law uses the word Homicide or Murder, possession of an unlicensed firearm
is not aggravating in Attempted Homicide.
(People -vs- Walpan Ladjaamlam, et al.,
GR No. 136149-51, September 19, 2000)
Where the accused was charged of Murder and violation of PD 1866 and that, in the meantime, Republic
Act 8294 took effect, the accused should be convicted only of Murder. The use of unlicensed firearm
should not be considered as aggravating because the Court will have to impose the death penalty which
cannot be allowed because, at the time of the commission of the offense, the death penalty cannot as
yet, be imposed. However, in his concurring opinion, Chief Justice Hilario Davide, Jr. declared that, under
such a factual milieu, the charge of violation of PD 1866 should continue and if the accused is found
guilty, he should be meted the death penalty under Republic Act 8294.
(People -vs- Victor Macoy, GR No.
126253, August 16, 2000)
Where the prosecution failed to adduce the gun in evidence coupled with the fact that per Certification
of the FEU, " no available information regarding the license for the gun and the inconsistency in the
evidence of the prosecution, the latter failed to discharge its burden.

(People -vs- Ricolito Rugay, et al., 291 SCRA 692)

Mere possession without criminal intent is sufficient on which to render a judgment of conviction for
violation of PD 1866, as amended. However, there must be animus possedendi or intent to possess
without any license or permit. Good faith is not a defense. Neither is lack of criminal intent.
(People -vs- Rodolfo Dela Rosa, et al., 284 SCRA 158)
Temporary, incidental, casual or harmless possession of firearm is not punishable. Hence, stealing a
firearm to render the owner defenseless is not a crime under the law. (idem, supra)
Possession includes actual physical possession and constructive possession. The animus can be
determined from the overt acts of the accused prior to or coetaneous with and other surrounding
circumstances of such possession. Hence, where the accused found a gun and was on his way to deliver
the gun to the police authority and was arrested, in the process, there is no animus possedendi.
(People -vs- Rodolfo Dela Rosa, et al., supra)
Even if a paltik is a homemade gun and thus illegally manufactured nevertheless, the Prosecution is
burdened to prove that the accused has no license for the gun.
(People -vs- Felimon Ramos, et al., 222 SCRA 557)
For the accused to be guilty of violation of PD 1866 as amended the Prosecution must prove: (a) the
existence of the subject firearm; (b) the fact that the accused who owned or possessed the firearm does
not have the corresponding license or permit to possess the same.
(People -vs- Ricolito Rugay, et al., 291 SCRA 692)
Where the accused is convicted of violation of Republic Act 8294 and meted a penalty less than six (6)
years, and a fine 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)
In the light of "People -vs- Martin Simon," 234 SCRA 555, and Articles 13 and 14, in relation to Article 63,
of the Revised Penal Code and the Indeterminate Sentence Law for violation of the Revised Penal Code
may now be applied for violation of PD 1866, as amended and Rep[ublic Act 6425, as amended.
Even if a person is licensed to possess a firearms but brings out firearm outside of his residence without
permit therefor, he is guilty of violation of the last paragraph of Section 1 of PD 1866, as amended. A
Mission Order cannot take the place of a license. A Mission Order can only be issued to one licensed to
possess a firearm.
(Pedrito Pastrano -vs- Court of Appeals, et al., 281 SCRA 287)
If the accused borrowed a gun from another who is licensed to possess firearm, may the former be
liable for violation of 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 PD 1866, as amended. A license to possess a firearm and a
permit to carry a licensed firearm outside of his residence is not transferable.
(Pedrito Pastrano -vs- Court of Appeals, et al., supra)
Even if the firearm subject of the crime is not adduced in evidence one may still be convicted of
possession of an unlicensed firearm as long as proof was adduced that the acused was in possession of a
firearm.
(People -vs- Felicisimo Narvasa, GR No.
128618, November 16, 1998)
NOTE: Under Republic Act 8294, the penalty depends upon the caliber of the gun. Suppose there is no
testimony as to the caliber of the gun?
Where a security guard was given by his employer, a security agency, a firearm, and the accused
assumed that the employer secured the license for the firearm but that it turned out that the employer
failed to get any license, the security guard is not criminally liable. The security guard has the right to
assume that the security agency secured the license.
(Ernesto Cuenca -vs- People, 33 SCRA 522)
If a constabulary soldier entrusted his gun to the accused for safekeeping and later the accused found in
possession of the gun, the accused is guilty of possession of unlicensed firearm. To exculpate himself,
the accused must prove absence of animus possidendi.
(People -vs- Perlito Soyang, et al., 110 Phil. 565, 583)
A secured a loan from B and pledged his unlicensed firearm as security for the loan. A promised to pay
his loan and retrieve the firearm as soon as he had money. B found in possession of the unlicensed
firearm. For the court to sustain the contention of B is to authorize the indefinite possession by B of the
unlicensed firearm because there was no way to determine when A could pay his account.
(People -vs- Cornelio Melgas, 100 Phil. 298)
If a licensed firearm if used to commit Murder or Homicide, such circumstances is merely a special
aggravating circumstance which must be alleged in the Information and cannot be offset by any
mitigating circumstance. (People -vs- Meriato Molina, et al., G.R. No. 115835, July 22, 1998; People -vsNarvasa, G.R. no. 128618 November 18, 1998)
The Decision of the Supreme Court in People -vs- Paterno Tac-an, 182 SCRA 601; People -vs- Jesus
Deunida, and People -vs- Barros and People -vs- Daniel Quijada 259 SCRA 191 had been overtaken by
Republic Act 8294.
Under the amendment, the death penalty may now be imposed if the accused is convicted of Murder
with the use of licensed or unlicensed firearms.

As long as the accused is proved to have been in possession of the unlicensed firearm even if the firearm
is not adduced in evidence, conviction under the law is proper.
(People -vs- Felicisimo Narvasa, supra)

Republic Act 8294 took effect on July 6, 1997.

If the accused is charged of Murder and violation of PD 1866 and during the trial, Republic Act 8294 took
effect, the accused cannot be convicted of violation of PD 1866, as amended. Neither should the
possession of an unlicensed firearm be considered as an aggravating circumstance as it will be less
favorable to the accused. If the accused used a sumpak to kill the victim, the prosecution must prove
that he had no license or permit to possess the sumpak.
(People -vs- Cipriano de Vera,
G.R. No. 121462-63, June 9, 1999)
Compare "People -vs- Wilfredo Filoteo," 290 SCRA 627 where the accused was convicted of Murder and
violation of PD 1866 and during the pendency of the appeal, Republic Act 8294 took effect. Our Supreme
Court affirmed the conviction of the Accused of two (2) crime of Homicide and violation of PD 1866, as
amended, and applied the penalty for the crimes under the amendment.
In "People -vs- Veriato Molina, et al.," 292 SCRA 742, our Supreme Court En Banc declared that where
the accused was convicted of said crio,es, by the Trial Court but that during the pendency of the appeal,
with the Supreme Court, Republic Act 8294 took effect, the accused should only be convicted of Murder
with the use of an unlicensed firearm as mere a special aggravating circumstance.
Murder, under Republic Act 8294, is used in its generic term and, hence, includes Parricide
(People versus Octavio Mendoza,
GR No. 109270-80, January 18,1999)
A United States carbine M1, caliber .3-0 is a high-powered gun because it is capable of emitting two or
three bullets in one squeeze.
(People -vs- Eduardo Gutierrez,
GR No. 132878, September 1999)
It is not necessary that the firearm be produced and offered in evidence for Republic Act 8294 to apply.
It is not enough that there is evidence of the existence of the gun which can be established either by
testimony or presentation of the gun itself.
Possession of an unlicensed firearm and used in killing is a special aggravating circumstance.
(People -vs- Felicisimo Narvasa,
GR No. 128618, November 18, 1998)

The Decision of the Supreme Court in People versus Rex 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.
Possession under the law may either be actual physical possession or constructive possession. However,
although the crime under PD 1866, as amended, is malum prohibitum, however, there must be animus
possidendi, or intent to possess. Animus possidendi may be inferred from the fact that an unlicensed
firearm is under the apparent control and power of the accused. however, animus possidendi may be
contradicted if a person in possession of an unlicensed firearm does not assert a right thereto.
If the possession of an unlicensed gun is merely temporary, incidental or transient, the same is not
punishable under PD 1866. However, the law does not provide for a fixed period of time for one to be
deemed in "possession" of an unlicensed firearm. (People -vs- Rolando Verches, 233 SCRA 174). Each
factual milieu must be considered.

IMPLICATION BY RA 8294 ON PD 1866 (ILLEGAL POSSESSION OF FIREARMS)

P.D. 1866, which codified the laws on illegal possession of firearms, was amended on June 6, 1997 by
Republic Act 8264. Aside from lowering the penalty for said crime, R.A. 8294 also provided that if
homicide or murder is committed with the use of an unlicensed firearm, such use shall be considered as
a special aggravating circumstance. This amendment has two (2) implications: first, the use of an
unlicensed firearm in the commission of homicide or murder shall not be treated as a separate offense,
but merely as a special aggravating circumstance; second, as only a single crime (homicide or murder
with the aggravating circumstance of illegal possession of firearm) is committed under the law, only one
penalty shall be imposed on the accused.
Prescinding therefrom, and considering that the provisions of the amendatory law are favorable to
herein appellant, the new law should be retroactively applied in the case at bar. It was thus error for the
trial court to convict the appellant of two (2) separate offenses, i.e., Homicide and Illegal Possession of
Firearms, and punish him separately for each crime. Based on the facts of the case, the crime for which
the appellant may be charged is homicide, aggravated by illegal possession of firearm, the correct
denomination for the crime, and not illegal possession of firearm, aggravated by homicide as ruled by
the trial court, as it is the former offense which aggravates the crime of homicide under the amendatory
law.

EVEN IF ACCUSED ADMITTED THAT HE HAS NO LICENSE, SUCH ADMISSION IS NOT SUFFICIENT PROOF OF
ILLEGAL POSSESSION OF FIREARM
Hence, in the case at bar, although the appellant himself admitted that he had no license for the gun
recovered from his possession, his admission will not relieve the prosecution of its duty to establish

beyond reasonable doubt the appellant's lack of license or permit to possess the gun. In 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 even establish a prima facie case.
It merely bolsters the case for the prosecution but does not stand as proof of the fact of absence or lack
of a license." (emphasis supplied) (PP -vs- JULIAN CASTILLO Y LUMAYRO, G.R. No. 131592-93, Feb. 15,
2000)
ELEMENTS OF ILLEGAL POSSESSION OF FIREARMS
To convict an accused for illegal possession of firearms and explosive under P.D. 1866 as amended, two
(2) essential elements must be indubitably established, viz: (a) the existence of the subject firearm or
explosive which may be proved by the presentation of the subject firearm or explosive or by the
testimony of witnesses who saw accused in possession of the same, and (b) the negative fact that the
accused had no license or permit to own or possess the firearm or explosive which fact may be
established by the 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.
In the case at bar, the prosecution failed to prove the second element of the crime, i.e., the lack of
license or permit of appellant Cortez to possess the hand grenade. Although the hand grenade seized by
PO2 Santos from appellant was presented in court, the records bear that PO2 Santos did not submit the
grenade to the PNP Firearms and Explosives Unit for verification. This explains why no certification or
testimony was adduced by the prosecution at the trial to prove that appellant Cortez was not licensed to
possess the explosive. The failure of the prosecution to adduce this fact is fatal to its cause. We stress
that the essence of the crime penalized under P.D. 1866 is primarily the accused's lack of license or
permit to carry or possess the firearm, ammunition or explosive as possession by itself is not prohibited
by law.
MAY EXPLOSIVES BE GIVEN A PERMIT OR LICENSE?
In the case of an explosive, a permit or license to possess it is usually granted to mining corporations,

military personnel and other legitimate users. (PP -vs- BERNIE CORTEZ Y NATANIO, ET AL., G.R. Nos.
131619-20, Feb. 1, 2000)
UNDER R.A. 8294 A SEPARATE CONVICTION FOR ILLEGAL POSSESSION OF FIREARMS AND FOR HOMICIDE
IS NOT ALLOWED
With respect to the conviction of accused-appellant for illegal possession of firearms under P.D. No.
1866, it was held in the case of People vs. Molina and reiterated in the recent case of People vs. Ronaldo
Valdez, that in cases where murder or homicide is committed with the use of an unlicensed firearm,
there can be no separate conviction for 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 murder or homicide is simply considered as an aggravating circumstance in the murder or
homicide and no longer as a separate offense. Furthermore, the penalty for illegal possession of
firearms shall be imposed provided that no crime is committed. In other words, where murder or
homicide was committed, the penalty for illegal possession of firearms is no longer imposable since it
becomes merely a special aggravating circumstance. (PP -vs- AUGUSTO LORETO RINGOR, JR., G.R. No.
123918, Dec. 9, 1999)
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Thursday, June 19, 2008

Special Penal Laws, Reviewer 2
ANTI-WIRE TAPPING LAW
(RA 4200)
Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable, or by using any other device or arrangement,
to secretly overhear, intercept, or record such communication or spoken word by using a device
commonly known as a dictaphone or dictagraph or dectaphone or walkie-talkie or tape recorder, or
however otherwise described:
It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next
preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such
record, or copies thereof, of any communication or spoken word secured 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 thereof, either verbally or in writing, or to furnish
transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such
record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned
in section 3 hereof, shall not be covered by this prohibition.

LISTENING TO CONVERSATION
IN EXTENSION LINE OF TELEPHONE
IS NOT WIRE-TAPPING
An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other
devices enumerated in Section 1 of RA 4200 as the use thereof cannot be considered as tapping the wire
or cable of a telephone line. The telephone extension in this case was not installed for that purpose. It
just happened to be there for ordinary office use. It is a rule in statutory construction that in order to
determine the true intent of the legislature, the particular clauses and phrases of the statute should not
be taken as detached and isolated expressions, but the whole and every part thereof must be
considered in fixing the meaning of any of its parts. (66 SCRA 113,120)

A PERSON CALLING ANOTHER BY PHONE

MAY SAFELY PRESUME THAT THE OTHER
MAY HAVE AN EXTENSION LINE AND
RUNS THE RISK OF BEING HEARD BY A
3RD PARTY.
An extension telephone is an instrument which is very common especially now when the extended unit
does not have to be connected by wire to the main telephone but can be moved from place to place
within a radius of a kilometer or more. A person should safely presume that the party he is calling at the
other end of the line probably has an extension telephone and he runs the risk of a third party listening
as in the case of a party line or a telephone unit which shares its line with another.

MERE ACT OF LISTENING TO A

TELEPHONE CONVERSATION IN AN
EXTENSION LINE IS NOT PUNISHED BY
ANTI-WIRE TAPPING LAW
It can be readily seen that our lawmakers intended to discourage through punishment, persons such as
government authorities or representatives of organized groups from installing devices in order to gather
evidence for use in court or to intimidate, blackmail or gain some unwarranted advantage over the
telephone users. Consequently, the mere act of listening, in order to be punishable must strictly be with
the use of the enumerated devices in RA 4200 or others of similar nature. We are of the view that an
extension telephone is not among such devices or arrangements.
RAPE AS CRIME AGAINST PERSONS
(R.A. 8353)
Rape, When And How Committed
"1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:
"a) Through force, threat, or intimidation;
"b) When the offended party is deprived of reason or otherwise unconscious;
"c) By means of fraudulent machination or grave abuse of authority; and
"d) When the offended party is under twelve (12) years of age or is demented, even though none of the
circumstances mentioned above be present.
"2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit
an act of sexual assault by inserting his penis into another person's mouth or anal orifice, or any

instrument or object, into the genital or anal orifice of another person.

WHEN INEXCUSABLE IMPRUDENCE ON

PART OF VICTIM AS TO IDENTITY OF
OFFENDER IS NOT RAPE
The evidence shows that this mistake was purely a subjective configuration of Zareen's mind an
assumption 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 was Enrico.
In fact, Silvino precisely, and confidently, told her, "Zareen, it's not Ricky, it's Jun. I love you." It is thus
obvious that whatever mistake there was could only be attributable to Zareen and her inexcusable
imprudence and to nobody else. Clearly, the fault was hers. She had the opportunity to ascertain the
identity of the man but she preferred to remain passive and allow things to happen as they did. Silvino
never used force on her and was even most possibly encouraged by the fact that when he pulled down
her panties she never objected; when her legs were being parted she never objected; and, when he
finally mounted her she never objected. Where then was force?
Third, Zareen was not deprived of reason or otherwise unconscious when the accused had intercourse
with her. 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. Thuswise it cannot be said that
she was deprived of reason or unconscious. She knew, hence was conscious, when her panties were
being pulled down; she knew, hence was conscious, when her legs were being parted to prepare for the
sexual act; she knew, hence was conscious, when the man was pulling down his briefs to prepare
himself likewise for the copulation; she knew, hence was conscious, when the man mounted her and
lusted after her virtue. Her justification was that she never objected to the sexual act from the start
because she thought that the man was her boyfriend with whom she was having sex almost every night
for the past three (3) weeks as they were getting married and wanted already to have a baby. In other
words, her urge could not wait for the more appropriate time. (People v. Salarza, Jr.)

