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ELMER AT RANDOMAnything from mundane to ethereal; from puerile to polemical. 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 ¾ 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 ACCUSED-PETITIONER? 1. if the accused, prior to the promulgation of decision of conviction is out on bail, he may be e. police records. It will also include the psychological and social information regarding the probationer. WHAT ARE THE MANDATORY CONDITIONS OF PROBATION? a. 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. comply with a program of payment of civil liability to the victim of his heirs. The findings should be drawn from the court records. suitability for probation. meet his family responsibilities. statement of defendants. devote himself to a specific employment and not to charge said employment without prior written approval of the probation officer. upon motion. he may be allowed temporary liberty. To present himself to the probation officer concerned for supervision within 72 hours from receipt of said order and b. evaluation of the petitioner. if he is under detention. on recognizance of a responsible member of a community who shall guarantee his appearance whenever required by the court. cooperate with a program of supervision. b. WHAT ARE THE OTHER CONDITIONS OF PROBATION? a. and if custodian cannot produce the petitioner. Summary hearing will be held for indirect contempt. and may include the program for supervision and suggested terms of conditions of probation and a recommendation either to deny or grant the probation. the custodian on recognizance shall be held in contempt of court. d. undergo medical. 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. 2. if he cannot post a bond. the aggrieved party and other persons who may know the petitioner and all other matters material to the petition. psychological or psychiatric examination and treatment and/or enter and remain in a . c. his potential for rehabilitation. IN CASE THE APPLICANT FOR PROBATION CANNOT BE PRODUCED BY THE CUSTODIAN ON RECOGNIZANCE.allowed on temporary liberty under his bail filed in said case. nor to explain his failure to produce the petitioner. to report to the probation officer at least once a month during the period of probation. g. when required for that purposes. 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. and the appellate court sustains the accused may still apply for probation. to overturn the entire decision or only with respect to penalty is a waiver to probation. h. the permission of the parole and probation officer must be sought. CONFIDENTIALITY OF RECORDS OF PROBATION The investigation report and the supervision and history of a probationer obtained under PD No. If the accused appeals his conviction for the purpose of totally reversing his conviction. abstain from drinking intoxicating beverages to excess. and l. as he believes the penalty is excessive or wrong. 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. has already been abandoned. the permission of the court must likewise be sought.specific institution. i. reside at premises approved by the court and not to change his residence w/o prior written approval. aside from the permission of the parole and probation officer. f. 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. j. refrain from visiting houses of ill-repute. k. The rule that if the accused appeals his conviction only with respect to the penalty. m. to overturn the entire decision or only with respect to penalty is a waiver to probation. An appeal therefore. b. permit the probation officer or an authorized social worker to visit his home and place of work. 29. has already been abandoned. irrespective of its purpose. irrespective of its purpose. attend or reside in a facility established for instruction or recreation of persons on probation. pursue a prescribed secular study or vocational training. PD 968: VIOLATION OF CONFIDENTIAL NATURE OF PROBATION RECORDS. The . he is deemed to have waived his right to probation. as the penalty is probationable. 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. If for more than thirty (30) days. An appeal therefore. EFFECT OF APPEAL BY THE ACCUSED OF HIS CONVICTION a. 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. 2. The filing of the application shall be deemed a waiver of the right to appeal. 4. . not to exceed six years. Those sentenced to serve a maximum term of imprisonment of more than six years. Those convicted of violation of election laws. An application for probation shall be filed with the trial court. MODIFICATION OF CONDITION OR PERIOD OF PROBATION The court.Subject to the provisions of this Decree. or motu propio may modify the conditions of probation or modify the period of probation as circumstances may warrant. Those convicted of RA 9156. on motion. Provided. AMENDMENT TO SECTION 4 OF PD 968: "Sec. after it shall have convicted and sentenced a defendant. WHO ARE DISQUALIFIED TO UNDERGO PROBATION 1. 3. 6. That no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction. 4.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." Thus. 3. (PD 1990) . 5. In case the penalty is fine. "An order granting or denying probation shall not be appealable. In all other cases. Those convicted of any offense against the security of the state. the probation shall not be less than the period of subsidiary imprisonment nor more than twice of the subsidiary imprisonment. Those who have been once on probation under the provisions of this decree. 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. a person who was sentenced to destierro cannot apply for probation. Reason: it does not involved imprisonment or fine. If the probationer has been sentenced to an imprisonment of not more than one year. the probation shall not exceed two years. Grant of Probation.00. and upon application by said defendant within the period for perfecting an appeal. 2. the trial court may. PERIOD OF PROBATION 1. "Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. more than by its nature. 63400. and compassion. G. ORDER DENYING PROBATION NOT APPEALABLE.S. 4/6/95). vs. As aptly noted in U. humanity.A. By the relative lightness of the offense. this discretion is to be exercised primarily for the benefit of organized society and only incidentally for the benefit of the accused. It is not served by a harsh and stringent interpretation of the statutory provisions. the accused is barred from filing a Petition for Probation (Pablo Francisco v. Even if a convicted person is not included in the list of offenders disqualified from the benefits of a decree. 