NATURE OF INTIMIDATION IN RAPE CASES

Intimidation is addressed to the mind of the victim. It is subjective and its presence cannot be tested by
any hard-and-fast rule, but must be viewed in the light of the victims perception and judgement at the
time of the crime.
In the case at bar, at the time the crime was committed, the victim was 40 yrs. old, 5 months pregnant,
unarmed and married to a person older than her by almost 20 yrs.. In contrast, appellant was in his 20s,
armed with a gun and purportedly in the company of several NPA members. The crime happened in the
evening and in a place where help was impossible. The nearest neighbor of the victim is some 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)

WHEN INTIMIDATION IS SUSTAINED

BY MORAL ASCENDANCY IN RAPE
Intimidation in rape cases is not calibrated nor governed by hard and fast rules. Since it is addressed to
the victim's and is therefore subjective, it must be viewed in light of the victim's perception and
judgment at the time of the commission of the crime. It is enough that the intimidation produced fear
fear that if the victim did not yield to the bestial demands of the accused, something far worse would
happen to her at that moment. Where such intimidation existed and the victim was cowed into
submission as a result thereof, thereby rendering resistance futile, it would be the height of
unreasonableness to expect the victim to resist with all her might and strength. If resistance would
nevertheless be futile because of intimidation, then offering none at all does not mean consent to the
assault so as to make the victim's submission to the sexual act voluntary.
In any event, in a rape committed by a father against his own daughter, as in this case, the former's
moral ascendancy or influence over the latter substitutes for violence or intimidation. Likewise, it must
not be forgotten that at her tender age of 14 years, EDEN could not be expected to act with the
equanimity of disposition and with nerves of steel, or to act like a mature and experienced woman who
would know what to do under the circumstances, or to have courage and intelligence to disregard the
threat. Even in cases of rape of mature women, this Court recognized their different and unpredictable
reactions. Some may shout; some may faint; and some may be shocked into insensibility; while others
may openly welcome the intrusion. (People v. Agbayani; GR 122770, Jan. 16, 98)

TEST TO DETERMINE WHETHER A WOMAN VOLUNTARILY SUBMITTED TO SEXUAL INTERCOURSE

Physical resistance is not the sole test to determine whether or not a woman involuntarily succumbed to
the lust of an accused. Jurisprudence holds that even though a man lays no hand on a woman, yet if by
array of physical forces he so overpowers her mind that she does not resist or she ceases resistance
through fear of greater harm, the consummation of unlawful intercourse by the man is rape. (Pp. V.
Mostrales; GR 125937, Aug.28, 1998)

DATE OF COMMISSION OF RAPE NOT ESSENTIAL ELEMENT OF SAID CRIME

It is settled that even a variance of a few months between the time set out in the indictment and that
established by the evidence during the trial has been held not to constitute an error so serious as to
warrant reversal of a conviction solely on that score. The failure of the complainant to state the exact
date and time of the commission of the rape is a minor matter
(Pp. V. Bernaldez; GR 109780,Aug. 17, 1998)

EXAMPLE OF VIRTUAL CONFESSION OF FACT AND NOT IN LAW IN CASES OF RAPE

It is conceded that after the rape, Accused sent complainant two letters in which he implored her
forgiveness and offered to leave his wife so that he could be with her. In fine, appellant sealed his own
fate by admitting his crime under a seal of virtual confession in fact, if not in law. (Pp. V. Prades; GR
127569, July 30, 1998)
CHILD BORN BY REASON OF RAPE
MUST BE ACKNOWLEDGED BY OFFENDER
UPON ORDERS OF THE COURT
Furthermore, since ANALIZA begot a child by reason of the rape, DANTE must acknowledge and support
the offspring pursuant to Article 345 of the Revised Penal Code in relation to Article 201 of the Family
Code. (People v. Alfeche)
DWELLING AS AGGRAVATING
CIRCUMSTANCE IN RAPE CASES
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 circumstance aggravates a felony where
the crime is committed in the dwelling of the offended party, if the latter has not given provocation. In
the instant case, the aforesaid circumstance of dwelling was definitely present in the commission of the
crime of rape with the use of a deadly weapon. (Pp. V. Prades; GR 127569, July 30, 1998)
INDEMNITY IN CERTAIN CASES OF RAPE
The recent judicial prescription is that the indemnification for the victim shall be in the increased
amount of P75,000.00 if the crime of rape is committed or effectively qualified by any of the
circumstances under which the death penalty is authorized by the applicable amendatory laws. (Pp. V.
Prades; GR127569, July 30, 1998)
MORAL DAMAGES NEED NOT BE ALLEGED
AND PROVED IN CASES OF RAPE
Indeed, the conventional requirement of allegata et probata in civil procedure and for essentially civil
cases should be dispensed with in criminal prosecutions for rape with the civil aspect included therein,
since no appropriate pleadings are file wherein such allegations can be made. (Pp. V. Prades; GR 127569,
July 30, 1998)
MEANING OF DEADLY WEAPON
IN CASES OF RAPE

A deadly weapon is any weapon or instrument made and designed for offensive or defensive
purposes, or for the destruction of life or thee infliction of injury; or one which, from the manner used,
is calculated or likely to produce 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)

FORCE AND INTIMIDATION NOT

NEEDED IN RAPE OF RETARDATE
Although the information alleged force, threats, and intimidation, it nevertheless also explicitly stated
that Tessie is a mentally retarded person. We have held in a long line of cases that if the mental age of
a woman above 12 years is that of a child below 12 years, even if she voluntarily 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 accused would still be liable for rape under
the 3rd circumstance of Art. 335. The rationale therefor is that if sexual intercourse with a victim under
12 years of age is rape, then it should follow that carnal knowledge of a woman whose mental age is
that of a child below 12 years would constitute rape. (People v. Hector Estares; 12/5/97)
USE OF FORCE OR INTIMIDATION NOT
AN ELEMENT OF STATUTORY RAPE
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, who was below 12 years
of age at the time of the sexual assault. In other words, it is not relevant to this case whether appellant
slapped or boxed the victim, or whether he used a single-bladed or a double-edged knife. (People v.
Oliva; 12/5/97)
RAPE CAN BE COMMITTED IN
MANY DIFFERENT PLACES
It has been emphasized that rape can be committed in many different places, including places which to
many would appear to be unlikely and high-risk venues for sexual advances. Thus, rape has been
committed even in places where people congregate, in parks, along the roadside, within school
premises, inside a house where there are other occupants, and even in the same room where other
members of the family are also sleeping. (People v. Gementiza; 1/29/98)

WHEN SWEETHEART DEFENSE

IS TENABLE IN RAPE
The sweetheart defense put up by the accused merits serious consideration. While the theory does
not often gain favor with the court, such is not always the case if the hard fact is that the accused and
the supposed victim are in fact intimately related except that, as is true in most cases, the relationship is

either illicit, or the parents are against it. In such instances, it is not improbable that when the
relationship is uncovered, the victims parents would take the risk of instituting a criminal action rather
than admit to the indiscretion of their daughter. And this, as the records reveal, is what happened in this
case. (People vs Rico Jamlan Salem, October 16/97)

A MEDICAL EXAMINATION OF VICTIM

IS NOT ELEMENT OF RAPE
A medical examination is not an indispensable element in a prosecution for rape. The accused may be
convicted on the sole basis of complainants testimony, if credible, and the findings of the medico-legal
officer do not disprove the commission of rape. People v Jenelito Escober Y Resuento, Nov 6/97)
HEINOUSNESS OF RAPE OF
ONES DESCENDANT
In the case before us, the accused raped his own flesh and blood at such a tender age of eleven. He thus
violated not only he purity and her trust but also the mores of his society which he has scornfully
defined. By inflicting his animal greed on her in a disgusting coercion of incestuous lust, he forfeits all
respect as human being and is justly spurned by all, not least of all, by the fruit of his own loins whose
progeny he has forever stained with his shameful and shameless lechery. People v jenelito Escober Y
Resuento, Nov 6/97)

MERE DISCIPLINARY CHASTISEMENT

IS NOT ENOUGH TO DOUBT CREDIBILITY
OF RAPE VICTIM WHO IS A DESCENDANT
Mere disciplinary chastisement is not strong enough to make daughters in a Filipino family invent a
charge that would only bring shame and humiliation upon them and their own family and make them
the object of gossip among their classmates and friends. It is unbelievable that Jacqueline would
fabricate a serious criminal charge just to get even with her father and to emphasize with her sister. The
sisters would not contrive stories of defloration and charge their own father with rape unless these
stories are true. For that matter, no young Filipina of decent repute would falsely and publicly admit
that she had been ravished and abused considering the social stigma thereof. People v Tabugoca, GR No.
125334)
SODOMY IS NOT THE SAME AS IGNOMINY NOR CAN IT BE CONSIDERED AS IGNOMINY.
"Ignominy is a circumstance pertaining to the moral order, which adds disgrace and obliloquy to the
material injury caused by the crime." Thus, for ignominy to be appreciated as an aggravating
circumstance in the instant case, it must be shown that the sexual assault on Francis Bart was done by

accused-appellant to put the former to shame before killing him. This is clearly not the case here for
accused-appellant's intention was shown to be the commission of sexual abuse on the victim as an act
of revenge for his similar experience as a child.
WHEN THE INFORMATIONS ON RAPE CASES FAILED TO ALLEGE ACTUAL RELATIONSHIP ETC. HENCE
DEATH PENALTY CANNOT BE IMPOSED
In this case, the information's in Criminal Case Nos. 8899-8900 alleged that accused-appellant, "who is
the stepfather of the private offended party" by "force, violence and intimidation" succeeded in having
carnal knowledge of the latter when she was then 14 and 13 years old, respectively. On the otherhand,
the information in Criminal Case Nos. 8945-8946 alleged that accused-appellant, "who. is the
stepfather of victim Jenny Macaro" succeeded in having carnal knowledge of the latter, who was a girl
below 12 years old. As already noted, contrary to these allegations, accused-appellant is not really the
stepfather of complainants Lenny and Jenny because accused-appellant and complainants' mother were
not legally married but were merely living in common-law relation. In fact, Lenny and Jenny
interchangeably referred to accused-appellant as their stepfather, "kabit," "live-in partner ng Mama ko,"
"tiyo," and "tiyuhin." Complainants' sister-in-law, Rosalie Macaro, also testified that her "mother-in-law
is not legally married to accused-appellant." Accused-appellant likewise said on direct and crossexamination that he was not legally married to the mother of the complainants, and he referred to her
as his live-in partner. This was confirmed by Emma Macaro, mother of the complainants. Although the
rape of a person under eighteen (18) years of age by the common-law spouse 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 information's. What was alleged was that he is the
stepfather of the complainants.
INFORMATION IN RAPE CASES WITH USE OF DEADLY WEAPON MUST BE ALLEGED OTHERWISE DEATH
PENALTY, CANNOT BE IMPOSED
Neither can accused-appellant be meted the death penalty in Criminal Case No. 8900 where he
committed the rape after threatening the victim, Lenny Macaro, with a knife. Under Art. 335 of the
Revised Penal Code, simple rape is punishable by "reclusion perpetua." When the rape is committed
"with the use of a deadly weapon," i.e., when a deadly weapon is used to make the victim submit to the
will of the offender, the penalty is reclusion perpetua to death." This circumstance must however be
alleged in the information because it is also in the nature of a qualifying circumstance which increases
the range of the penalty to include death. In Criminal Case No. 8900, while complainant Lenny testified
that accused-appellant raped her after threatening her with a knife, the "use of a deadly weapon" in the
commission of the crime was not alleged in the information. Therefore, even if the same was prove, it
cannot 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., reclusion
perpetua. Accordingly, the accused-appellant should be sentenced to the penalty of reclusion perpetua.
Accordingly, the accused-appellant should be sentenced to the penalty of reclusion perpetua for each of
the four counts of rape. (PP -vs- FELIXBERTO FRAGA Y BAYLON, G.R. Nos. 134130-33, April 12, 2000)
EXAMINATIONS OF ALL SPECIMENS IN DRUG CASES NOT NECESSARY

We are not persuaded by the claim of accused-appellants that in order for them to be convicted of
selling 2,800 grams of marijuana, the whole specimen must be tested considering that Republic Act 7659
imposes a penalty dependent on the amount or the quantity of drugs seized or taken. This Court has
ruled that a sample from one of the packages is logically presumed to be representative of the entire
contents of the package unless proven otherwise by accused-appellant. (PP -vs- DIOLO BARITA Y SACPA,
ET AL., G.R. No. 123541, Feb. 8, 2000)
MEDICAL EXAMINATION NOT REQUIRED IN RAPE CASES
This Court has also ruled that a medical examination is not indispensable to the prosecution of rape as
long as the evidence on hand convinces the court that a conviction of rape is proper.
WHEN CARNAL KNOWLEDGE IS CONSUMATED
It is worth mentioning that in rape cases, the prosecution is not required to establish penile penetration
because even the slightest touching of the female genitalia, or mere introduction of the male organ into
the labia of the pudendum constitutes carnal knowledge. (PP -vs- FERNANDO CALANG MACOSTA, alias
"DODONG" G.R. No. 126954, Dec. 14, 1999)
THE CHARGE OF RAPE DO NOT INCLUDE SIMPLE SEDUCTION. HENCE, IF ONE IS CHARGE WITH RAPE AND
IS NT PROVEN, ACCUSED CANNOT BE HELD GUILTY OF SIMPLE SEDUCTION.
Even as the prosecution failed to proved the use of force, violence and intimidation by the accusedappellant, we cannot convict the accused-appellant of the crime of simple seduction without offense to
the constitutional rights of the accused-appellant to due process and to be informed the accusation
against him. The charge of rape does not include simple seduction. (PP -vs LOLITO MORENO Y LANCION
alias "LOLOY" G.R. No. 115191, Dec. 21, 1999)
WHAT ARE THE ELEMENTS OF RAPE?
The elements of rape are: (1) that the offender had carnal knowledge of a woman; (2) that such act is
accomplished by using force or intimidation; or when the woman is deprived of reason or otherwise
unconscious; or when the woman is under twelve years of age or is demented.
MEANING OF TAKING ADVANTAGE OF SUPERIOR STRENGTH IN RAPE CASES
Taking advantage of superior strength means to purposely use excessive force out of proportion to the
means available to the person attacked. It is abuse of superior numbers or employment of means to
weaken the defense. This circumstance is always considered whenever there is notorious inequality of
forces between the victim and the aggressor, assuming a situation of superiority notoriously
advantageous for the aggressor deliberately chosen by him in the commission of the crime. To properly
appreciate it, it is necessary to evaluate not only the physical condition of the parties and the arms or
objects employed but the incidents in the total development of the case as well.
Moreover, like the crime of parricide by a husband on his wife, abuse of superior strength Is inherent in
rape. It is generally accepted that under normal circumstances a man who commits rape on a woman is
physically stronger than the latter. (PP -vs- EDGARDO DE LEON Y SANTOS, G.R. No. 128436, Dec. 10,
1999)

WHEN TESTIMONY OF VICTIM IS OVERLY GENERALIZED IN CRIME OF RAPE

Each and every charge of rape is a separate and distinct crime so that each of the sixteen other rapes
charged should be proven beyond reasonable doubt. The victim's testimony was overly generalized and
lacked specific details on how each of the alleged sixteen rapes was committed. Her bare statement that
she was raped so many times on certain weeks is clearly inadequate and grossly insufficient to establish
the guilt of accused-appellant insofar as the other sixteen rapes charged are concerned. In People vs.
Garcia, this Court succinctly observed that:
xxx the indefinite testimonial evidence that complainant was raped every week is decidedly inadequate
and grossly insufficient to establish the guilt of appellant therefor with the required quantum of
evidence. So much of such indefinite imputations of rape, which are uncorroborated by any other
evidence fall within this category. (PP -vs- EDMUNDO DE LEON Y JESUS, G.R. No 130985, Dec. 3, 1999
CONCURRENCE OF MINORITY OF VICTIM AND RELATIONSHIPS IN RAPE MUST BE ALLEGED SO THAT
DEATH PENALTY MAYBE IMPOSED
The concurrence of the minority of the victim and her relationship to the offender should be specifically
alleged in the information conformably with the accused's right to be informed of the accusation against
him. In this case, although the minority of Poblica and her relationship with appellant were established
by the prosecution beyond doubt, the death penalty cannot be imposed because these qualifying
circumstances were not specified in the information. It would be a denial of the right of the appellant to
be informed of the charges against him and consequently, a denial of due process if he is charged with
simple rape and convicted of its qualified form punishable by death although the attendant
circumstances qualifying the offense and resulting in capital punishment were not set forth in the
indictment on which he was arraigned. (PP -vs- CHARITO ISUG MAGBANUA, G.R. No. 128888, Dec. 3,
1999)

QUALIFYING CIRCUMSTANCE IN RAPE CASES MUST BE ALLEGED IN ORDER THAT DEATH PENALTY MAYBE
IMPOSED
This Court has ruled in a long line of cases that the circumstance under the amendatory provisions of
Section 11 of Republic Act 7659, the attendance of any of which mandates the single indivisible penalty
of death are in the nature of qualifying circumstances which cannot be proved as such unless alleged
with particularity in the information unlike ordinary aggravating circumstances which affect only the
period of the penalty and which may be proven even if not alleged in the information. It would be a
denial of the right of the accused to be informed of the charge against him and consequently, a denial of
due process, if he is charged with simple rape and will be convicted of its qualified form punishable by
death although the attendant circumstance qualifying the offense and resulting in capital punishment
was not alleged in the indictment under which he was arraigned. Procedurally, then, while the minority
of Renelyn and her relationship to the accused-appellant were established during the trial, the accusedappellant can only be convicted of simple rape because he cannot be punished for a graver offense that
that with which he was charged. Accordingly, the imposable penalty is reclusion perpetua. (PP -vsEDWIN R. DECENA, G.R. No. 131843, May 31, 2000)

IMPORTANT CONSIDERATION IN RAPE

Neither is the absence of spermatozoa in Delia's genitalia fatal to the prosecution's case. The presence
or absence of spermatozoa is immaterial in a prosecution for rape. The important consideration in rape
cases is not the emission of semen but the unlawful penetration of the female genitalia by the male
organ. (PP -vs- RODOLFO BATO alias 'RUDY BATO," G.R. No. 134939, Feb. 16, 2000)
WHEN RAPE IS NOT COMMITTED AND SWEETHEART THEORY GIVEN CREDENCE
First. Private complainant never objected or showed any resistance when accused-appellant allegedly
dragged her forcibly across the pedestrian overpass and brought her to an undisclosed place at Quiapo.
Although he was holding her wrist tightly, she could have easily extricated herself form him on several
occasions: (a) while they were inside the bus bound for Quiapo; (b) when they alighted form the bus and
roamed the sidestreets of Quiapo; and especially so, (c) when they entered the hotel and finally the
room where the alleged rape took place. Accused-appellant was unarmed and his tight grip could not
have prevented private complainant from at least shouting for help. Her demeanor was simply
inconsistent with that of the ordinary Filipina whose instinct dictates that the summon every ounce of
her strength and courage to thwart any attempt to besmirch her honor and blemish her purity. True,
women react differently in similar situations, but it is too unnatural for an intended rape victim, as in
this case, not to make even feeble attempt to free herself despite a myriad of opportunities to do so.
Second. The deportment of the private complainant after the alleged rape accentuates the dubiety of
her testimony. After the alleged rape, she did not leave immediately but even refused to be separated
from her supposed defiler despite the prodding of the latter. Worse, she went with him to the house of
his sister and there they slept together. Indeed this attitude runs counter to logic and common sense.
Surely private complainant would not risk a second molestation and undergo a reprise of the harrowing
experience. To compound matters, it took her four (4) days to inform her parents about this agonizing
episode in her life. Truly, her insouciance is very disturbing, to say the least.
Finally. The prosecution failed to substantiated any of its allegations. Instead, it opted to stand or fall on
the uncorroborated and implausible testimony of the private complainant. It is elementary in our rules
of evidence that a party must prove the affirmative of his allegations. (PP -vs- TOMAS CLAUDIO Y
MENIJIE, G.R. No. 133694, Feb. 29, 2000)
WHEN TWO AFFIDAVITS ARE EXECUTED BY THE COMPLAINANT IN A RAPE CASE, ONE FOR ATTEMPTED
RAPE AND ANOTHER FOR CONSUMMATED RAPE AND ARE INCONSISTENT WITH EACH OTHER,
CONVICTION CANNOT BE HAD
It is true that affidavits are generally subordinated in 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 the complainant's credibility when the said variance does not alter the essential
fact that the complainant was raped. Variance as to the time and date of the rape, the number of times
it was committed or the garments which the accused or the complainant wore at the time of the
incident do not generally diminish the complainant's credibility. However, the serious discrepancy
between the two sworn statements executed a day apart by the complainant in this case, bearing on a
material fact, is very substantial because it pertains to the essential nature of the offense, i.e., whether

the offense was consummated or merely attempted. In People vs. Ablaneda, wherein a housewife
executed a sworn statement for attempted rape and later changed the accusation to consummated rape
without a rational explanation, this Court held that the general rule does not apply when the
complainant completely changed the nature of her accusation. The contradiction does not concern a
trivial or inconsequential detail but involves the essential fact of the consummation of the rape. (PP -vsALBERT ERNEST WILSON, G.R. No. 135915, Dec. 21, 1999)
NATURE OF INCESTUOUS RAPE
Incestuous rape of a daughter by a father has heretofore been bitterly and vehemently denounced by
this Court as more than just a shameful and shameless crime. Rape in itself is a nauseating crime that
deserves the condemnation of all decent persons who recognize that a woman's cherished chastity is
hers alone to surrender at her own free will, and whoever violates this norm descends to the level of the
odious beast. But the act becomes doubly repulsive where the outrage is perpetrated on one's own
flesh and blood for the culprit is further reduced to a level lower than the lowly animal and forfeits all
respect otherwise due him as a human. (PP -vs- MELANDRO NICOLAS Y FAVELLA, G.R. Nos. 125125-27,
Feb. 4, 2000)
LOVE RELATIONSHIP DO NOT RULE OUT RAPE
Even assuming ex gratia argumenti that accused-appellant and private complainant were indeed
sweethearts as he claims, this fact alone will not extricate him from his predicament. The mere assertion
of a "love relationship" would not necessarily rule out the use of force to consummate the crime. It must
be stressed that in rape case, the gravamen of the offense is sexual intercourse with a woman against
her will or without her consent. Thus, granting arguendo that the accused and the victim were really
lovers this Court has reiterated time and again that "A sweetheart cannot be forced to have sex against
her will. Definitely, a man cannot demand sexual gratification from a fiance, worse, employ violence
upon her on the pretext of love. Love is not a license for lust." (PP -vs- DANTE CEPEDA Y SAPOTALO, G.R.
No. 124832, Feb. 1, 2000)
PLACES NOTORIOUS FOR HOLD-UPS DONE AT NIGHT - 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 the advantage of darkness," we cannot but agree with the trial court that
nighttime was purposely sought by accused-appellants "for the more successful consummation may be
perpetrated unmolested or so that they could escape more thoroughly." (PP -vs- FELIMON ALIPAYO Y
TEJADA, ET AL., G.R. No. 122979, Feb. 2, 2000)
RAPE MAY BE COMMITTED IN ALMOST ALL PLACES
Appellant considers it quite improbable for rape to be committed at a place within a well-lighted and
fairly well-populated neighborhood. This argument does not hold water. Rape can be commi9tted even
in places where people congregate, in parks, along the roadside, within school premises, inside a house
where there are other occupants, and even in the same room in the presence of other members of the
family. An overpowering wicked urge has been shown not to be deterred by circumstances of time or
place.

DEATH PENALTY CANNOT BE IMPOSED WHEN INFORMATION FAILED TO INDICATE THE AGE OF THE
VICTIM AND HER CORRECT RELATIONSHIP WITH THE ACCUSED
The penalty of death cannot be properly imposed since the indictment has failed to indicate the age of
the victim and her correct relationship with appellant, concurrent qualifying circumstances, essential in
the imposition of that penalty. Furthermore, appellant is not a "parent, ascendant, step-parent,
guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of
the parent of the victim." The latter's grandmother, Remedios Lustre, herself acknowledges that
appellant has just for a time been her common-law husband. (PP -vs- FEDERICO LUSTRE Y ENCINAS, G.R.
No. 134562, April 6, 2000)

COMPENSATORY DAMAGES IN CASES OF QUALIFIED RAPE

With regard to the award of compensatory damages, we have rule in People vs. Victor, which was later
reaffirmed in People vs. Prades, that "if the crime of rape is committed or effectively qualified by any of
the circumstances under which the death penalty is authorized by the present amended law, the
indemnity of the victim shall be in the increased amount of not less than P75,000.00." (PP -vs- ANTONIO
MAGAT Y LONDONIO, G.R. No. 130026, May 31, 2000)
NATURE OF INTIMIDATION IN CASE OF RAPE
In People vs. Luzorata, the Court held that intimidation was addressed to the mind of the victim and
therefore subjective, and its presence could not be tested by any hard-and-fast rule but must be viewed
in light of the victim's perception and judgment at the time of the crime. Thus, when a rape victim
becomes paralyzed with fear, she cannot be expected to think and act coherently, her failure to
immediately take advantage of the early opportunity to escape does not automatically vitiate the
credibility of her account. "Complainant cannot be faulted for not taking any action inasmuch as
different people react differently to a given type of situation, there being no standard form of human
behavioral response when one is confronted with a strange, startling or frightful experience." (PP -vsVICENTE BALORA Y DELANTAR, G.R. No. 124976, May 31, 2000)

EACH AND EVERY RAPE ALLEGED MUST BE PROVEN

Each and every charge of rape is a separate and distinct crime so that each of the sixteen other rapes
charged should be proven beyond reasonable doubt. The victim's testimony was overly generalized and
lacked specific details on how each of the alleged sixteen rapes was committed. Her bare statement that
she was raped so many times on certain weeks is clearly inadequate and grossly insufficient to establish
the guilt of accused-appellant insofar as the other sixteen rapes charged are concerned. In People vs.
Garcia this Court succinctly observed that:
xxx the indefinite testimonial evidence that complainant was raped every week is decidedly inadequate
and grossly insufficient to establish the guilt of appellant therefor with the required quantum of
evidence. So much of such indefinite imputations of rape, which are uncorroborated by any other
evidence fall within this category. (PP -vs- EDMUNDO DE LEON Y JESUS, G.R. No. 130985, Dec. 3, 1999)

AT THE START THERE MUST BE RAPE, BUT SUBSEQUENT EVENTS MAY BECOME A FACTOR THAT THE
REALTIONSHIP, ALTHOUGH INCESTOUS, CONVICTION FOR RAPE CANNOT BE HAD
"Complainant could have been raped the first time accused-appelant had carnal knowledge of her, when
she was 13 years old. This however, is not a prosecution for such rape. When she complained of having
been raped in this case, she was already 30 or 31 years old, 17 or 18 years after she had been allegedly
ravished for the first time by her father, the herein accused-appelant. During the said period of 17 or 18
years, neither complainant nor her parents denounced accused-appellant despite the fact that he
continued to have sexual relation allegedly without the consent of complainant. During this period, four
children were born to complainant and accused-appellant. Complainant and accused-appellant
practically cohabited, choosing the baptismal sponsors for their children, and even inviting friends and
relatives to the feasts. The relationship was known to neighbors. Thus, their relationship might be
incestuous, but it was not by reason of force or intimidation. For their part, while in the beginning
complainant's mother and sisters may have disapproved of the relationship, in the end, it would appear
that subsequently they just turned a blind eye on the whole affair. Given these facts, we cannot say that
on September 19, 1995 when accused-appellant had sexual intercourse with complainant, he
committed rape. (People v. Villalobos, G.R. 134294, 05/21/2001)
THE DELAY AND INITIAL RELUCTANCE OF A RAPE VICTIM TO MAKE PUBLIC THE ASSAULT ON HER VIRTUE
IS NEITHER UNKNOWN OR UNCOMMON. AS HELD IN LTHE CASE OF PEOPLE VS. MALAGAR
"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 the fear can last for quit a while.
There is also the natural reluctance of a woman to admit her sullied chastity, accepting thereby all the
stigma it leaves, and to then expose herself to the morbid curiosity of the public whom she may likely
perceived rightly or wrongly, to be more interested in the prurient details of the ravishment than in her
vindication and the punishment of the rapist. In People vs. Coloma (222 SCRA 255) we have even
considered an 8-year delay in reporting the long history of rape by the victim's father as understandable
and so not enough to render incredible the complaint of a 13-year old daughter. (PP -vs- CONRADO
CABANA @ RANDY, G.R. No. 127124, May 9, 2000)
WHEN THERE IS A SEPARATE CRIME OF RAPE AND ROBBERY IS COMMITTED
As related by Private Complainant Amy de Guzman, accused-appellant suddenly jumped over the
counter, 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 and consent. Thereafter,
he ordered her to proceed upstairs to get some clothes, so he could bring her out, saying he was not
leaving her alive. At this point, appellant conceived the idea of robbery because, before they could reach
the upper floor, he suddenly pulled Amy down and started mauling her until she lost consciousness;
then he freely ransacked the place. Leaving Amy for dead after repeatedly banging her head, first on the
wall, then on the toilet bowl, he took her bracelet, ring and wristwatch. He then proceeded upstairs
where he took as well the jewelry box containing other valuables belonging to his victim's employer.

Under these circumstance, appellant cannot be convicted of the special complex crime of robbery with
rape. However, since it was clearly proven beyond reasonable doubt that he raped Amy de Guzman and
thereafter robbed her and Ana Marinay of valuables totaling P16,000.00, he committed two separate
offenses -rape with the use of deadly weapon and simple robbery with force and intimidation against
persons.

CASES WHEREIN THE SCANDAL RESULTING FROM RELATIONS OF COMPLAINANT AND ACCUSED IMPELS
THE COMPLAINANT OR HER RELATIVES TO FILE COMPLAINT OF RAPE AGAINST THE ACCUSED BUT DID
NOT PROSPER
Thus in People vs. Lamarroza, a case involving an eighteen-year old woman "intellectually weak and
gullible," the Court found that the alleged victim's family was "obviously scandalized and embarrassed
by (the victim) Elena's 'unexplained' pregnancy," prompting them to cry "rape." The Court acquitted the
accused.
In People vs. Domogoy, private complainant was seen having sexual intercourse in the school premises
with appellant therein by the latter's co-accused. "It is thus not farfetched," the Court held, "for
complainant to have instituted the complainant for rape against the three to avoid being bruited around
as a woman of loose morals."
Similarly, in People vs. Castillon, the Court considered the complainant's agreement to engage in premarital sexual intercourse "already a disgrace to her family, what more of her acquiescence to have
sexual intercourse on a stage near the vicinity where the JS program was being held and prying eyes and
ears abound."
In People vs. Bawar, the complainant was caught in flagrante by her sister-in-law engaging in sexual
intercourse with the accused, a neighbor. The Court gathered from the complainant's testimony that
"she filed the case because she thought it would be better to cry 'rape' and bring suit to salvage and
redeem her honor, rather than have reputation sullied in the community by being bruited around and
stigmatized as an adulterous woman."
People vs. Godoy also involved an adulterous relationship between the accused, who was married, and
his seventeen-year old student. In acquitting the accused, the Court held:
The Court takes judicial cognizance of the fact that in rural areas in the Philippines, young ladies are
strictly required to act with circumspection and prudence. Great caution is observed so that their
reputations shall remain untainted. Any breath of scandal which brings dishonor to their character
humiliates their entire families. It could precisely be that complainant's mother wanted to save face in
the community where everybody knows everyone else, and in an effort to conceal her daughter's
indiscretion and escape the wagging tongues of their small rural community, she had to weave the
scenario of this rape drama.
Here, the elopement of a thirteen-year old with her nineteen-year old second cousin no doubt caused
quite a tempest in the otherwise serene community of Vintar, Ilocos Norte. That complainant's parents
were against their relationship, as evidenced in one of her letters, makes it more likely that the charges
of rape were instigated to salvage the complainant's and her family's honor.
While the "sweetheart theory" does not often gain favor with this Court, such is not always the case if
the hard fact is that the accused and the supposed victim are, in truth, intimately related except that, as

is usual in most cases, either the relationship is illicit or the victim's parents are against it. It is not
improbable that in some instances, when the relationship is uncovered, the alleged victim or her parents
for that matter would take the risk of instituting a criminal action in the hope that the court would take
the cudgels for them than for the woman to admit her own acts of indiscretion. (PP -vs- ERWIN
AGRESOR, G.R. Nos. 119837-39, Dec. 9, 1999)

JUDGES SHOULD NOT BE OVERLY PROTECTIVE OF EVERY WOMAN IN RAPE CASES. THEY MUST LOOK AT
THE CHARGE WITH EXTREME CAUTION AND CIRCUSMPECTION
Rape is a very emotional word, and the natural human reactions to it are categorical: sympathy for the
victim and admiration for her in publicly seeking retribution for her outrageous misfortune, and
condemnation of the rapist. However, being interpreters of the law and dispensers of justice, judges
must look at a rape charge without those proclivities and deal and with it with extreme caution and
circumspection. Judges must free themselves of the natural tendency to be overprotective of every
woman decrying her having been sexually abused and demanding punishment for the abuser. While
they ought to be cognizant of the anguish and humiliation the rape victim goes through as she demands
justice, judges should equally bear in mind that their responsibility is to render justice based on the law.
(PP -vs- EDWIN LADRILLO, G.R. No. 124342, Dec. 8, 1999)

SEXUAL HARASSMENT LAW

(RA 7877)

WORK, EDUCATION OR TRAINING-RELATED

SEXUAL HARASSMENT DEFINED.
Work, education or training-related sexual harassment is committed by an employer, employee,
manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other
person who, having authority, influence or moral ascendancy over another in a work or training or
education environment, demands, requests or otherwise requires any sexual favor from the other,
regardless of whether the demand, request or requirement for submission is accepted by the object of
said Act.