1/17/83) TIMELINESS OF FILING APPLICATION FOR PROBATION The accused must file a Petition for Probation within the period for appeal. Balagot. the right of appeal should not be irrevocably lost from the moment a convicted accused files an application for probation. Durken. as measured by the penalty imposed. REMEDY CERTIORARI . (Santos v. (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. Alconcel. 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. Appeal and probation spring from the same policy considerations of justice.R. in the case at bar. Hence. Probation is a major step taken by our Government towards the deterrence and minimizing of crime and the humanization of criminal justice. (Tolentino v. If the decision of conviction has become final and executory. the first reason given by the respondent judge for his denial of the petition for probation that. (Pablo Bernardo v. C. 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. In line with the public policy behind probation. "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. No.JURISPRUDENCE UNDERLYING PHILOSOPHY OF PROBATION The underlying philosophy of probation is indeed one of liberality towards the accused. 3/18/83). MAIN CRITERION FOR DETERMINING WHO MAY BE GRANTED PROBATION. 215 SCRA 526) therefore a petition for probation may be denied by the Court. the grant of probation is nevertheless not automatic or ministerial. Cruz-Pano.. 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. MULTIPLE CONVICTIONS IN SEVERAL CASES PROBATIONABLE IF PENALTY FOR EACH CONVICTION IS PROBATIONABLE ." Evidently.Although an order denying probation is not appealable. separately and distinctly with the others.." and in each of the four (4) informations. 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. as alleged in the information(s). as each prison term imposed on petitioner was probationable. 4/16/95) REASON FOR FIXING CUT OFF POINT AT A MAXIMUM OF SIX YEARS IMPRISONMENT FOR PROBATION. has been variously condemned as "an especially vicious crime. 25 of The Revised Penal Code." For those who become . as a crime. CA." "one of the most pernicious evils that has ever crept into our society. 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. Consequently. WAIVER OF RIGHT TO APPEAL AND FINALITY OF JUDGEMENT A judgment of conviction becomes final when the accused files a petition for probation. disqualifies only those who have been convicted of grave felonies as defined in Art.A. C. 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. he was still eligible for probation. Those sentenced to a maximum term not exceeding six (6) years are not generally considered callous. as amended.A. he was charged with having defamed the four (4) private complainants on four (4) different.. Hence. The Probation Law. separate days. C. (Francisco v. 219 SCRA 78) EFFECT OF FILING PETITION FOR PROBATION. the law does not intend to sum up the penalties imposed but to take each penalty. the judgement is not executory until the petition for probation is resolved. the accused may file a motion for Certiorari from said order (Heirs of Francisco Abueg v. and thus may avail of probation VIOLATION OF RA 6425. supra). However. A VALID CAUSE FOR DISMISSAL IN SERVICE IN THE GOVERNMENT DESPITE PROBATION Drug-pushing. hard core criminals. 9 in relation to Art. the basis of the disqualification is principally the gravity of the offense committed and the concomitant degree of penalty imposed. and not necessarily those who have been convicted of multiple offenses in a single proceeding who are deemed to be less perverse. And." The image of the judiciary is tarnished by conduct..'s discharge from probation without any infraction of the attendant conditions therefor and the various certifications attesting to his righteous. and similar offenses have been committed by persons under the influence of dangerous drugs. Justice Padilla's comment in the sister case of Re: Petition of Al Argosino To Take The Lawyer's Oath. which demands of those in its service the highest degree of morality. Bar Matter No. as amended) is to save valuable human material. 8/22/96) PETITIONER MAY STILL EXHORT OFFENDER TO PERFORM CERTAIN ACTS DESPITE DISCHARGE FROM PROBATION IN CERTAIN CASES Petitioner Arthur M. (In Re: Cuevas. Court and police records show that a significant number of murders. Camaligan. March 19. "will continue with the assistance he has been giving to his community. It is not what we might call a 'contained' crime whose consequences are limited to that crime alone."often breeds other crimes. taking judicial notice of the general tendency of the youth to be rash. He may seek to reenter government service. (OCA v. The Court is prepared to give him the benefit of the doubt. vileness. Jr. honesty. "[t]he Court sincerely hopes that" Mr. Librado 260 SCRA 624. or while they are 'high. 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. 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. as this Court said in one case. or depravity in the private and social duties which a man owes to his fellowmen or to society in general. through his agreed and irresponsibility. ORDER OF COURT REQUIRED . Jr.' While spreading such drugs. which involves moral turpitude. to paraphrase Mr.. 1/27/98) EXPIRATION OF PERIOD OF PROBATION IS NOT TERMINATION. temerarious and uncalculating." while "peddlers of drugs are actually agents of destruction. modesty or good morals" including "acts of baseness.D. 968. the commission of other crimes.addicted to it "not only slide into the ranks of the living dead. 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. what is worse. Cuevas. The deserve no less than the maximum penalty [of death]. Jr." There is no doubt that drug-pushing is a crime which involves moral turpitude and implies "every thing which is done contrary to justice. It cannot be repeated too often that a public office is a public trust. The reform and rehabilitation of the probationer cannot justify his retention in the government service. the drug-pusher is also abetting. but only after he has shown that he is fit to serve once again. they become a grave menace to the safety of law-abiding members of society. an act which." Indeed nothing is more depraved than for anyone to be a merchant of death by selling prohibited drugs. Cuevas. it must not be forgotten that unlike pardon probation does not obliterate the crime of which the person under probation has been convicted. As a lawyer he will now be in a better position to render legal and other services to the more unfortunate members of society". like swindling and bigamy. While indeed the purpose of the Probation Law (P. contrary to the accepted rule of right and duty between man and man. No. 1997. rapes. 