WHEN SEXUAL HARASSMENT IS COMMITTED:

Work, Education or Training-related Sexual Harassment Defined
Work, education or training-related sexual harassment is committed by an employer, employee,
manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other
person who, having authority, influence or moral ascendancy over another in a work or training or

education environment, demands, requests or otherwise requires any sexual favor from the other,
regardless of whether the demand, request or requirement for submission is accepted by the object of
said Act.
In work-related or employment environment:
(1) The sexual favor is made as a condition in the hiring or in the employment, re-employment or
continued employment of said individual, or in granting said individual favorable compensation, terms,
conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting,
segregating or classifying the employee which in any way would discriminate, deprive or diminish
employment opportunities or otherwise adversely affect said employee;
(2) The above acts would impair the employee's rights or privileges under existing labor laws; or
(3) The above acts would result in an intimidating, hostile, or offensive environment for the employee.
In an education or training environment:
(1) Against one who is under the care, custody or supervision of the offender;
(2) Against one whose education, training, apprenticeship or tutorship is entrusted to the offender;
(3) When the sexual favor is made a condition to the giving of a passing grade, or the granting of honors
and scholarships or the payment of a stipend, allowance or other benefits, privileges, or considerations;
or
(4) When the sexual advances result in an intimidating, hostile or offensive environment for the student,
trainee or apprentice.
Any person who directs or induces another to commit any act of sexual harassment as herein defined, or
who cooperates in the commission thereof by another without which it would not have been
committed, shall also be held liable under this Act.

CHILD AND YOUTH WELFARE CODE

( PD 603 with Amendments)

RELIGIOUS INSTRUCTION
The religious education of children in all public and private schools is a legitimate concern of the Church
to which the students belong. All churches may offer religious instruction in public and private
elementary and secondary schools, subject to the requirements of the Constitution and existing laws.

TERMINATION OF RIGHTS OF PARENTS

When a child shall have been committed to the Department of Social Welfare or any duly licensed child
placement agency or individual pursuant to an order of the court, his parents or guardian shall
thereafter exercise no authority over him except upon such conditions as the court may impose.

VIOLATION OF PD 603 BY A CHILD

Prohibited Acts:
It shall be unlawful for any child to leave the person or 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 any person to induce him to leave such person or institution, except in case
of grave physical or moral danger, actual or imminent, to the child.
Any violation of this article shall be punishable by an imprisonment of not more than one year or by a
fine of not more than two thousand pesos, or both such fine and imprisonment at the discretion of the
court: Provided, That if the violation is committed by a foreigner, he shall also be subject to deportation.

CARE OF YOUTHFUL OFFENDER

HELD FOR EXAMINATION OR TRIAL
A youthful offender held for physical and mental examination or trial or pending appeal, if unable to
furnish bail, shall from the time of his arrest be committed to the care of the Department of Social
Welfare or the local rehabilitation center or a detention home in the province or city which shall be
responsible for his appearance in court whenever required: Provided, That in the absence of any such
center or agency within a reasonable distance from the venue of the trial, the provincial, city and
municipal jail shall provide quarters for youthful offenders separate from other detainees. The court
may, in its discretion, upon recommendation of the Department of Social Welfare or other agency or
agencies authorized by the Court, release a youthful offender on recognizance, to the custody of his
parents or other suitable person who shall be responsible for his appearance whenever required.

SUSPENSION OF SENTENCE AND COMMITMENT

OF YOUTHFUL OFFENDER
If after hearing the evidence in the proper proceedings, the court should find that the youthful offender
has committed the acts charged against him the court shall determine the imposable penalty, including
any civil liability chargeable against him. However, instead of pronouncing judgment of conviction, the
court shall suspend all further proceedings and shall commit such minor to the custody or care of the
Department of Social Welfare, or to any training institution operated by the government, or duly
licensed agencies or any other responsible person, until he shall have reached twenty-one years of age
or, for a shorter period as the court may deem proper, after considering the reports and

recommendations of the Department of Social Welfare or the agency or responsible individual under
whose care he has been committed.
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 the Court may
designate subject to such conditions as it may prescribe.

PD 1210
ARTICLE 191 OF PD 603 IS HEREBY
AMENDED TO READ AS FOLLOWS
"Article 101. Care of Youthful Offender Held for Examination or Trial. - A youthful offender held for
physical and mental examination or trial or pending appeal, if unable to furnish 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 province or city which shall be responsible for his
appearance in court whenever required: Provided, that in the absence of any such center or agency
within a reasonable distance from the venue of the trial, the provincial, city and municipal jail shall
provide quarters for youthful offenders separate from other detainees. The court may, in its discretion
upon recommendation of the Department of Social 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 person who shall be responsible for his appearance whenever required. However, in the
case of those whose cases fall under the exclusive jurisdiction of the Military Tribunals, they may be
committed at any military detention or rehabilitation center.

PD 1210
ARTICLE 192 OF PD 603 AS AMENDED IS FURTHER
AMENDED TO READ AS FOLLOWS:
"Art. 192. Suspension of sentence and Commitment of Youthful Offender. - If after hearing the evidence
in the proper proceedings, the court should find that the youthful offender has committed the acts
charged against him, the court, shall determine the imposable penalty, including any 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 interest of the public as well as that of
the offender will be served thereby, may suspend all further proceedings and commit such minor to the
custody or care of the Department of Social Services and Development or to any training institution
operated by the government or any other responsible person until he shall have reached twenty one
years of age, or for a shorter period as the court may deem proper, after considering the reports and
recommendations of the Department of Social Services and Development or the government training
institution or responsible person under whose care he has been committed.

Upon receipt of the application of the youthful offender for suspension of his sentence, the court may
require the Department of Social Services and Development to prepare and submit to the court a social
case study report over the offender and his family.
The Youthful offender shall be subject to visitation and supervision by a representative of the
Department of Social Services & Development or government training institution as the court may
designate subject to such conditions as it may prescribe.
The benefits of this article shall not apply to a youthful offender who has once enjoyed suspension of
sentence under its provisions or to one who is convicted of an offense punishable by death or life
imprisonment or to one who is convicted for an offense by the Military Tribunals.

PD 1179
APPEAL
The order of the court denying an application for suspension of sentence under the provisions of Article
192 above shall not be appealable."

RETURN OF THE YOUTHFUL

OFFENDER TO THE COURT
Whenever the youthful offender has been found incorrigible or has wilfully failed to comply with the
conditions of his rehabilitation programs, or should his continued stay in the training institution be
inadvisable, he shall be returned to the committing court for the pronouncement of judgment.
When the youthful offender has reached the age of twenty-one while in commitment, the court shall
determine whether to dismiss the case in accordance with the extent preceding article or to pronounce
the judgment conviction. In the latter case, the convicted offender may apply for probation under the
provisions of Presidential Decree Numbered Nine Hundred and Sixty-Eight.
In any case covered by this article, the youthful offender shall be credited in the service of his sentence
with the full time spent in actual commitment and detention effected under the provisions of this
Chapter."

RA 7610
CHILD ABUSE LAW

CHILD PROSTITUTION AND

OTHER SEXUAL ABUSE
Children, whether male or female, who for money, profit, or any other consideration or due to the
coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious
conduct, are deemed to be children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the
following:
(a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not
limited to, the following:
(1) Acting as a procurer of a child prostitute;
(2) Inducing a person to be a client of a child prostitute by means of written or oral advertisements or
other similar means;
(3) Taking advantage of influence or relationship to procure a child as prostitute;
(4) Threatening or using violence towards a child to engage him as a prostitute; or
(5) Giving monetary consideration goods or other pecuniary benefit to a child with intent to engage such
child in prostitution.
(b) Those who commit the act of sexual intercourse of lascivious conduct with a child exploited in
prostitution or subject to other sexual abuse; Provided, That when the victims is under twelve (12) years
of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of
Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be:
Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall
reclusion temporal in its medium period; and
(c) Those who derive profit or advantage therefrom, whether as manager or owner of the establishment
where the prostitution takes place, or of the sauna, disco, bar, resort, place of entertainment or
establishment serving as a cover or which engages in prostitution in addition to the activity for which
the license has been issued to said establishment.

ATTEMPT TO COMMIT
CHILD PROSTITUTION
There is an attempt to commit child prostitution under Section 5, paragraph (a) hereof when any person
who, not being a relative of a child, is found alone with the said child 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 circumstances which would lead a reasonable person to

believe that the child is about to be exploited in prostitution and other sexual abuse.
There is also an attempt to commit child prostitution, under paragraph (b) of Section 5 hereof when any
person is receiving services from a child in a sauna parlor or bath, massage clinic, health club and other
similar establishments. A penalty lower by two (2) degrees than that prescribed for the consummated
felony under Section 5 hereof shall be imposed upon the principals of the attempt to commit the crime
of child prostitution under this Act, or, in the proper case, under the Revised Penal Code.

CHILD TRAFFICKING
Any person who shall engage in trading and dealing with children including, but not limited to, the act of
buying and selling of a child for money, or for any other consideration, or 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.

ATTEMPT TO COMMIT
CHILD TRAFFICKING
There is an attempt to commit child trafficking under Section 7 of this Act:
(a) When a child travels alone to a foreign country without valid reason therefor and without clearance
issued by the Department of Social Welfare and Development or written permit or justification from the
child's parents or legal guardian;
(b) When a person, agency, establishment or child-caring institution recruits women or couples to bear a
children for the purpose of child trafficking; or
(c) When doctor, hospital or clinic official or employee, nurse, midwife, local civil registrar or any other
person simulates birth for the purpose of child trafficking;
(d) When a person engages in the act of finding children among low-income families, hospitals, clinics,
nurseries, day-care centers, or other child-during institutions who can be offered for the purpose of
child trafficking.
A penalty lower two (2) degrees than that prescribed for the consummated felony under Section 7
hereof shall be imposed upon the principals of the attempt to commit child trafficking under this Act.

OBSCENE PUBLICATIONS
AND INDECENT SHOWS

Any person who shall hire, employ, use, persuade, induce or coerce a child to perform in obscene
exhibitions and indecent shows, whether live or in video, or model in obscene publications or
pornographic materials or to sell or distribute the said materials shall suffer the penalty of prision mayor
in its medium period.
If the child used as a performer, subject or seller/distributor is below twelve (12) years of age, the
penalty shall be imposed in its maximum period.
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 play, scene, act, movie or show
or in any other acts covered by this section shall suffer the penalty of prision mayor in its medium
period.

OTHER ACTS OF NEGLECT, ABUSE,

CRUELTY OR EXPLOITATION AND
OTHER CONDITIONS PREJUDICIAL
TO THE CHILDS DEVELOPMENT
(a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or to be
responsible for other conditions prejudicial to the child's development including those covered by
Article 59 of Presidential Decree No. 603, as amended, but not covered by the Revised Penal Code, as
amended, shall suffer the penalty of prision mayor in its minimum period.
(b) Any person who shall keep or have in his company a minor, twelve (12) years or under or who in ten
(10) years or more his junior in any public or private place, hotel, motel, beer joint, discotheque,
cabaret, pension house, sauna or massage parlor, beach and/or other tourist resort or similar places
shall suffer the penalty of prision mayor in its maximum period and a fine of not less than Fifty thousand
pesos (P50,000): Provided, That this provision shall not apply to any person who is related within the
fourth degree of consanguinity or affinity or any bond recognized by law, local custom and tradition or
acts in the performance of a social, moral or legal duty.
(c) Any person who shall induce, deliver or offer a minor to any one prohibited by this Act to keep or
have in his company a minor as provided in the preceding paragraph shall suffer the penalty of prision
mayor in its medium period and a fine of not less than Forty thousand pesos (P40,000); Provided,
however, That should the perpetrator be an ascendant, stepparent or guardian of the minor, the penalty
to be imposed shall be prision mayor in its maximum period, a fine of not less than Fifty thousand pesos
(P50,000), and the loss of parental authority over the minor.
(d) Any person, owner, manager or one entrusted with the operation of may public or private place of
accommodation, whether for occupancy, food, drink or otherwise, including residential places, who

allows any person to take along with him to such place or places any minor herein described shall be
imposed a penalty of prision mayor in its medium period and a fine of not less than Fifty thousand pesos
(P50,000), and the loss of the license to operate such a place or establishment.
(e) Any person who shall use, coerce, force or intimidate a street child or any other child to :
(1) Beg or use begging as a means of living;
(2) Act as conduit or middlemen in drug trafficking or pushing; or
(3) Conduct any illegal activities, shall suffer the penalty of prision correccional in its medium period to
reclusion perpetua.
For purposes of this Act, the penalty for the commission of acts punishable under Articles 248, 249, 262,
paragraph 2, and 263, paragraph 1 of Act No. 3815, as amended, the Revised Penal Code, for the crimes
of murder, homicide, other intentional mutilation, and serious physical injuries, respectively, shall be
reclusion perpetua when the victim is under twelve (12) years of age. The penalty for the commission of
acts punishable under Article 337, 339, 340 and 341 of Act No. 3815, as amended, the Revised Penal
Code, for the crimes of qualified seduction, acts of lasciviousness with the consent of the offended
party, corruption of minors, and white slave trade, respectively, shall be one (1) degree higher than that
imposed by law when the victim is under twelve (12) years age.
The victim of the acts committed under this section shall be entrusted to the care of the department of
Social Welfare and Development.

CHILDREN AS ZONES OF PEACE

Children are hereby declared as Zones of Peace. It shall be the responsibility of the State and all other
sectors concerned to resolve armed conflicts in order to promote the goal of children as zones of peace.
To attain this objective, the following policies shall be observed.
(a) Children shall not be the object of attack and shall be entitled to special respect. They shall be
protected from any form of threat, assault, torture or other cruel, inhumane or degrading treatment;
(b) Children shall not be recruited to become members of the Armed Forces of the Philippines of its
civilian units or other armed groups, nor be allowed to take part in the fighting, or used as guides,
couriers, or spies;
(c) Delivery of basic social services such as education, primary health and emergency relief services shall
be kept unhampered;
(d) The safety and protection of those who provide services including those involved in fact-finding
missions from both government and non-government institutions shall be ensured. They shall not be
subjected to undue harassment in the performance of their work;

(e) Public infrastructure such as schools, hospitals and rural health units shall not be utilized for military
purposes such as command posts, barracks, detachments, and supply depots; and
(f) All appropriate steps shall be taken to facilitate the reunion of families temporarily separated due to
armed conflict.
RIGHTS OF CHILDREN ARRESTED
FOR REASONS RELATED TO
ARMED CONFLICT
Any child who has been arrested for reasons related to armed conflict, either as combatant, courier,
guide or spy is entitled to the following units;
(a) Separate detention from adults except where families are accommodated as family units;
(b) Immediate free legal assistance;
(c) Immediate notice of such arrest to the parents or guardians of the child; and
(d) Release of the child on recognizance within twenty-four (24) hours to the custody of the Department
of Social Welfare and Development or any responsible member of the community as determined by the
court.
If after hearing the evidence in the proper proceedings the court should find that the aforesaid child
committed the acts charged against him, the court shall determine the imposable penalty, including any
civil liability chargeable against him. However, instead of pronouncing judgment of conviction, the court
shall suspend all further proceedings and shall commit such child to the custody or care of the
Department of Social Welfare and Development or to any training institution operated by the
Government, or duly-licensed agencies or any other responsible person, until he has had reached
eighteen (18) years of age or, for a shorter period as the court may deem proper, after considering the
reports and recommendations of the Department of Social Welfare and Development or the agency or
responsible individual under whose care he has been committed.
The aforesaid child shall subject to visitation and supervision Development or any duly-licensed agency
such other officer as the court may designate subject to such conditions as it may prescribe.
The aforesaid child whose sentence is suspended can appeal from the order of the court in the same
manner as appeals in criminal cases.
CONFIDENTIALITY
At the instance of the offended party, his name may be withheld from the public until the court acquires
jurisdiction over the case.
It shall be unlawful for any editor, publisher, and reporter or columnist in case of printed materials,

announcer or producer in case of television and radio broadcasting, producer and director of the film in
case of the movie industry, to cause undue and sensationalized publicity of any case of violation of this
Act which results in the moral degradation and suffering of the offended party.
PEDOPHILIA IS NOT INSANITY
When accused-appellant was committed to the National Center for Mental Health, he was not
diagnosed as insane but was suffering from pedophilia. Thus, there is no doubt in our mind that he was
sane during his two-year confinement in the center, pedophilia being dissimilar to insanity.