712. the "business" of robbing and stealing have become profitable. If the accused violates the condition of the probation before the issuance of said order. with intent to gain for himself or for another. a law was enacted to also punish those who buy stolen properties. terminating the probation. With the existence of "ready buyers". the probation may be revoked by the Court (Manuel Bala v. Martinez. 1612 (Anti-Fencing Law) is “the act of any person who. sell or dispose of. 1612) DEFINITION Fencing as defined in Sec. to have been derived from the proceeds of the crime of robbery or theft. keep. WHAT IS FENCING LAW AND HOW IT CAN BE COMMITTED "Fencing" is the act of any person who. conceal. firm. with intent to gain for himself or for another. acquire. possess. there must be an order from the Court of final discharge. item. object or anything of value which he knows. possess. item. conceal. 1612 or commonly known as the Anti-Fencing Law of 1979 was enacted under the authority of therein President Ferdinand Marcos. ipso facto. 2 of PD No.The mere expiration of the period for probation does not. receive. or in any other manner deal in any article. 1979. GR 111426. or in any manner deal in any article. or shall buy and sell. association corporation or partnership or other organization who/ which commits the act of fencing. Probation is not co-terminus with its period. People. or shall buy and sell. or should be known to him. object or anything of value which he knows or should be known to him. keep. (Dizon-Pamintuan vs. terminate the probation. shall buy. 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. acquire. or to have been derived from the proceeds of the crime of robbery or theft. The Implementing Rules and Regulations of the Anti-Fencing Law were subsequently formulated and it took effect on June 15. 11 July 94). For if there are no buyers then the malefactors could not profit from their wrong doings. A "Fence" includes any person. The law took effect on March 2. ANTI-FENCING LAW OF 1979 (PD NO. BRIEF HISTORY OF PD 1612 OR THE ANTI-FENCING LAW Presidential Decree No. sell or dispose of. Hence. . shall buy receive. 181 SCRA 459). if the value of the property involved is over 50 but not exceeding 200 pesos. The Implementing Rules provides for the guidelines of issuance of clearances or permits to sell used or secondhand items. items. b.000 pesos. the penalty provided in this paragraph shall be imposed in its maximum period.000 pesos. 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. if the value of the property involved is more than 12. keeping. association or firm. firm.WHO ARE LIABLE FOR THE CRIME OF FENCING. if the value of such property exceeds the latter sum. to give effect to the purpose of the law in putting an end to buying and selling stolen items. 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. f. "Unlicensed dealer/supplier" shall refer to any persons. The law provide for penalty range for persons convicted of the crime of fencing. partnership.000 pesos. Failure of which makes the owner or manager liable as a fence. 000 pesos. concealing and selling the stolen items. corporation. The penalty of arresto mayor in its medium period to prision correccional in its minimum period. . Their penalty depends on the value of the goods or items stolen or bought: a. but the total penalty which may be imposed shall not exceed twenty years. The penalty of prision mayor. regardless of whether the same has actually or in fact been used. If the fence is a corporation. The penalty of prision correccional in its medium and maximum periods.000 pesos but not exceeding 12. if the value of the property involved is more than 200 pesos but not exceeding 6. "Used secondhand article" shall refer to any goods. adding one year for each additional 10. In such cases. if the value of the property robbed or stolen is more than 6. c. It provided for the definition of the following terms: 1.000 pesos but not exceeding 22. The penalty of arresto mayor in its minimum period if such value does not exceed 5 pesos. the penalty shall be termed reclusion temporal and the accessory penalty pertaining thereto provided in the Revised Penal Code shall also be imposed. 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". object or anything of value obtained from an unlicensed dealer or supplier. AND ITS PENALTIES: The person liable is the one buying. partnership. The penalty of arresto mayor in its medium period if such value is over five (5) pesos but not exceeding 50 pesos. The penalty of prision correccional in its minimum and medium periods. 2. e. d. article. establishment or other entity seeking the clearance/permit. The Station Commander shall examine the documents attached to the application and may require the presentation of other additional documents. in a newspaper of general circulation for two consecutive days. 3. c. 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. b. The Station Commander may. which states: a. Failure to secure clearance/permit shall be punished as a fence. "establishment" or "entity" shall be construed to include any individual dealing in the buying and selling used secondhand articles. he shall cause the publication of the notice. Include the receipt or document showing proof of legitimacy of acquisition. if the Station Commander is not satisfied with the proof of legitimacy of acquisition. at the expense of the one seeking clearance/permit. that may result to the cancellation of business license. Full list of articles to be sold or offered for sale including the time and place of sale c. 5. if necessary. "Buy and Sell" refer to the transaction whereby one purchases used secondhand articles for the purpose of resale to third persons. "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. 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. If there are no newspapers in general circulation. which shall contain: a. Place where the articles are presently deposited. 