RA 7658
EMPLOYMENT OF CHILDREN
Children below fifteen (15) years of age shall not be employed except:
1) When a child works directly under the sole responsibility of his parents or legal guardian and where
only members of the employer's family are employed: Provided, however, That his employment neither
endangers his life, safety, health and morals, nor impairs his normal development; Provided, further,
That the parent or legal guardian shall provide the said minor child with the prescribed primary and/or
secondary education; or
2) Where a child's employment or participation in public entertainment or information through cinema,
theater, radio or television is essential: Provided, The employment contract is concluded by the child's
parents or legal guardian, with the express agreement of the child concerned, if possible, and the
approval of the Department of Labor and Employment: and Provided, That the following requirements
in all instances are strictly complied with:
(a) The employer shall ensure the protection, health, safety, morals and normal development of the
child;
(b) The employer shall institute measures to prevent the child's exploitation or discrimination taking into
account the 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.
In the above exceptional cases where any such child may be employed, the employer shall first secure,
before engaging such child, a work permit from the Department of Labor and Employment which shall
ensure observance of the child.
The Department of Labor and Employment shall promulgate rules and regulations necessary for the
effective implementation of this Section."

IF MINOR DO NOT APPLY FOR

SUSPENSION OF SENTENCE IT IS
DEEMED WAIVED. THE COURT CANNOT
MOTU PROPIO GIVE HIM THE BENEFITS
OF ART. 192
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 benevolent provisions of
Presidential Decree No. 603. The Court, therefore, has no other choice but to deny him this privilege.

DISCHARGE; REPORT AND ECOMMENDATION

OF THE DEPARTMENT OF SOCIAL WELFARE,
SUBJECT TO JUDICIAL REVIEW
It is not the responsibility of this Court to order the release of accused Ricky Galit without the benefit of
a review of the recommendation of the Department of Social Welfare by the trial court. Art 196 of PD
603 provides: "Art. 196. Dismissal of the case. If it is shown to the satisfaction of the court 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 before reaching the age of majority, upon
recommendation of the Department of Social Welfare, it shall dismiss the case and order his final
discharge." It is therefore clear that in cases where the DSWD recommends the discharge of a youthful
offender, it is the trial court before whom the report and recommendation is subject to judicial review.
Recommendation alone is not sufficient to warrant the release of a youthful offender. In reviewing the
DSWD's recommendation, the trial judge must not base his judgment on mere conclusions but should
seek out concrete, material and relevant facts to confirm that the youthful offender has 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 not to be tried anew for the same act for
which he was charged. The inquiry is not a criminal prosecution but is rather limited to the
determination of the offender's proper education and rehabilitation during his commitment in the
Training Center and his moral and social fitness to re-join the community. (Pp. V. Galit; GR 97432,
3/1/94)

SUSPENSION OF SENTENCE NOT APPLICABLE

IF PENALTY IS RECLUSION PERPETUA,
LIFE IMPRISONMENT OR DEATH
As aforesaid, however, accused Ricky Galit and Raquel Tagalog did not appeal from the judgment of the
trial court. Neither did the People question the suspension of their sentence. The benefits of suspension

of sentence are not available where the youthful offender has been convicted of an offense punishable
by life imprisonment or death. The last paragraph of section 2 of Presidential Decree No. 1210, which
amended certain provisions of P.D. 603, provides:
"The benefits of this article shall not apply to a youthful offender who has once enjoyed suspension of
sentence under its provisions or to one who is convicted of an offense punishable by death or life
imprisonment or to one who is convicted for an offense by the Military Tribunals." (Par. 4, Sec. 2, P.D.
No. 1179, as amended by P.D. No. 1210; emphasis supplied)
(Pp. v. Galit, supra.)

YOUTHFUL OFFENDER, TO BE CRIMINALLY LIABLE, ACCUSED, A 13 YEAR OLD, MUST ACT WITH
DISCERNMENT

There is a further obstacle that stands in the way of Estorque's conviction. While it has been proven that
he was only thirteen years old at the time of the incident, there are 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 intent to kill" as sufficient compliance as we have in the past he
would still not be held liable as no proof was offered during trial that he had so acted with discernment.
Accordingly, even if he was indeed a co-conspirator or an accessory, he would still be exempt from
criminal liability. (Pp. V. Cordova; GR 83373-74, 7/5/93)

EVERY ACCUSED IS PRESUMED TO BE SANE AT THE TIME OF COMMISSION OF THE CRIME

The law presumes all acts to be voluntary, and that it is improper to presume that acts were done
unconsciously. The quantum of evidence required to overthrow the presumption of sanity is proof
beyond reasonable doubt. Since insanity is in the nature of a confession and avoidance, it must be
proven beyond reasonable doubt. Moreover, an accused is presumed to have been sane at the time of
the commission of the crime in the absence of positive evidence to show that he had lost his reason or
was demented prior to or during the perpetration of the crime.
(Pp. v. Cordova, supra.)

FAILURE OF DEFENSE TO ASK FOR

SUSPENSION OF ARRAIGNMENT

NEGATES INSANITY
Appellant Eduardo Cordova did not even ask for the suspension of his arraignment on the ground that
he was 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 mental
condition which effectively renders him unable to fully understand the charge against him and to plead
intelligently thereto, shall be suspended. In the case at bar, Eduardo Cordova even took the witness
stand to testify. (Pp. V. Cordova, supra.)

CHILD & YOUTH WELFARE CODE,

NOT APPLICABLE TO DEATH OR
RECLUSION PERPETUA SENTENCE
The Child and Youth Welfare Code does not apply to those convicted of offenses punishable by death, or
reclusion perpetua (Presidential Decree No. 603, as amended by Presidential Decree N. 603, as
amended by Presidential Decree Nos. 1179 and 1210). The fact is Bolioc is now twenty-three years old.
He is not entitled to a suspended sentence. He is entitled to a two-degree reduction of the penalty (Art.
68, RPC). (Pp. V. Mendez; GR L-48131; 5/30/83)

SUSPENSION OF SENTENCE; CANNOT

BE AVAILED OF WHERE OFFENDER IS ALREADY OVER 21 YEARS OLD AT THE
TIME OF PROMULGATION OF HIS SENTENCE
It is true that Venancio Villanueva was a youthful offender as defined by Art. 189 because he was under
21 years of age when he committed the offense on February 22, 1974. However, when he was
sentenced on July 30, 1975, he was over 21 years old and under the terms of Art. 192 (as well as Art.
197) he was no longer entitled to suspension of sentence. (Villanueva v. CFI; GR L-45798, 12/15/82)

WHEN PRESIDENTIAL DECREE NO. 603

MAY BE GIVEN RETROACTIVE EFFECT
Where P.D. 603 is more favorable to the accused in that the sentence against them may he suspended,
said Decree may be given retroactive effect, not only with the end in view of giving force and effect to
the laudable policies for which the P.D. otherwise known as the Child and Youth Welfare Code was
promulgated, hut also in the light of the provisions of Article 22 of the Revised Penal Code. (People v.
Garcia; GR L-45280-81, 6/11/81)

PRESIDENTIAL DECREE NO. 603;

ALTERNATIVE COURSES OF ACTION
OF THE COURT WHEN YOUTHFUL
OFFENDER IS RETURNED AFTER
REACHING THE AGE OF MAJORITY
The trial court has two alternative courses of action with respect to a youthful offender whose sentence
it had suspended and who is returned to the court upon his reaching the age of majority. These are: (1)
to dismiss the case and order the final discharge of said offender; or (2) to pronounce the judgment of
conviction. In plain and simple language, it is either dismissal or sentence. (Pp. V. Garcia; supra.)

CIVIL LIABILITY OF YOUTHFUL

OFFENDER, DEFINED
The civil liability for damages referred to is apparently that obligation created by or arising from the
crime, otherwise known as ex delicto the imposition of which is mandated by Articles 100, 104(3), 107
and 345(1) of the Revised Penal Code, (People vs. Pea, L-36434, December 20, 1977, 80 SCRA 589, 599)
and is based upon a finding of the guilt of the accused. (Pp. V. Garcia, supra.)

REPUBLIC ACT NO. 8484

(The Access Device Regulation)

An act regulating the issuance and use of access devices, prohibiting fraudulent acts committed relative
thereto, providing penalties and for other purposes.
The recent advances in modern technology have led to the 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 8484, otherwise known as The Access Devices Regulation Act of
1998.
Termed as "access devices" by RA No. 8484, any card, plate, code, account number, electronic serial
number, personal identification number, or other telecommunication service, equipment, or
instrumental identifier, or other means of account access t hat can be used to obtain money, good,
services or any other thing of value or to initiate transfer of funds (other than transfer originated solely
by paper instrument) is now subject to regulation. The issuance and use of access devices are ought to
regulate in order to protect the rights and define the liabilities of parties in commercial transactions

involving them.
Essentially, the law imposes duties both to the access device issuer and holder, and penalize certain acts
deemed unlawful for being detrimental to either the issuer or holder, or both.
The law mandates an access device issuer, or "card issuer," to disclose either in writing or orally in any
application or solicitation to open a credit card account the following: 1) annual percentage rate; 2)
annual and other fees; 3) and balance calculation method; 4) cash advance fee; and 5)) over the limit
fee.
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.
Nonetheless, there are certain exceptions for the above requirement of disclosure not to apply. This is
when application or solicitation is made through telephone, provided that the issuer does not impose
any annual fee, and fee in connection with telephone solicitation unless the customer signifies
acceptance by using the card, and that a clear disclosure of the information enumerated in the
preceding paragraph is made in writing within thirty (30) after the consumer requests for the card, but
in no event later 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 charges disclosed
unless the consumer accepts the card or account by using the card.
Failure on the part of the issuer to fulfill the above requirements will result in the suspension or
cancellation of its authority to issue credit cards, after due notice and hearing, by the Banko Sentral ng
Pilipinas, the Securities and Exchange Commission and such other government agencies.
In sum therefore, the above omission is made punishable if the following elements occur. One, there is
an application or solicitation. Second, such application or solicitation should include the information
required by law. and third, failure on the part of the issuer to disclose such information.
In one case (Ermitano v. GR No. 127246, April 21, 1999), the Supreme Court had the occasion to rule on
the validity of contracts involving credit cards. The credit cards holder contended that the credit card
company should be blamed for the charges the same being unwarranted by the contract. As stipulated,
once a lost card has been reported, purchases made thereafter should not accrue on the part of the
holder.
The Court said notwithstanding the fact that the contract of 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
the contract of adhesion.

Clearly, in this case decided in 1999, the Court was concerned about an access device issuer's
vulnerability to abuse the provisions of the contract. It is quite surprising, however, that the Court did
not make reference to RA No. 8484 to think that it was already in effect when the resolution was
promulgated.
Nonetheless, in American Express International Co., Inc. vs. IAC (GR NO. 70766, November 9, 1988)
Supreme Court turned down the argument of private respondent grounded on the adhesion principle
saying indeed, in a contract of adhesion the maker of the contract has all the advantages, however, the
one to whom it is offered has the absolute prerogative to accept or deny the same.
On the other hand, an access device holder may be penalized when he or she fraudulently applied for
such device. An access device fraudulently applied for means any access device that was applied for or
issued on account of the use of falsified document, false information, fictitious identities and addresses,
or any form of false pretense or misrepresentation. Thus, the use, trafficking in, possession, and
inducing, enticing or in any manner allowing one to use access device fraudulently applied for are
considered unlawful.
The element of fraud is indispensable for this provision of RA 8484 to apply. It is a condition sine qua
non before one may be charged with the defined offense.
Thus, the law provides for presumptions of Intent to defraud on the basis of mere possession, control or
custody of: a) an access device without lawful authority; b) a counterfeit access device; any device
making or altering equipment; c) an access device or medium on which an access device is written not in
the ordinary course of the possessor's business; or d) any genuine access device, not in the name of the
possessor.
A card holder who abandons or surreptitiously leaves the place of employment, business or residence
stated in his 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 ninety (90) days and is more than ten thousand pesos
(P10,000.00), shall be prima facie presumed to have used his credit card with intent to defraud.

At first glance, the above presumptions, when applied in real cases, may suffer from constitutional
infirmities. The constitution provides that a person shall not be held to answer to a criminal offense
without due process of law. it may be argued that such presumptions are rebuttable ones. However, the
danger lies in the shifting of the burden of proof from the prosecution to the defense.
The law provides for sixteen (16) prohibited acts which refer to the production, use, possession of or
trafficking in unauthorized or counterfeit access devices. It also includes acts deemed fraudulent that
increase the amount involved in commercial transactions using access devices. Obtaining money or

anything of value through the use of an access device with intent to defraud or gain, and fleeing
thereafter.
In the final analysis, the law basically seeks to address the issue of fraud in the issuance and use of
access devices, especially credit cards. Fraud may be committed by the issuer by making false or vague
information in the application or solicitation to open credit card accounts. The applicant or holder, on
the other hand, fraudulently misrepresents himself by giving wrong identity, false profession or
employment, or bloated income.
Take the case for instance of Citibank v. Gatchalian (GR No. 111222, January 18, 1995) which shows how
credit card applicants through false representation were able to amass in simple terms P790,000.00
from petitioner.
In this case, two employees of the Asian-Pacific Broadcasting Co,. Inc. (ABCI) applied for nineteen (19(
credit cards with Citibank using different names other than their real names. The Citibank approved the
applications and the credit cards were delivered to them for use. However, this case involves an illegal
dismissal case where a Citibank employee was found guilty of gross negligence for effecting the delivery
of the credit cards. Her dismissal was affirmed in this case.
Insofar as access device issuers are concerned, Eermitano v. C.A., may be a case in point. The credit card
holder lost his credit card which he immediately reported to the card issuer. The contract stipulated that
in case of lost, the same should be reported immediately, otherwise purchases made shall be charged to
the holder. In this case, despite the prompt reporting of the holder, the issuer still charged the
purchases against the former. The Court in this case held the issuer in breach of the contract.
The penalties provided for by RA 8484 are imprisonment and fine. Imprisonment is from six (6) years to
ten (10) years and fine ranges from ten thousand pesos (10,000.00) or twice the value of the offense,
whichever is higher.
The penalties are increased in case the offender has a similar previous conviction, meaning if he was
previously found violating RA 8484. In which case, the accused shall suffer imprisonment of not less than
twelve (12) years and not more than twenty (20) years.
The two other stages of felony, as defined by the Revised Penal Code is also made punishable. Thus,
attempted and frustrated are meted out with the penalties of imprisonment and fine albeit only in
fractions of the above penalties.
R.A. 8484 may seem to favor the issuer. A credit card company may only be meted out the penalty of
cancellation or suspension, which may be considered as mere administrative sanctions. In fact, it is not
the courts which impose such sanctions but administrative agencies such as the Bangko Sentral and the
Securities and Exchange Commission.

On the other hand, a holder or mere possessor of a counterfeit fraudulently applied for access device
may be convicted and be made to suffer imprisonment and fine.

DANGEROUS DRUG ACT OF 2002

(Republic Acts No. 9165)

DEFINITIONS OF TERMS
Chemical Diversion the sale, distribution, supply or transport of legitimately imported, in-transit,
manufactured or procured controlled precursors and essential chemicals, in diluted, mixtures or in
concentrated form, to any person or entity engaged in the manufacture of any dangerous drug, and
shall include packaging, repackaging, labeling, relabeling or concealment of such transaction through
fraud, destruction of documents, fraudulent use of permits, misdeclaration, use of front companies or
mail fraud.
Controlled Delivery The investigative technique of allowing an unlawful or suspect consignment of any
dangerous drug and/or controlled precursor and essential chemical, equipment or paraphernalia, or
property believed to be derived directly or indirectly from any offense, to pass into, through or out of
the country under the supervision of any unauthorized officer, with a view to gathering evidence to
identify any person involved in any dangerous drug related offense, or to facilitate prosecution of that
offense.
Controlled Precursor and Essential Chemicals Includes those listed in Tables I and II of the 1988 UN
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances as enumerated in the
attached annex, which is an integral part of this Act.
Drug Dependence As based on the World Health Organization definition, it is a cluster of physiological,
behavioral and cognitive phenomena of variable intensity, in which the use of psychoactive drug takes
on a high priority thereby involving, among others, a strong desire or a sense of compulsion to take the
substance and the difficulties in controlling substance-taking behavior in terms of its onset, termination,
or levels of use.
Drug Syndicate Any organized group of two (2) or more persons forming or joining together with the
intention of committing any offense prescribed under this Act.
Illegal Trafficking The illegal cultivation, culture, delivery, administration, dispensation, manufacture,
sale, trading, transportation, distribution, importation, exportation, and possession of any dangerous
drug and/or controlled precursor and essential chemical.

Protector/Coddler Any person who knowingly and willfully consents to the unlawful acts provided for
in this Act and uses his/her influence, power or position in shielding, harboring, screening or facilitating
the escape of any person he/she knows, or has reasonable ground to believe on or suspects, has
violated the provision of this Act in order to prevent the arrest, prosecution and conviction of the
violator.
Pusher Any person who sells, trades, administers, dispenses, delivers, or gives away to another, on any
terms whatsoever, or distributes, dispatches in transit or transports dangerous drugs or who acts as a
broker in any of such transaction, in violation of this Act.
Planting of evidence the willful act by any person of maliciously and surreptitiously inserting, placing,
adding or attaching directly or indirectly, through any overt or covert act whatever quantity of any
dangerous drug and/or controlled precursor and essential chemical in the person, house, effects or in
the immediate vicinity of an innocent individual for the purpose of implicating, incriminating, or
imputing the commission of any violation of this Act.

What are the significant Provisions in R.A. 6425

that have been changed?
1. Under this Act there is no more distinction between prohibited drug and regulated drugs and/or
controlled precursors and essential chemicals enumerated in Tables I and II of the 1988 UN Convention
against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.
2. The penalties provided by R.A. 7659 was changed , adopting partially the penalties in R.A. 6425.
3. In planting evidence any person now maybe held liable. Before, only law enforcement agents.
4. the provisions of the Revised Penal Code have no suppletory effect except for minors who may be
sentenced to reclusion perpatua.

What are the new kinds of drugs

that are included in R.A. 9165?
Methylenedioxymethamphetamine (MDMA) or commonly 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 (TMA), lysergic acid diethylamine
(LSD), gamma hydroxybutyrate (GHB) and those similarly designed or newly introduced drugs and their
derivatives, without having any therapeutic value or if the quantity possessed is far beyond therapeutic
requirement, as determined and promulgated by the Board in accordance to Section 93, Art XI of this
Act of R.A. 9165.

ACTS PUNISHABLE UNDER THE LAW

1.) Importation of any dangerous drug, regardless of the quantity and purity involved, including any and
all species of opium poppy or any part thereof or substances derived thereform even for floral,
decorative and culinary purposes.
2.) Importation of any controlled precursor and essential chemical.
3.) Importation of any dangerous drug and/or controlled precursor and essential chemical through the
use of a diplomatic passport, diplomatic facilities or any other means involving his/her official status
intended to facilitate the unlawful entry.
4.) Organizing, managing, or acting as a financier of any of the illegal activities penalized under Section
4 of the Law.
5.) Acting as protector/coddler of anyone who violates Section 4 of the Law.
6.) Sale, trading, administration, dispensation, distribution and transportation of dangerous drugs,
regardless of quantity and purity involved, or acting as a broker in any of such transactions.
7.) Sale, trading, administration, dispensation, distribution and transportation of any controlled
precursor and essential chemical, or acting as a broker in such transaction.
8.) Use by drug pushers of minors or mentally incapacitated individuals as runners, couriers and
messengers, or in any other capacity directly connected to the trade of dangerous drugs and/or
controlled precursor and chemicals.
9.) Acting as a protector/coddler of any violator of the provision of Sec. 5.
10.) Maintenance of a Den, Dive or Resort where any dangerous drug is used or sold in any form.
11.) Maintenance of a Den, Dive or Resort where any controlled precursors and essential chemical is
used or sold in any form.
12.) Acting as protector/coddler of a maintainer of a Den, Dive, or Resort
13.) Employees and Visitors of a Den, Drive, or Resort
14.) Manufacture of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals
15.) Acting as a protector or coddler of any violator of Sec. 8
16.) Illegal Chemical Diversion of Controlled Precursor and Essential Chemicals.
17.) Manufacture or Delivery of Equipment, Instrument, Apparatus, and other Paraphernalia for
Dangerous Drugs and/or Controlled Precursors and Essential Chemicals.
18.) Possession of Drug.
19.) Possession of equipment, Instrument, Apparatus, and Other Paraphernalia for Dangerous Drugs
20.) Possession of Dangerous Drugs During Parties, Social Gathering or Meetings.
21.) Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs
during Parties, Social Gathering or Meetings.
22.) Use of Dangerous Drugs.
23.) Cultivation or Culture of Plants Classified as Dangerous Drugs or are Sources thereof.
24.) Maintenance and keeping of Original Records of Transaction on Dangerous Drugs and/or Controlled
Precursors and Essential Chemicals
25. Unnecessary Prescription of Dangerous Drugs

26.) Unlawful Prescription of Dangerous Drugs

27.) Attempt or Conspiracy to commit the following unlawful acts: (a) Importation of any dangerous
drugs and/or controlled precursor and essential chemical; (b) Sale, trading, administration, dispensation,
delivery, distribution, and transportation of any dangerous drug and/or controlled precursor and
essential chemical; (c) Maintenance of a den, dive, or resort where dangerous drugs is used in any form;
(d) Manufacture of any dangerous drug and/or controlled precursor and essential chemical; and (e)
Cultivation or culture of plants which are sources of dangerous drugs.

CRIMINAL LIABILITY OF ALIENS, OFFICERS

OF PARTNERSHIP, CORPORATION, ASSOCIATIONS, OR OTHER JURIDIUCAL ENTITIES
1. In addition to the penalties prescribed in the unlawful act committed, any alien who violates such
provisions of the Law, after service of sentences, shall be deported immediately without further
proceedings, unless the penalty is death.
2. In case the violation of the Law is committed by a partnership, corporation, association or any juridical
entity, the partner, president, director, manager, trustee, estate administrator, or officer who consents
to or knowingly tolerates such violation shall be held criminally liable as co-principal.
3. The penalty provided for the offense under the Law shall be imposed upon the partner, president,
director, manager, trustee, estate administrator, or officer who knowingly authorizes, tolerates, or
consents to the use of a vehicle, vessel, aircraft, equipment or other facility as an instrument in the
importation, sale, trading, administration, dispensation, delivery, distribution, transportation, or
manufacture of dangerous drugs, or chemical diversion, if such vehicle, aircraft, equipment or other
instrument is owned by or under the control or supervision of the partnership, corporation, association
or juridical entity to which they are affiliated.

CRIMINAL LIABLITY OF PUBLIC OFFICERS OR EMPLOYEES

1. Any public officer or employee who (1) misappropriates, (2) misapplies or (3) fails to account for
confiscated, seized or surrendered drugs, plant sources of dangerous drugs, controlled precursors and
essential chemicals, instruments/paraphernalia and/or laboratory equipment including the proceeds or
properties obtained from the unlawful acts punished under the Law shall be penalized with life
imprisonment to death and a fine ranging fromP500,000.00 to P10,000,000.00 and with perpetual
disqualification from any public office (Sec.27).
2. Any government official or employee found guilty of the unlawful acts punished under the Law shall
be imposed the maximum penalties provided for the offense and shall be absolutely perpetually
disqualified from holding any public office. (Sec. 28).

CRIMINAL LIABILITY OF ELECTIVE LOCAL OR NATIONAL OFFICIALS WHO BENEFITS FROM DRUG
TRAFFICKING whether or not he know that it came from drugs, but the one who gave must be
convicted first by final judgment.
1. Any elective local or national official found to have (1) benefited from the proceeds of the trafficking
of dangerous drugs as prescribed in the Law, or has (2) received any financial or material contributions
or donations from natural or juridical persons found guilty of trafficking dangerous drug as prescribed in
the law, shall be removed from office and perpetually disqualified from holding any elective or
appointive positions in the government, its divisions, subdivisions, and intermediaries, including
government-owned or controlled corporations (\sec.27)

CRIMINALLIABILITY OF PRIVATE INDIVIDUAL

2. Any person found guilty of planting any dangerous drug and/or controlled precursor and essential
chemical, regardless of quantity and purity, shall be punished with death. (Sec. 29).
3. Any person violating any regulation issued by the Dangerous Drug Board shall be punished with
imprisonment ranging from 6 months and 1 day to 4 years and a fine ranging from P10,000.00 to
P50,000.00 in addition to the administrative sanction which may be imposed by the Board (Sec. 32)

CRIMINAL LIABILITY FOR

PLANTING OF EVIDENCE
Any person who is found guilty of planting nay dangerous drug and/ or controlled precursor and
essential chemicals, regardless of quantity and purity, shall suffer the penalty of death. (Sec. 29).
Previosly, only law enforcement agent maybe held liable (R.A. 7659).

ACCESORY PENALTIES
Any person convicted under this Law (R.A.9165 ) shall be disqualified to exercise his/her civil rights such
as, but not limited to, the right of parental authority or guardianship, either as to the person or property
of any ward, the rights to dispose of such property by any act or any conveyance inter vivos, and
political rights such as but not limited to, the right to vote and be voted for. Such rights shall also be
suspended during the pendency of an appeal from such conviction (Sec.35)

AGGRAVATING CIRCUMSTANCES
DRUG RELATED CASES

1.) If the importation or bringing into the Philippines of any dangerous drugs and/or controlled
precursor and essential chemicals was done through the use of diplomatic passport, diplomatic facilities
or any other means involving his/her official status intended to facilitate the unlawful entry of the same
2.) The sale trading, administration, dispensation, delivery, distribution or transportation of any
dangerous drug and/or controlled precursor and essential chemical transpired within one hundred (100)
meters from the school
3.) The drug pusher use minors or mentally incapacitated individuals as runners, couriers and
messenger, or in any other capacity directly connected to the dangerous drug and/or controlled
precursor and essential chemical trade.
4.) The victim of the offense is a minor or mentally incapacitated individual, or should a dangerous drug
and/or controlled precursor and essential chemicals involved `in any offense be the proximate cause of
death of a victim.
5.) In case the clandestine laboratory is undertaken or established under the following circumstances:
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 undertaken within one hundred (100) meters
of a residential, business, church or school premises.
c.) Any clandestine laboratory was secured or protected with booby traps.
d.) Any clandestine laboratory was concealed with legitimate business operations.
e.) Any employment of a practitioner, chemical engineer, public official or foreigner.
6.) In case the person uses a minor or a mentally incapacitated individual to deliver equipment,
instrument, apparatus and other paraphernalia use for dangerous drugs.
7.) Any person found possessing any dangerous drug during a party, or a social gathering or meeting, or
in the proximate company of at least two (2) person.
8.) Possession or having under his/her control any equipment, instrument, apparatus and other
paraphernalia fit of intended for smoking, consuming, administering, injecting, ingesting or introducing
any dangerous drug into the body, during parties, social gatherings or meetings, or in the proximate
company of at least two (2) person

WHAT ARE THE PRIVILEGE NOT

AVAILABLE TO VIOLATOR OF THIS ACT?
1.) Any person charged under any provision of this Act 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 under this Act, regardless of the penalty
imposed by the Court, cannot avail of the privilege granted by the Probation Law of P.D. No. 968, as
amended, except minors who are first-time offenders.
Note:- Pendency of appeal suspend the right of the accused
- Rights to Self-incrimination do not refer to giving blood.

IMMUNITY FROM PROSECUTION

AND PUNISHMENT
Immunity from Prosecution and punishment Notwithstanding the provision of Section 17, Rule 119 of
the Revised Rules of Criminal Procedure and the provisions of Republic Act No. 6981 or the Witness
Protection, Security and Benefits Act of 1991, any person who has violated Sections 7,11, 12, 14, 15 and
19, Article II of this Act, who voluntarily gives information about any violation of Section 4, 5, 6, 8, 13
and 16, Article II of this Act as well as any 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; and who willingly testifies against such persons as described 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; Provided, that the following condition concur:
1.) The information and testimony are necessary for the conviction of the person described above;
2.) Such information are not yet in the possession of the State;
3.) Such information and testimony can be corroborated on its material points;
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 than the information and
testimony of said informant or witness; and
5.) The informant or witness shall strictly and faithfully comply without delay, any condition or
undertaking, reduced into writing, lawfully imposed by the State as further consideration for the grant
of immunity from prosecution and punishment.
Provided, further, That this immunity may be enjoyed by such informant or witness who does not
appear to be most guilty for the offense with reference to which his/her information or testimony were
given. Provide, finally, that there is no direct evidence available for the State except for the information
and testimony of the said informant or witness.

TERMINATION OF THE
GRANT OF IMMUNITY
The immunity above-granted shall not attach should it turn out subsequently that the information
and/or testimony is false, malicious, or made only for the purpose of harassing, molesting or in any way

prejudicing the persons described in Section 33 against whom such information or testimony is directed.
In such case, the informant or witness shall be subject to prosecution and the enjoyment of all rights
and benefits previously accorded him under the Law or any other law, decree or order shall be deemed
terminated.
In case the informant or witness under the Law fails or refuse to testify without just cause, and when
lawfully obliges to do so, or should he/she violate any condition 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 case may be and the enjoyment of all rights and benefits
previously accorded him under the Law or in any other law, decree or order shall be deemed
terminated. (Sec 34.)
In case the informant or witness referred to under the Law falls under the applicability of Section 34,
such individual cannot avail of the provision under Article VIII of the Law.

PERSON/S WHO ARE SUBJECT

TO THE MANDATORY DRUG TESTING
a.) Applicants for drivers license no drivers license shall be issued or renewed to nay person unless
he/she presents a certification that he/she has undergone a mandatory drug test and indicating thereon
that he/she is free from the use of dangerous drugs.
b.) Applicants for firearms license and permit to carry firearms outside of residence. All applicants for
firearms license and permit to carry firearms outside of residence shall undergo a mandatory drug test
to ensure that they are free from the use of dangerous drugs; Provided, That all persons who by the
nature of their profession carry firearms shall undergo drug testing;
c.) Officers and employees of public and private offices. Officers and employees of public and private
offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in
the companys work unless and regulation, which shall be borne by the employer, for purposes of
reducing the risk in the workplace. Any officer or employee found positive for the sue of dangerous drug
shall be dealt with administratively which shall be a ground for suspension or termination, subject to the
provision Article 282 of the Labor Code and pertinent provisions of the Civil Service Law.
d.) Officers and members of the military, police and other law enforcement agencies. Officers and
members of the military, police and other law enforcement agencies shall undergo an annual mandatory
drug test.
e.) All persons charged before the prosecutors office with a criminal offense having an imposable
penalty of imprisonment of not less than six (6) years and one (1) day shall have undergo a mandatory
drug test.
f.) All candidates for public office whether appointed or elected both in the national or local government
shall undergo a mandatory drug test.

CONFIDENTIALITY OF RECORDS UNDER

THE COMPULSARY SUBMISSION PROGRAM
The records of a drug dependent who was rehabilitated and discharged from the Center under the
compulsory submission program, or who was charged for violation of Section 15 of this Act, shall be
covered by Section 60 of this Act (R.A. 9165). However, the record of a drug dependant who was not
rehabilitated, or who escaped but did not surrender himself/herself within the prescribed period, shall
be forwarded to the court and their use shall be determined by the court, taking into consideration
public interest and the welfare of the drug dependant (Sec. 64)
DISCHARGED AFTER COMPLIANCE WITH CONDITIONS OF SUSPENDED SENTENCE OF A FIRST-TIME
MINOR OFFENDER
If the accused first time minor offender under suspended sentence complies with the applicable rules
and regulation of the Board, including confinement in a Center, the court, upon a favorable
recommendation of the Board for a final discharge of the accused, shall discharge the accused and
dismiss all proceedings.
Upon the dismissal of the proceedings against the accused, the court shall enter an order to expunge all
official records, other than the confidential record to be retained by the DOJ relating to the case. Such
an order, which shall be kept confidential, shall restore the accused to his/her status prior to the case.
He/she shall not be held thereafter to be guilty of perjury or of concealment or misrepresentation by
reason of his/her failure to acknowledge the case or recite any fact related therto in response to any
inquiry madeof him for any purpose (Sec. 67)

THE DANGEROUS DRUGS BOARD AND

PHILIPPINE DRUG ENFORCEMENT AGENCY
The Dangerous Drug Board
A. Function
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. 77)
B. Composition
Under R.A. 6424 as amended, the Dangerous Drug board was composed of seven ex officio members as
follows: (a) The Minister of Health or his representative; (b) the Minister of Justice or his representative;
(c) The Minister of National Defense or his representative; (d) The Minister of Education and Culture or
his representative; (e) The Minister of Finance or his representative; (f) The Minister of Social Service
and Development or his representative; and (g) The Minister of Local Government or his representative

(Sec. 35 Art. 8, R.A. 6424)

The Minister of Health shall be the Chairman of the Board and the Director of the National Bureau of
Investigation shall be the permanent consultant of the Board.
Under Section 78 of R.A. 9165, the membership of the Dangerous Drugs Board was expanded to
seventeen (17) members, three (3) of which are permanent members, twelve (12) shall be in ex officio
capacity, and the remaining two (2) shall be regular members.
The three (3) permanent members, who shall possess At least seven-year training andexperience in the
field of dangerous drugs andin any of the following fields: in law, medicine, criminology, psychology or
social work, shall be appointed by the President of the Philippines. The President 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 members, who shall have the rank of undersecretary,
one (1) shall serve for four (4) and the other for two (2) years. Thereafter, the person appointed to
succeed such members shall hold office for a term of six (6) years and until their successors shall have
been duly appointed and qualified.
The other twelve (12) members who shall be ex officio members of the Board are the following: (1)
Secretary of the Department of Justice or his/her representative; (2) Secretary of the Department of
Health or his/her representative; (3) Secretary of the Department of National Defense or his/her
representative; (4) Secretary of the Department of Finance or his/her representative; (5) Secretary of
the Department of Labor and Employment or his/her representative; (6) Secretary of the Department of
Interior and Local Government or his/her representative; (7) Secretary of the Department of Social
Welfare and Development or his/her representative; (8) Secretary of the Department of Foreign Affairs
or his/her representative; (9) Secretary of the Department of Education or his/her representative; (10)
Chairman of the Commission of Higher Education or his/her representative; (11) Chairman of the
National Youth Commission; and (12) Director General of the Philippine Drug Enforcement Agency.
Cabinet secretaries who are members of the Board may designate their duly authorized and permanent
representatives whose rank shall in no case be lower than undersecretary.
The two (2) regular members shall be as follows: (a) The President of the Integrated Bar of the
Philippines; and (b) The chairman or president of a non- chairman or president of a non- chairman or
president of a non-government organization involved in dangerous drug campaign to be appointed by
the President of the Philippines.