2. "Store". Those who wish to secure the permit/clearance. manager or responsible officer in having in stock used secondhand articles. shall file an application with the Station Commander concerned. No fee will be charged for the issuance of the clearance/permit. name. The Station Commander shall require the owner of a store or the President. establishment or entity dealing in the buying and selling of used secondhand articles is located. the party seeking the clearance/permit .3. subject to the following conditions: a. 4. to show satisfactory proof of the legitimacy of acquisition of the article. as defined in paragraph hereof. complete inventory of such articles including the names and addresses from whom the articles were acquired. 4. PROCEDURE FOR SECURING PERMIT/CLEARANCE The Implementing Rules provided for the method of obtaining clearance or permit. require the submission of an affidavit accompanied by other documents showing proof of legitimacy of acquisition. 1. address and other pertinent circumstances b. 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. 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. which decision is final. whose decision may be appealed with the Minister (now Secretary) of National Defense. it shall appear that any of the articles in question is stolen property. within seventy-two (72) hours from receipt of the application. within 10 days. The Station Commander shall. In People vs. 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. establishment or entity is located or. where she lost a Chinese Gold Necklace and pendant worth some P4. where the articles in his possession are to be sold or offered for sale. quantities of phelonic plywood were stolen and the Court held that qualified theft had been committed. GR 111426. the crime of robbery or theft should have been committed before crime of fencing can be committed.M. A crime of robbery or theft has been committed. 5.shall. object or anything of value. Lucero there was first a snatching incident. buys. or buys and sells. item. which has been derived from the proceeds of the said crime. in the case of an individual. 2. keeps.000. no claim is made to any of the articles enumerated in the notice. 8. upon expiration of the period of publication or of the notice. conceals. may or may not be the same person committing the crime of fencing. The decision of the Director can still be appealed top the Director-General. 3. 11 July 94) As regards the first element. intent to gain for himself or for another. article. item. 7. Esguerra. Cebu City.00 to snatchers . and 4. If after 15 days. The accused. There is. (Dizon- Pamintuan vs People. act thereon by either issuing the clearance/permit requested or denying the same. sells. or object or anything of value has been derived from the proceeds of the crime of robbery or theft.. the Station Commander shall hold the article in restraint as evidence in any appropriate case to be filed. who is not a principal or accomplice in the commission of the crime of robbery or theft. The accused knows or should have known that the said article. or in any manner deals in any article. item. vs. If before expiration of the same period for the publication of the notice or its posting. object or anything fo value which has been the subject of robbery or thievery. Consunji. receives. where the bag of Mrs. on the part of the accused. post a notice daily for one week on the bulletin board of the municipal building of the town where the store. shall be prima facie evidence of fencing. The person committing the crime of robbery or theft. ELEMENTS 1. acquires. within 15 days. the Station Commander shall issue the clearance or permit sought. PRESUMPTION Mere possession of any good. 6. rules and regulations. Inc. possess. Denial of an application shall be in writing and shall state in brief the reason/s thereof. Maripaz Bernard Ramolete was snatch in the public market of Carbon. or disposes. firm. Articles held in restraint shall kept and disposed of as the circumstances of each case permit. As in the case of D. However. CA. Consunji. .. Muere (G. The second element speaks of the overt act of keeping. The court held that there is no proof that the spouses Muere. These actions are not indicative of a conduct of a guilty person. As noted by the trial court: ". Esguerra. concealing. It is thus illustrated in the case of Lim vs. This case involves the selling of alleged stolen Kenwood Stereo Unit in the store Danvir Trading. Inc. the third element did not exist in the case of D. in this case. and this should have apprised Norma of the possibility that they were stolen goods. Human experience belies her allegations as no businessman or woman at that. no eyewitness pointed to Lucero as the perpetrator and the evidence of the prosecution was not strong enough to convict him. the Court is not inclined to accept the accused's theory of buying in good faith and disclaimer of ever seeing. Respondents presented sales receipts covering their purchase of the items from Paramount Industrial. noted that the stolen articles composed of farrowing crates and G.I. Lucero was charged with violation of the Anti-Fencing Law. 07/30/96) where the subject of the court action are the alleged stolen phelonic plywood owned by D.000. thus they had no reason to suspect that the said items were products of theft. possessing.00. The snatchers sold the items to Manuel Lucero. v. Sr. later found to be in the premises of MC Industrial Sales and Seato trading Company. 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. This requires more than ordinary case and caution in dealing with customers. receiving. pipes were found displayed on petitioner's shelves inside his compound. the court in convicting Norma Adriatico. 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. As pointed out in the case of People vs. On the same vein. The accused known or should have known that the goods were stolen. and Norma having bought it from Crisilita for only P2. Consunji. The approximate total value of the jewelry were held to be at P20. Inc. which is a known hardware store in Caloocan.12902. where the accused. buying.700. had knowledge of the fact that the stereo was stolen. would let go of such opportunities for a clean profit at the expense of innocent owners. 08/22/96) In the case of People v. The court also considered the fact that Norma engage in the business of buying and selling gold and silver.M. . an existing establishment.R.. Makati. much more. Court of Appeals. owned by the spouses Muere. The store is engaged in buying and selling of second hand merchandise located at Pasay Road. acquiring.M. owned respectively by Eduardo Ching and the spouses Sy. Adriatico. buying the other articles. (Consunji v. Consequently. (Dunalao. selling or disposing or in any manner deals with stolen items. The said stereo was bought from Wynn's Audio. which business is very well exposed to the practice of fencing. The spouses Muere purchased the stereo from a known merchant and the unit is displayed for sale in their store. . the third element was not proven. 