The Philippine Drug Enforcement Agency (PDEA)

A. Functions
Carry out the provision of the Dangerous Drug act of 2002. The Agency shall served as the implementing
arm of the Dangerous Drug Board, and shall be responsible for the efficient and effective law
enforcement of all provisions of any dangerous drug and/or controlled precursor and essential
chemicals as provided for in the Law. (Sec. 82). The existing Secretariat of the National Drug Law
Enforcement and Prevention Coordinating Center as created by Executive Order No. 61 is hereby
modified and absorbed by the PDEA (Sec. 83, R.A. 9165)

B.) Powers and Duties

a.) Implement or cause the efficient and effective implementation of the national drug control strategy
formulated by the Board thereby carrying out a national drug campaign program which shall include
drug law enforcement, control and prevention campaign with the assistance of concerned government
agencies;
b.) Undertake the enforcement of the provision of article II of this Act relative to the unlawful acts and
penalties involving any dangerous drug and/or controlled precursor and essential chemical and
investigate all violators and other matters involved in the commission of any crime relative to the use,
abuse or trafficking of any dangerous drug and/or controlled precursor and essential chemicals as
provided for in this Act and the provisions of Presidential Decree No. 1619;
c.) Administer oath, issue subpoena and subpoena duces tecum relative to the conduct of investigation
involving violation of this Act;
d.) Arrest and apprehend as well as search all violators and seize or confiscate, the effects or proceeds of
the crime as provided by law and take custody thereof, for this purpose the prosecutors and
enforcement agents are authorized to possess firearms, in accordance with the existing laws;
e.) Take charge and have custody of all dangerous drugs and/or controlled precursors and essential
chemicals seized, confiscated or surrendered to any national, provincial or local law enforcement
agency; if no longer needed for purposes of evidence in court.
f.) Establish forensic laboratories in each PNP office in every province and city in order to facilitate action
on seized or confiscated drugs; thereby hastening its destruction without delay;
g.) Recommend to the DOJ the forfeiture of properties and other assets of persons and/or corporations
found to be violating the provisions of this Act and in accordance with the pertinent provisions of the
Anti-Money Laundering Act of 2002.
h.) Prepare for prosecution or cause the filing of appropriate criminal and civil cases for violation of laws
on dangerous drugs, controlled precursors and essential chemicals, and other similar controlled
substance, and assist, support and coordinate with other government agencies for the proper and
effective prosecution of the same;
i.) Monitor and if warranted by circumstances, in coordination with the Philippine Postal Office and the
Bureau of Customs, inspect all air cargo packages, parcels and mails in the central post office, which
appear from the packages and address itself to be a possible importation of dangerous drugs and/or
controlled precursors and essential chemicals, through on-line or cyber shops via the internet or
cyberspace;
j.) Conduct eradication programs to destroy wild or illegal growth of plants from which dangerous drugs
may be extracted;
k.) Initiate and undertake the formation of a nationwide organization which shall coordinate and
supervise all activities against drug abuse in every province, city, municipality and barangay with active
and direct participation of all such local government units and non-governmental organizations,
including the citizenry, subject to the provisions of previously formulated programs of action against
dangerous drugs;
l.) Establish and maintain a national drug intelligence system in cooperation with law enforcement
agencies, other government agencies/offices and local government units that will assist in its

apprehension of big time drug lords;

m.) Established and maintain close coordination, cooperation and linkages with international drug
control and administration agencies and organization and implement the applicable provisions of
international conventions and agreement related to dangerous drugs to which the Philippines is a
signatory;
n.) Create and maintain an efficient special enforcement unit to conduct an investigation, file charges
and transmit evidence to the proper court, wherein members of the said unit shall possess suitable and
adequate firearms for their protection in connection with the performance of their duties; Provided,
That no previous special permit for such possession shall be required;
o.) Require all government and private hospitals, clinics, doctors, dentists and other practitioners to
submit a report to it, in coordination with the Board, about all dangerous drugs and/or controlled
precursors and essential chemicals which they have attended to for data and information purposes;
p.) Coordinate with the Board for the facilitation of the issuance of necessary guidelines, rules and
regulations for the proper implementation of this Act;
q.) Initiate and undertake a national campaign for drug prevention and drug control programs, where it
may enlist the assistance of any department, bureau, office, agency, or instrumentality of the
government, including government-owned and/or controlled corporations, in the anti-illegal drugs
drive, which may include the use of their respective personnel, facilities, and resources for a more
resolute detection and investigation of drug-related crimes and prosecution of the drug traffickers; and
r.) Submit an annual and periodic report to the Board as may be required form time to time, and
perform such other functions as may be authorized or required under existing laws and as directed by
the President himself/herself or as recommended by the congressional committees concerned.
Note:
There are however certain power and duties of the PDEA enumerated under Section 84 of R.A. 9165
which seems to overlap with the functions of prosecutors such as (1) the preparation for prosecution or
the causing of the filing of appropriate criminal cases for violation of the Law; and (2) filing of charges
and transmittal of evidence to the proper court and which have to be clarified in the Implementing Rules
and Regulation that may be issued by the DDB and the PDEA later.

JURISDICTION OVER DRUG RELATED CASES

The Supreme Court shall designate special court from among the existing Regional Trial Court in each
judicial region to exclusively try and hear cases involving violations of this Act. The number of courts
designated in each judicial region shall be based in their respective jurisdiction.
The DOJ shall designate special prosecutor to exclusively handle cases involving violations of this Act.

PRELIMINARY INVESTIGATION
OF DANGEROUS DRUG CASES

The preliminary investigation of cases filed under this Act shall be terminated within the period of thirty
(30) days from the date of their filing
When the preliminary investigation is conducted by a public prosecutor and probable cause is
established, the corresponding information shall be filed in court within twenty-four (24) hours from the
termination of the investigation. If the preliminary investigation is conducted by a judge and a probable
cause is found to exist, the corresponding information shall be filed by the proper prosecutor within
forty-eight (48) hours from the date of receipt of the records of the case. (Sec. 90)
The Department of Justice shall designate special prosecutors to exclusively handle cases involving
violations of the Dangerous Drug Act of 2002 (Sec. 90)
Notwithstanding the provision of any law to the contrary, a positive finding for the use of dangerous
drugs shall be a qualifying aggravating circumstance in the commission of a crime by an offender, and
the application of the penalty provided for in the Revised Penal Code shall be applicable (Sec. 25)
Confiscation and Forfeiture of the Proceeds or Instruments of the Unlawful Act, including the Properties
or Proceeds Derived from the Illegal Trafficking of Dangerous Drugs and/or Precursors and Essential
Chemicals
Every penalty imposed for the unlawful importation, sale, trading, administration, dispensation,
delivery, distribution, transportation or manufacture of any dangerous drug and/or controlled precursor
and essential chemical, the cultivation or culture of plants which are sources of dangerous drugs, and
the possession of any equipment, instrument, apparatus and other paraphernalia for dangerous drugs
including other laboratory equipment, shall carry with it the confiscation and forfeiture, in favor of the
government, of all the proceeds and properties derived from unlawful act, including, but not limited to,
money and other assets obtained thereby, and the instruments or tools with which the particular
unlawful act was committed, unless they are the property of a third person not liable for the unlawful
act, but those which are not of lawful commerce shall be ordered destroyed without delay pursuant to
the provisions of Section 21 of this Act.
After conviction in the Regional Trial Court in the appropriate criminal case filed, the Court shall
immediately schedule a hearing for the confiscation and forfeiture of all the proceeds of the offense and
all the assets and properties of the accused either owned or held by him or in the name of some other
persons if the same shall be found to be manifestly out of proportion to his/her lawful income;
Provided, however, That if the forfeited property is a vehicle, the same shall be auctioned off not later
than five (5) days upon order of confiscation or forfeiture.
During the pendency of the case in the Regional Trial Court, no property, or income derived thereform,
which may be confiscated and forfeited, shall be disposed, alienated or transferred and the same shall
be in custodio legis and no bond shall be admitted for the release of the same.

The proceeds of any sale or disposition of any property confiscated under this section, forfeiture,
custody and maintenance of the property pending disposition, as well as the expense for publication
and court costs. The proceeds in excess of the above expenses shall accrue to the Board to be used in its
campaign against illegal drugs.

CUSTODY AND DISPOSITION OF CONFISCATED, SEIZED

AND/OR SURRENDERED DANGEROUS DRUGS, ETC.
The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs,
controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory
equipment that was confiscated, seized and/or surrendered, for proper disposition in the following
manner:
1. The apprehending team having initial custody and control of the drugs shall, immediately after seizure
and confiscation, physically inventory and photograph the same in the presence of the accused or the
person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a
representative from the media and the Department of Justice (DOJ) and any elected public official who
shall be required to sign the copies of the inventory and be given a copy thereof;
2. Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of
dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia
and/or laboratory equipment, the same shall be submitted to the PDEA Forensic Laboratory for a
qualitative examination;
3. A certification of the forensic laboratory examination results, which shall be under oath by the
forensic laboratory examiner, shall be issued within twenty-four (24) hours after the receipt of the
subject items/s: Provided, that when the volume of dangerous drugs, and controlled precursors and
essential chemicals does not allow the completion of testing within the time frame, a partial laboratory
examination report shall be provisionally by the forensic laboratory: Provided, however, that a final
certification on the same within the next twenty-four (24) hours;
4. After the filing of the criminal case, the Court shall within seventy-two (72) hours, conduct an ocular
inspection of the confiscated, seized and/or surrendered dangerous drugs, plant sources of dangerous
drugs, and controlled precursor and essential chemicals, including the instruments/paraphernalia
and/or laboratory equipment, and through the PDEA shall within twenty-four (24) hours thereafter
proceed with the destruction or burning of the same, in the presence of the accused or the person/s
from which such items were confiscated and/or seized, or his/her representative or counsel, a
representative from the media and the DOJ, civil society group and any elected public official. The Board
shall draw up the guidelines on the manner of proper disposition and destruction of such item/s which
shall be borne by the offender; Provided, That those item/s of lawful commerce, as determined by the

Board, shall be donated, used or recycled for legitimate purposes; Provided, further, That a
representative sample, duly weighed and recorded, is retained;
5. The Board shall then issue a sworn statement as to the fact of destruction or burning of the subject
item/s together with the representative sample/s shall be kept to a minimum quantity as determined by
the Board;
6. The alleged offender or his/her representative or counsel shall be allowed to personally observe all of
the above proceedings and his/her presence shall not constitute an admission of guilt. In case the said
offender or accused refuses or fails to appoint a representative after due notice in writing to the
accused or his/her counsel within seventy-two (72) hours before the actual or destruction of the
evidence in question, the Secretary of Justice shall appoint a member of the public attorneys office to
represent the former;
7. After the promulgation of judgment in the criminal case wherein the representative sample/s was
presented as evidence in court, the trial prosecutor shall inform the Board of the final termination of the
case and in turn, shall request the court for leave to turn over the said representative sample/s to the
PDEA for proper disposition and destruction within twenty-foru (24) hours from receipt of the same; and
8. Transitory Provision: a.) Within twenty-four hours from the 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, in the presence of representative of the Court, DOJ,
Department of Health (DOH) and the accused and/or his/her 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 implemented by the DOH (Sec. 21, Art. 2, R.A. 9165)

SUSPENSION OF SENTENCE OF
FIRST-TIME MINOR OFFENDER
An accused who is over fifteen (15) years of age at the time of the commission of the offense mentioned
in Section 11 of R.A. 9165 but not more that eighteen (18) years of age at the time when the judgment
should have been promulgated after having been found guilty of said offense, may be given the benefits
of a suspended sentence, subject to the following conditions:
a.) He/She has not been previously convicted of violating any provision of this Act, or of the Dangerous
Drugs Act of 1972, as amended; or of the Revised Penal Code; or any special penal laws;
b.) He/She has not been previously committed to a Center or to the care of a DOH-accredited physician;
and
c.) The Board favorably recommends that his/her sentence be suspended.

PRIVILEGE OF SUSPENDED SENTENCE CAN BE AVAIL ONLY ONCE BY A FIRST-TIME MINOR OFFENDER
The privilege of suspended sentence shall be availed of only once by accused drug dependent who is a
first-time offender over fifteen (15) years of age at the time of the commission of the violation of
Section 15 of this Act but not more than eighteen (18) years of age at the time when judgment should
have been promulgated. (Sec. 68)

PROMULAGATION OF SENTENCE
FOR FIRST-TIME OFFENDER
If the accused first-time minor offender violates any of the conditions of his/her suspended sentence,
the applicable rules and regulations of the Board exercising supervision and rehabilitative surveillance
over him, including the rules and regulations of the Center should confinement be required, the court
shall pronounce judgment of conviction and he/she shall serve sentence as any other convicted person.
(Sec. 69)

PROBATION OR COMMUNITY SERVICE FOR A FIRST-TIME MINOR OFFENDER IN LIEU OF IMPRISONMENT

Upon promulgation of the sentence, the court may, in its discretion, place the accused under probation,
even if the sentence provided under this Act is higher than that provided under existing law on
probation, or impose community service in lieu of imprisonment. In case of probation, the supervision
and rehabilitative surveillance shall be undertaken by the Board through the DOH in coordination 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 recommending
termination of probation and a final discharge of the probationer, whereupon the court shall issue such
an order.
The community service shall be complied with under conditions, time and place as may be determined
by the 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 the
supervision and rehabilitative surveillance of the Board during the period required by the court.
Thereafter, the Board shall render a report on the manner of compliance of said community service. The
court in its discretion may require extension of the community service or order a final discharge.
If the sentence promulgated by the court require imprisonment, the period spent in the Center by the
accused shall be deducted from the sentence to be served. ( Sec. 70)

WHAT ARE THE LIABILITY AND RESPONSIBILITY OF A MEMBER OF LAW ENFORCEMENT AGENCIES AND
OTHER GOVERNMENT OFFICIALS IN TESTIFYING AS PROSECUTION WITNESSES IN DANGEROUS DRUG
CASES?

Any member of law enforcement agencies or any other government official and employee who, after
due notice, fails or refuse intentionally or negligently, to appear as a witness for the prosecution in any
proceedings, involving violation of this Act, without any valid reason shall be punished with
imprisonment of not less than twelve (12) years and one (1) day to twenty (20) years and a fine of not
less than Five hundred thousand pesos (P500,000.00), in addition to the administrative liability he/she
may be meted out by his/her immediate superior and/or appropriate body.
The immediate superior of the member of the law enforcement agency or any other government
employee mentioned in the preceding paragraph shall be penalized with 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 ten thousand
(P10,000.00) but not more than Fifty thousand (P50,000.00) and in addition, perpetual absolute
disqualification from public office if despite due notice to them and to the witness concerned the former
does not exert reasonable effort to present the latter to the court
The member of the law enforcement agency or any other government employee mentioned in the
proceeding paragraphs shall not be transferred or re-assigned to any other government office located in
another territorial jurisdiction during the pendency of the case in court. However, the concerned
member of the law enforcement agency or government employee may be transferred or re-assigned for
compelling reason: Provided, that his/her 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 his/her immediate superior shall be penalized with 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 two (2) months and
one (1) day but not more than six (6) years and a fine of not less than Ten thousand (P10,000.00) but not
more than Fifty thousand pesos (P50,000.00) and in addition, perpetual absolute disqualification from
public office, should he/she fails to notify the court of such order to transfer or re-assign.

DELAY ANF BUNGLING IN THE

PROSECUTION OF DRUG CASES
Any government officer employee tasked with the prosecution of drug-related cases under this Act, who
through patent laxity, inexcusable neglect, unreasonable delay or deliberately causes the unsuccessful
prosecution and/or dismissal of the said drug cases, shall suffer the penalty of imprisonment ranging
from twelve (12) years and one (1) day to twenty (20) years without prejudice to his/her prosecution
under the pertinent provision of the Revised Penal Code.