10/18/94).’’ The Court in convicting Ernesto Dunlao Sr.Manuel Elardo and Zacarias Pateras. 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. 5 of PD NO. or using force upon anything. 1612 creates a presumption of fencing and prescribes a higher penalty based on the value of the property. The mental state is presumed from the commission of an unlawful act. or shall buy and sell. Neither is the crime of robbery or theft made to depend on an act of fencing in order that it can be consummated. as cited in US v. by means of violence against or intimidation of any person. with intent to gain. sell or dispose of. the only inquiry is that. GR 77368). or in any other manner deal in any article. object or anything of value which he knows. with intent to gain for himself or for another. (People v De Guzman. possess. intent is immaterial. intent to gain need not be proven in crimes punishable by a special law such as the Anti-Fencing Law. Likewise. conceal. or shall be known to him. 1612 expressly provides that “mere possession of any good. On the other hand. It is the act itself which constitutes the offense and not the motive or intent. People. keep. dolo or deceit is immaterial in crimes punishable by special statute like the Anti- Fencing Law. intent to gain is a mental state. article. to have been derived from the proceeds of the crime of robbery or theft. Intent to gain is a mental state. shall buy. 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. fencing is the act of any person who. 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. Robbery is the taking of personal property belonging to another. 1612 although the preference for the latter would seem inevitable considering that fencing is a malum prohibitum. the existence of which is demonstrated by the overt acts of person. item. and PD No. The presumption does not offend the presumption of innocence enshrined in the fundamental law. 14 Phils. Go Chico. item. has the law been violated? (in Gatdner v. acquire. However. (Dunlao v. . the existence if which is demonstrated by the overt acts of the person. (supra) MERE POSSESSION OF STOLEN ARTICLE PRIMA FACIE EVIDENCE OF FENCING Since Sec. The crimes punishable by special laws are called "acts mala prohibita". 134) When the act is prohibited by law. receive. The rule on the subject is that in acts mala prohibita. CA) again. as the keeping of stolen items for subsequent selling.The last element is that there is intent to gain for himself or for another. 22 BOUNCING CHECKS LAW .accused knows or should have known that the items were stolen. of persons running for elective position -"Sec.FENCING AS A CRIME INVOLVING MORAL TURPITUDE. he was declared disqualified from running the position of Mayor in Cavinti. 12/22/97) BATAS PAMBANSA BLG. one being the robber or the thief or the actual perpetrators. 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. 40 of the Local Government Code. SEC. In violation of the Anti-Fencing Law. as mere possession thereof is enough to give rise to a presumption of fencing. ESSENCE OF VIOLATION OF PD 1612. (Caoili v. (Dela Torre v. COMELEC 07/05/96) Moral turpitude can be derived from the third element . differs in point in time and degree but both invaded one's peaceful dominion for gain. In the case of Dela Torre.. CA. Participation of each felon. (Caoili v CA. GR 128369.. GR 128369." 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. 12/22/97) PROOF OF PURCHASE WHEN GOODS ARE IN POSSESSION OF OFFENDER NOT NECESSARY IN ANTI-FENCING The law does not require proof of purchase of the stolen articles by petitioner. 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. 2 OR ANTI-FENCING PD 1612. (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. 1995 elections because of the fact of the disqualification under Sec. 40 Disqualifications . This signifies moral turpitude with moral unfitness. and the other as the fence.(a) Those sentenced by final judgement for an offense involving moral turpitude. It was incumbent upon petitioner to overthrow this presumption by sufficient and convincing evidence. Laguna in the last May 8. Nevertheless. Clearly. 8/8/98) NOTICE. he cannot be held administratively liable. The drawee bank is further obligated to state whether the drawer of the check has sufficient funds in the bank or not. it was error to convict complainant on the basis of her letter alone. knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank. as a general rule. (Gutierrez v Pallatao. 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. If the drawee bank fails to do so. or attached thereto the reason for the drawee’s dishonor or refusal to pay the same. b. Rather. despite this incorrect interpretation of a rule on evidence.ACTS PUNISHABLE: a. prosecution for violation of BP 22 may not prosper. any person who makes or draws and issues any check to apply on account or for value. for which reason. we reiterate the prevailing rule in our jurisdiction as established by current jurisprudence. 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. ordered the bank to stop payment. for which. or credit. or would have been dishonored for the same reason had not the drawee. if the same is presented within ninety days from date of issuance. 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. DUTY OF THE DRAWEE BANK The drawee bank has the duty to cause to be written. 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. . it is dishonored by the drawee bank. must notify the drawer of the check that the same was dishonored. Any person who having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check. be offered in evidence because the gravamen of the offense charged is the act of knowingly issuing a check with insufficient funds. without any valid reason. which check is subsequently dishonored by the drawee bank for insufficiency of funds. printed or stamped in plain language thereon. it is at most an error in judgment. AN INDISPENSABLE REQUISITE FOR PROSECUTION Section 3 of BP 22 requires that the holder of the check or the drawee bank. for the payment of such check in full upon its presentment. 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. In this regard. but which checks is subsequently dishonored. 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. Offender cannot claim good faith for it is malum prohibitum.. The agreement surrounding the issuance of the checks need not be first locked into. i. delivered or uttered in the Philippines. closed his account.e. since the law has provided that the mere issuance of any kind of check. (Lazaro vs . if the lessor of the equipment pulled out the loaned equipment. CHECK DRAWN AGAINST A DOLLAR ACCOUNT. regardless of the intent of the parties. 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. whether the check is intended merely to serve as guarantee or deposit. In prosecutions for violation of BP 22. Said check is still with consideration. the Judge was even held administratively liable. (Caram Resources v. CA) GUARANTEE CHECKS. the agreement of the parties in respect to the issuance of the check is inconsequential or will not affect the violation of BP 22. CHECKS ISSUED IN PAYMENT OF INSTALLMENT Checks issued in payment for installment covered by promissory note and said checks bounced. upon signing of the promissory note. the drawer is liable if the checks were drawn against insufficient funds. The drawer has no obligation to make good the check because there is no more deposit to guaranty. when accused issued a check as warranty deposit for lease of certain equipment. 215 SCRA. DRAWER. Contreras) In this case. STILL LIABLE The mere act of issuing a worthless check is punishable. In the case of Magno vs CA. makes the person who issued the check liable. especially that the drawer. even if the same is payable outside of the Philippines (De Villa v. even knowing that he has no funds or insufficient funds in the bank is not liable. therefore. if the check is presented to the bank and the same was dishonored due to insufficiency of funds. prejudice or damage is not prerequisite for conviction.AGREEMENT OF PARTIES REGARDING THE CHECK IS NOT A DEFENSE In the case of People vs Nitafan. and on the basis of the conclusions he finds established. or of knowing rendition of an unjust decision. GR 105461). All that is expected of him is that he follow the rules prescribed to ensure a fair and impartial hearing. (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. It is . CAN A PERSON BE HELD LIABLE FOR ISSUING A CHECK WITH SUFFICIENT FUNDS FOR VIOLATION OF BP 22? Yes.CA. Blg. with only his conscience and knowledge of the law to guide him.P. deceit and damage are essential elements of the offense and have to be established with satisfactory proof to warrant conviction. 1997) JURISDICTION IN BP 22 CASES In respect of the Bouncing checks case. (Uy v Court of Appeals. Matter #RTJ-95- 1326. the elements of deceit and damage are neither essential nor required. et al. 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. (b) the maker. called upon to try facts or interpret the law in the process of administering justice. are irrelevant and immaterial in an administrative proceeding against him. No one. RULE ON RENDERING UNJUST JUDGMENT. it is dishonored by the drawee bank. the offense also appears to be continuing in nature. ETC. adjudicate the case accordingly." (Gutierrez v Pallatao. For violation of the Bouncing Checks Law. drawing and issuance of any check to apply to account or for value. 22 are (a) the making. on the other hand.. BY A JUDGE In the case of De la Cruz vs. GR 119000. assess the different factors that emerge therefrom and bear on the issues presented. Adm. ordered the bank to stop payment. for which reason. can be infallible in his judgment. 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. July 8. without valid reason. Concepcion this Court declared: "Mere errors in the appreciation of evidence. IGNORANCE. July 28. the elements of B. and. 1998) DIFFERENCE BETWEEN ESTAFA AND VIOLATION OF BP 22 In the crime of estafa. unless so gross and patent as to produce an inference of ignorance or bad faith. Rather. 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. September 11. by itself. the Court of Appeals pointed out that the petitioner obviously failed to distinguish a violation of B. that jurisdiction or venue is determined by the allegations in the information. . Manzanilla. II. 190. August 28. 167 SCRA 487. Hon. 2089-R (688). 1987 "the determinative factor (in determining venue) is the place of the issuance of the check".P. which are controlling (Arches vs. L-27410. Bellosillo. . it is likewise true that knowledge on the part of the maker or drawer of the check of the insufficiency of his funds. supra." "knowledge" is an essential ingredient of the offense charge. knowing at the time issue that he does not have sufficient funds' or having sufficient funds in or credit with the drawee bank . 9/5/96) . The Information filed herein specifically alleges that the crime was committed in San Fernando Pampanga and therefore within the jurisdiction of the Court below. jurisdiction to take cognizance of the offense also lies in the Regional Trial Court of Pampanga. Villar. Cruz. the Regional Trial Court of Baguio City has jurisdiction to try Criminal Case No. 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. 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. Rodrigo. 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. a continuing eventuality. 1975. Grospe. (Ibasco vs CA. The case. Accordingly. supra. 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. could have been filed also in Bulacan. 75217- 18. 81 Phil. No. L-27126. 1970. This ruling was reiterated in the case of Lim vs. No. for which reason it is dishonored by the drawee bank.R. Manzanilla. In the case at bench it appears that the three (3) checks were deposited in Lucena City. 22 from estafa under Article 315 (2) [d] of the Revised Penal Code. where it was held: Besides. Blg. whether the accused be within one territory or another. 33 SCRA 186). And. 1987). Hon. which is an essential ingredient of the offense is by itself a continuing eventuality. 66003-04. is. May 29. Blg. reiterated in People vs. 22 applies even in cases where dishonored checks were issued as a guarantee or for deposit only. As defined by the statute. Veridiano. Moreover. L-62243. As held in Que vs. Nos. 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. jurisdiction or venue is determined by the allegation in the Information. we ruled in the same case of People v. December 11. it was held in People v.R. 66 SCRA 235). knowledge. However. 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. It further stressed that B.true that the offense is committed by the very fact of its performance (Colmenares vs. therefore. 