RECORDS TO BE KEPT BY THE

DEPARTMENT OF JUSTICE
The DOJ shall keep a confidential record of the proceedings on suspension of sentence and shall not be

used for any purpose other than to determine whether or not a person accused under this Act is a firsttime offender. (Sec. 71)

LIABILITY OF A PERSON WHO VIUOLATES

THE CONFIDENTIALITY OF RECORDS
The Penalty of imprisonment ranging from six (6) months and one (1) day to six (6) years and a fine
ranging from One thousand pesos (P1,000.00) to Six thousand pesos (P6,000.00), shall be imposed upon
any person who, having official custody of or access to the confidential records of any drug dependent
under voluntary submission programs, or 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 under this Act and its implementation. The maximum penalty shall be
imposed, in addition to the absolute perpetual 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 defendant of the members of his/her family, the penalty imposed for the crime of
violation of confidentiality shall be in addition to whatever crime he/she convicted of. (Sec. 72)

LIABILITY OF A PARENTS, SPOUSE OR

GUARDIAN WHO REFUSE TO COOPERATE
WITH THE BOARD OR ANY CONCERNED AGENCY
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 agency in the treatment and
rehabilitation of a drug defendant who is a minor, or in any manner, prevents or delay the after-care,
follow-up or other programs for the welfare of the accused drug defendant, whether under voluntary
submission program or compulsory submission program, may be cited in contempt by the court.
COST-SHARING IN THE TREATMENT AND REHABILITATION OF A DRUG DEFENDENT
The parents, spouse, guardian or any relative within the fourth degree of consanguinity of any person
who is confined under the voluntary submission program or compulsory submission program shall be
charged a certain percentage of the cost of his/her treatment and rehabilitation, the guidelines of which
shall be formulated by the DSWD taking into consideration the economic status of the family of the
person confined. The guidelines therein formulated shall be implemented by a social worker of the local
government unit. (Sec. 74)

LIMITED APPLICABILITY OF THE REVISED PENAL CODE

Notwithstanding any law, rule or regulation to the contrary, the provisions of the Revised Penal Code

(Act. 3814) as amended, shall not apply to the provision of this Act, except in the case of minor
offenders. Where the offender is a minor, the penalty for acts punishable by life imprisonment to death
provided therein shall be reclusion perpetua to death. (Sec. 98)

EXCEPTION TO NECESSITY
OF A SEARCH WARRANT
There is no doubt that the warrantless search incidental to a lawful arrest authorizes the arresting
officer to make a search upon the person arrested. An officer making an arrest may take from the
person arrested any money or property found upon his person which was used in the commission of the
crime or was in fruit of the crime or which might furnish the prisoner with the means of committing
violence or of escaping, which may be used as evidence in the trial of the case. (People v. Musa; GR
96177, 1/27/93)

LIKE ALIBI, FRAME UP IS EASY

TO FABRICATE, BUT DIFFICULT
TO PROVE
Frame-up, like alibi, is a defense that has been viewed by courts with disfavor for it can just as easily be
connected and is a common and standard line of defense in most prosecution arising from violations of
the Dangerous Drugs Act. In order for that defense to prosper, the evidence adduced must be clear and
convincing. (People v. Girang; GR 27949, 2/1/95)

BUY-BUST OPERATION
Is a form of entrapment employed by peace officers as an effective way of apprehending a criminal in
the act of the commission of the offense. Entrapment has received judicial sanction as long as it is
carried out with due regard to constitutional and legal safeguards. (People v. Basilgo; GR 107327,
8/5/94)

POSEUR-BUYER, GENERALLY
NEED NOT TESTIFY
The testimony of the poseur-buyer or of the confidential informant is no longer material considering
that accused-appellants drug pushing was positively attested to. Moreover, informants are generally
not presumed in court because of the need to hide their identity and preserve their invaluable service to
the police. (People v. Girang; GR 97949, 2/1/95)

EFFECT OF LIMITATION UNDER

SECTION 19, ART. VII OF THE
CONSTITUTION ON GRANT OF PARDON
The "conviction by final judgment" limitation under Section 19, Article VII of the present Constitution
prohibits the grant of pardon, whether full or conditional, to an accused during the pendency of his
appeal from his conviction by the trial court. Any application therefor, if one is made, should not be
acted upon or the process toward its grant should not be begun unless the appeal is withdrawn.
Accordingly, the agencies or instrumentalities of the Government concerned must require proof from
the accused that he has not appealed from his conviction or that he has withdrawn his appeal Such
proof may be in the form of a certification issued by the trial court or the appellate court, as the case
may be The acceptance of the pardon shall not operate as an abandonment or waiver of the appeal, and
the release of an accused by virtue of a pardon, commutation of sentence, or parole before the
withdrawal of an appeal shall render 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 from confinement. (People v. Maquilan)

RULE AS TO WHO SHOULD

BE CRIMINALLY CHARGED
The settled rule is that the determination of who should be criminally charged in court is essentially an
executive 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 been committed and that the accused is probably guilty
thereof. (People v. Esparas; GR 120034, July 10, 1998)

WHEN THERE IS A WAIVER

OF WARRANTLESS ARREST
The appellants are now precluded from assailing the warrantless search and seizure when they
voluntarily submitted to it as shown by their actuation during the search and seizure. The appellants
never protested when SPO3 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
bundles, it smelled of marijuana. The NBI later confirmed the eight (8) bundles to be positive for

marijuana. Again, the appellants did not raise any protest when they, together with their cargo of drugs
and their vehicle, were brought to the police station for investigation and subsequent prosecution. We
have ruled in a long line of cases that:
"When one voluntarily submits to a search or consents to have it made on his person or premises, he is
precluded from later complaining thereof (Cooley, Constitutional 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."
The appellants effectively waived their constitutional right against the search and seizure in question by
their voluntary submission to the jurisdiction of the trial court, when they entered a plea of not guilty
upon arraignment and by participating in the trial. (People v. Correa; GR 119246, Jan. 30, 98)

WHEN USE OF MOTOR VEHICLE

IN DRUG CASES OR ANY OTHER
CASE IS NOT AGGRAVATING
Simply stated, the motor vehicle which was used to transport prohibited drugs was not purposely
sought to facilitate the commission of the crime since such act of transporting constitutes the crime
itself, punishable under Section 4, Article II of Republic Act No. 6425, as amended. That a motor vehicle
was used in committing the crime is merely incidental to the act of transporting prohibited drugs. The
use of a motor vehicle is inherent in the crime of transporting as it must of necessity accompany the
commission thereof; hence, such use is not an aggravating circumstance. (People v. Correa)

CASES WHEN WARRANTLESS SEARCH IS ALLOWED

1. Warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of
Court and by prevailing jurisprudence;
2. Seizure of evidence in "plain view," the elements of which are:
(a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in
the pursuit of their official duties;
(b) the evidence was inadvertently discovered by the police who had the right to be
where they are;
(c) the evidence must be immediately apparent, and
(d) "plain view" justified mere seizure of evidence without further search;
3. Search of a moving vehicle. Highly regulated by the government, the vehicle's inherent mobility

reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly
reasonable suspicion amounting to probable cause that the occupant committed a criminal activity;
4. Consented warrantless search;
5. Customs search;
6. Stop and Frisk; and
7. Exigent and Emergency Circumstances.
(People v. Menguin; GR 120915, Apr. 13, 98)

CASES WHEN SEARCH WITHOUT

A WARRANT WAS VALID
In People v. Tangliben, acting on information supplied by informers, police officers conducted a
surveillance at the Victory Liner Terminal compound in San Fernando, Pampanga against persons who
may commit misdemeanors and also on those who may be engaging in the traffic of dangerous drugs. At
9:30 in the evening, the policemen noticed a person carrying a red travelling bag who was acting
suspiciously. They confronted him and requested him to open his bag but he refused. He acceded later
on when the policemen identified themselves. Inside the bag were marijuana leaves wrapped in a plastic
wrapper. The police officers only knew of the activities of Tangliben on the night of his arrest.
In instant case, the apprehending officers already had prior knowledge from their informant regarding
Aruta's alleged activities. In Tangliben policemen were confronted with an on-the-spot tip. Moreover,
the policemen knew that the Victory Liner compound is being used by drug traffickers as their "business
address". More significantly, Tangliben was acting suspiciously. His actuations and surrounding
circumstances led the policemen to reasonably suspect that Tangliben is committing a crime. In instant
case, there is no single indication that Aruta was acting suspiciously.
In People v. Malmstedt, the Narcom agents received reports that vehicles coming from Sagada were
transporting marijuana. They likewise received information that a Caucasian coming from Sagada had
prohibited drugs on his person. There was no reasonable time to obtain a search warrant, especially
since the identity of the suspect could not be readily ascertained. His actuations also aroused the
suspicion of the officers conducting the operation. The Court held that in light of such circumstances, to
deprive the agents of the ability and facility to act promptly, including a search without a warrant, would
be to sanction impotence and ineffectiveness in law enforcement, to the detriment of society.
Note, however, the glaring differences of Malmstedt to the instant case. In present case, the police
officers had reasonable time within which to secure a search warrant. Second, Aruta's identity was
priorly ascertained. Third, Aruta was not acting suspiciously. Fourth, Malmstedt was searched aboard a
moving vehicle, a legally accepted exception to the warrant requirement. Aruta, on the other hand, was
searched while about to cross a street.

In People v. Bagista, the NARCOM officers had probable 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 woman having the same appearance as that of accused-appellant would be
bringing marijuana from up north. They likewise had probable cause to search accused-appellant's
belongings since she fitted the description given by the NARCOM informant. Since there was a valid
warrantless search by the NARCOM agents, any evidence obtained in the course of said search is
admissible against accused-appellant. Again, this case differs from Aruta as this involves a search of a
moving vehicle plus the fact that the police officers erected a checkpoint. Both are exceptions to the
requirements of a search warrant.
In Manalili v. Court of Appeals and People, the policemen conducted a surveillance in an area of the
Kalookan Cemetery based on information that drug addicts were roaming therein. Upon reaching the
place, they chanced upon a man in front of the cemetery who appeared to be "high" on drugs. He was
observed to have reddish eyes and to be walking in a swaying manner. Moreover, he appeared to be
trying to avoid the policemen. When approached and asked what he was holding in his hands, he tried
to resist. When he showed his wallet, it contained marijuana. The Court held that the policemen had
sufficient reason to accost accused-appellant to determine if he was actually "high" on drugs due to his
suspicious actuations, coupled with the fact that based on information, this area was a haven for drug
addicts.
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 board the M/V Wilcon 9. His name
was known, the vehicle was identified and the date of arrival was certain. From the information they
had received, the police could have persuaded a judge that there was probable cause, indeed, to justify
the issuance of a warrant. Instead of securing a warrant first, they proceeded to apprehend Aminnudin.
When the case was brought before this Court, the arrest was held to be illegal; hence any item seized
from Aminnudin could not be used against him.
Another recent case is People v. Encinada where the police likewise received confidential information
the day before at 4:00 in the afternoon from their informant that Encinada would be bringing in
marijuana from Cebu City on board M/V Sweet Pearl at 7:00 in the morning of the following day. This
intelligence information regarding the culprit's identity, the particular crime he allegedly committed and
his exact whereabouts could have been a basis of probable cause for the lawmen to secure a warrant.
This Court held that in accordance with Administrative Circular No. 13 and Circular No. 19, series of
1987, the lawmen could have applied for a warrant even after court hours. The failure or neglect to
secure one cannot serve as an excuse for violating Encinada's constitutional right.
People v. Solayao, applied the stop and frisk principle which has been adopted in Posadas v. Court of
Appeals. In said case, Solayao attempted to flee when he and his companions were accosted by
government agents. In the instant case, there was no observable manifestation that could have aroused
the suspicion of the NARCOM agents as to cause them to "stop and frisk" accused-appellant. To
reiterate, accused-appellant was merely crossing the street when apprehended. Unlike in the

abovementioned cases, accused-appellant never attempted to flee from the NARCOM agents when the
latter identified themselves as such. Clearly, this is another indication of the paucity of probable cause
that would sufficiently provoke a suspicion that accused-appellant was committing a crime.
This Court cannot agree with the Solicitor General's contention for the Malasugui case is inapplicable to
the instant case. In said case, there was probable cause for the warrantless arrest thereby making the
warrantless search effected immediately thereafter equally lawful. On the contrary, the most essential
element of probable cause, as expounded above in detail, is wanting in the instant case making the
warrantless arrest unjustified and illegal. Accordingly, the search which accompanied the warrantless
arrest was likewise unjustified and illegal. Thus, all the articles seized from the accused-appellant could
not be used as evidence against her. (People v. Menguin)

WHEN SEARCH IS NOT VALID

Accused-appellant Aruta cannot be said to be committing a crime. Neither was she about to commit one
nor had she just committed a crime. Accused-appellant was merely crossing the street and was not
acting in any manner that would engender a reasonable ground for the NARCOM agents to suspect and
conclude that she was committing a crime. It was only when the informant pointed to accused-appellant
and identified her to the agents as the carrier of the marijuana that she was singled out as the suspect.
The NARCOM agents would not have apprehended accused-appellant were it not for the furtive finger
of the informant because, as clearly illustrated by the evidence on record, there was no reason
whatsoever for them to suspect that accused-appellant was committing a crime, except for the pointing
finger of the informant. This the Court could neither sanction nor tolerate as it is a clear violation of the
constitutional guarantee against unreasonable search and seizure. Neither was there any semblance of
any compliance with the rigid requirements of probable cause and warrantless arrests.
Consequently, there was no legal basis for the NARCOM agents to effect a warrantless search of
accused-appellant's bag, there being no probable cause and the accused-appellant not having been
lawfully arrested. Stated otherwise, the arrest being incipiently illegal, it logically follows that the
subsequent search was similarly illegal, it being not incidental to a lawful arrest. The constitutional
guarantee against unreasonable search and seizure must perforce operate in favor of accused-appellant.
As such, the articles seized could not be used as evidence against accused-appellant for these are "fruits
of a poisoned tree" and, therefore, must be rejected, pursuant to Article III, Sec. 3(2) of the Constitution.
(People v. Menguin)

WHEN VOLUNTARY SUBMISSION

TO SEARCH IS INAPPLICABLE
Aside from the inapplicability of the abovecited case, the act of herein accused-appellant in handing

over her bag to the NARCOM agents could not be construed as voluntary submission or an implied
acquiescence to the unreasonable search. The instant case is similar to People v. Encinada. (People v.
Menguin)
WHEN SEARCH IS NOT
ALLOWED AFTER
AN ARREST IS MADE
In the case of People v. Lua, this Court held:
"As regards the brick of marijuana found inside the appellant's house, the trial court correctly ignored it
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.
(Espano v. C.A.; GR 120431, April 1, 98)

MEANING OF TO TRANSPORT
IN DRUG CASES
In People vs. Lo Ho Wing, the Court defined the term "transport", as used under the Dangerous Drugs
Act to mean "to carry or convey from one place to another" , the operative words being "to carry or to
convey". The fact that there is actual conveyance suffices to support a finding that the act of
transporting was committed. It is immaterial whether or not the place of destination was reached.
(People v. Latura)

WHEN POLICE OFFICERS INTENTIONALLY PEEPED THRU A WINDOW THEN WENT INSIDE AND ARRESTED
THOSE INSIDE WHO ARE PACKING MARIJUANA. THE SAME IS ILLEGAL
The police officers intentionally peeped first through the window before they saw and ascertained the
activities of accused-appellants inside the room. In like manner, the search cannot be categorized as a
search of a moving vehicle, a consented warrantless search, a customs search, or a stop and frisk; it
cannot even fall under exigent and emergency circumstances, for the evidence at hand is bereft of any
such showing.
On the contrary, it indicates that the apprehending officers should have conducted first a surveillance
considering that the identities and address of the suspected culprits were already ascertained. After

conducting the surveillance and determining the existence of probable cause for arresting accusedappellants, they should have secured a search warrant prior to effecting a valid arrest and seizure. The
arrest being illegal ab initio, the accompanying search was likewise illegal. Every evidence thus obtained
during the illegal search cannot be used against accused-appellants; hence, their acquittal must follow in
faithful obeisance to the fundamental law. (PP -vs- ZENAIDA BOLASA Y NAKOBOAN, ET AL., G.R. No.
125754, Dec. 22, 1999)

SEARCH AND SEIZURE WITHOUT THE REQUISITE JUDICIAL WARRANT IS ILLEGAL AND VOID AB INITIO
As a general rule, the procurement of a search warrant is required before law enforcer may validly
search or seize the person, house, papers or effects of any individual. In People v. Valdez, the court ruled
that search and seizure conducted without the requisite judicial warrant is illegal and void ab initio.

xxx
Lawmen cannot be allowed to violate the very law they are expected to enforce. The Court is not
unmindful of the difficulties of law enforcement agencies in suppressing the illegal traffic of dangerous
drugs. However, quick solutions of crimes and apprehension of malefactors do not justify a callous
disregard of the Bill of Rights. We need not underscore that the protection against illegal search and
seizures is constitutionally mandated and only under specific instances are seizures allowed without
warrants.
In this case, the prosecutions evidence clearly established that the police conducted a search of
accuseds backyard garden without warrant; they had sufficient time to obtain a search warrant; they
failed to secure one. There was no showing of urgency or necessity for the warrantless search, or the
immediate seizure of the marijuana plants. (People vs. Alberto Pasudag)
Posted by Elmer Brabante at 10:07 PM
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