132 SCRA 523). Hon. This being the case. whether the accused be within one territory or another (People vs. G.P. Hon. No. People of the Philippines. G. as pointed out in the Manzanilla case. cited in Tuzon vs. Manzanilla. Nos. 6/20/97) ANTI-GRAFT & CORRUPT PRACTICES ACT (RA NO 3019) ANTI-GRAFT AND CORRUPT PRACTICES ACT Corrupt practices of public officers. (Lim Lao v CA. 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. and even at the time the checks were subsequently dishonored by the drawee bank. this finding is binding on this Court. It is important to stress. at the time the same were issued. 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. her duties were limited to the marketing department of the Binondo branch." The Court of Appeals affirmed this factual finding. funding of checks was the sole responsibility of the Treasury Department.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. 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. There is a prima facie presumption of the existence of this element from the fact of drawing. the payment of which was subsequently refused for insufficiency of funds. (Lim Lao v CA. however. The notice of dishonor may be sent by the offended party or the drawee bank. . that this is not a conclusive presumption that forecloses or precludes the presentation of evidence to the contrary. Pursuant to prevailing jurisprudence. 6/20/97 LACK OF ADEQUATE NOTICE OF DISHONOR. The scope of petitioner's duties and responsibilities did not encompass the funding of the corporation's checks. (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. Under the organizational structure of Premiere Financing Corporation. issuing or making a check. present. to act within a reasonable time on any matter pending before him for the purpose of obtaining. even if he votes against the same or does not participate in the action of the board. from any person for whom the public officer. for himself or for any other person. into any contract or transaction manifestly and grossly disadvantageous to the same. (h) Director or indirectly having financing or pecuniary interest in any business. on behalf of the Government.(a) Persuading. or in which he is prohibited by the Constitution or by any law from having any interest. in any manner or capacity. (e) Causing any undue injury to any party. or will secure or obtain. or irregular transaction or acts by the board. ( f ) Neglecting or refusing. panel or group of which he is a member. evident bad faith or gross inexcusable negligence. committee. or having a material interest in any transaction or act requiring the approval of a board. without prejudice to Section thirteen of this Act. (c) Directly or indirectly requesting or receiving any gift. (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. or giving any private party any unwarranted benefits. or influenced to commit such violation or offense. from any person interested in the matter some pecuniary or material benefit or advantage. or allowing himself to be persuaded. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. induced. share. inequitable. in connection with any contract or transaction between the Government and any other part. (b) Directly or indirectly requesting or receiving any gift. panel or group to which they belong. or benefit. Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly unlawful. 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 for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party. (i) Directly or indirectly becoming interested. and which exercises discretion in such approval. in consideration for the help given or to be given. without sufficient justification. panel or group. any Government permit or license. wherein the public officer in his official capacity has to intervene under the law. has secured or obtained. after due demand or request. (g) Entering. for personal gain. advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality. whether or not the public officer profited or will profit thereby. contract or transaction in connection with which he intervenes or takes part in his official capacity. including the Government. for himself or for another. directly or indirectly. percentage. present or other pecuniary or material benefit. acquired by his office or by him on account of his official position to unauthorized persons. 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. 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. MEANING OF “CAUSING UNDUE INJURY” The act of giving any private party any unwarranted benefit. If in accordance with the provisions of RA 1379. (Santiago vs Garchitorena. d. advantage or preference is not an indispensable element of causing any undue injury to any part. that fact shall be a ground for dismissal or removal. ELEMENTS OF NEGLECT OF DUTY UNDER SEC. licenses or concessions but all acts of public officers or employees which have caused undue injury to others. MEANING Prima facie evidence of and dismissal due to unexplained wealth. WHERE PUBLIC OFFICER ACTED WITH MANIFEST PARTIALITY. 2 Dec. et al. c.. permit. whether in his name or in the name of other persons. privilege or advantage. or of a mere representative or dummy of one who is not so qualified or entitled. reasonable time has elapsed from such demand or request without the public officer having acted on the matter pending before him. (k) Divulging valuable information of a confidential character. EVIDENT BAD FAITH. although there may be instances where both elements concur. Coronado v Sandiganbayan. In Mejoroda v Sandiganbayan. an amount of property and/or money manifestly out of proportion to his salary and to his other lawful income. a public official has been found to have acquired during his incumbency. 93). b. 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. OR INEXCUSABLE NEGLIGENCE .( j) Knowingly approving or granting any license. or releasing such information in advance of its authorized release date. permit. privilege or benefit in favor of any person not qualified for or not legally entitled to such license. the offender is a public officer. 3 OF RA 3019 a. the said officer has neglected or has refused to act without sufficient justification after due demand or request has been made upon him. UNEXPLAINED WEALTH. 3. (Mejorada v Sandiganbayan. Title 7 of the RPC. the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: xxx xxx xxx (e). b. Section 3 enumerates in eleven subsections the corrupt practices of any public officer declared unlawful. and d. . or gave any party any unwarranted benefit. Its reference to any public officer is without distinction or qualification and it specifies the acts declared unlawful. LETTER (e) OF RA 3019. his action caused undue injury to the government or any private party. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. evident bad faith or gross inexcusable negligence. including the Government.Sec. Corrupt practices of public officers. or giving any private party any unwarranted benefits. inexcusable negligence. the public officer committed the prohibited act during the performance of his official duty or in relation to his public position. 3. VIZ: a. 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. c. SUSPENSION UNDER R. under the ordinary concept of “public officer” may not come within the term. 151 SCRA 399). VIOLATION OF SECTION 3 (E) OF RA 3019 REQUIRES PROOF OF THE FOLLOWING FACTS. advantage or preference to such parties.A. CAUSING UNDUE INJURY UNDER SEC. the public officer acted with manifest partiality evident bad faith or gross. advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality. 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. or any offense involving fraud upon government or public funds . the accused is a public officer discharging administrative or official functions or private persons charged in conspiracy with them. Causing any undue injury to any party. Book II. MEANING.In addition to acts or omissions of public officers already penalized by existing law. We agree with the view adopted by the Solicitor General that the last inclusion of officers and employees of offices or government corporations which. R. . liability incurred by him during his previous term of office." Likewise. Sanchez. therefore. Luis Santos and Melvin Vargas. (Conducto v. it was specifically declared in the case of Ingco vs. 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 above-described crimes for the purpose of granting or denying the sought for suspension. his re-election is not a bar to his suspension as the suspension sought for is in connection with a criminal case. MTJ-98-1147. to the extent of cutting off the right to remove him therefor. 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. No. 1994]. No. 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. No. L-23220. MTJ-98-1147. the Court held that "as applied to criminal prosecutions under RA 3019. July 2. it will continue for ninety (90) days. however.R.In the same case. G. In the case of Rodolfo E. 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. Aguinaldo vs. (Bolastig vs. 235 SCRA 103). therefore. Sanchez. 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. 21 SCRA 1292.M. Sandiganbayan. 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. 212 SCRA 768. 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. 17 this Court explicitly ruled that the re- election of a public official extinguishes only the administrative. A. otherwise. 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. Monzon. 110503 [August 4. The foregoing rule. G. Hon. July 2. that "The ruling. A.M. thus: The ruling. preventive suspension will last for less than ninety (90) days only if the case is decided within that period. because a crime is a public wrong . No. 18 December 1967." (Conducto v.or property is filed in court. . finds no application to criminal cases . but not the criminal. Monzon. determined at a pre-suspension hearing. that he has not been afforded the right to due preliminary investigation. 1998) PRE-CONDITION OF SUSPENSION (PREVENTIVE) UNDER SEC. e.A. under the Constitution. Monzon. (Conducto v. at least insofar as a public officer is concerned. Such a hearing is in accord with the spirit of the law. et al. RA 3019 It is mandatory for the court to place under preventive suspension a public officer accused before it. No. considering the serious and far-reaching consequences of a suspension of a public official even before his conviction. is not automatic or self-operative.g. vs. for instance. 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. Mar. does not include reelection to office as one of them. A pre-condition thereof is the existence of a valid information. 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. This must be the reason why Article 89 of the Revised Penal Code. or refuse suspension of the latter and dismiss the case. and is injurious not only to a person or group of persons but to the State as a whole. 1998) GUIDELINES TO BE FOLLOWED IN PREVENTIVE SUSPENSION CASES "In the leading case of Luciano. 1971. But once a proper determination of the validity of the information has been made. it may be briefly stated that upon the filing of such information. which enumerates the grounds for extinction of criminal liability. Sandiganbayan. 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. A. et al. that the acts imputed to him do not constitute a specific crime (under R. it becomes the ministerial duty of the court to forthwith issue the order of preventive suspension. GR 124067. Also. 40 SCRA 187). such show-cause order of the trial court would no longer be . 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. 3019 or the Revised Penal Code) warranting his mandatory suspension from office under Section 13 of the Act. 13. 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. The court has no discretion. July 30. MTJ-98-1147. or that the information is subject to quashal on any of the grounds set out in Rule 117 of the Rules of Court. July 2. pursuant to section 13 of said Act. (Segovia v.more atrocious in character than mere misfeasance or malfeasance committed by a public officer in the discharge of his duties. it is only the President who may grant the pardon of a criminal offense. and the demands of public interest for a speedy determination of the issues involved in the case. 27. Imposition of suspension. (L-32950.M. 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. Mariano. 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. however. 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. and (4) That the public officer has acted with manifest partiality.g. e.necessary. whether the government or a private party.' (Segovia v. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. the act for which he stands charged do not constitute a violation of the provisions of Republic Act No. say. What is indispensable is that the trial court duly hear the parties at a hearing held for determining the validity of the information. 11. advantage or preference in the discharge of his official. evident bad faith or gross inexcusable negligence. administrative or judicial functions through manifest partiality. 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. and not unduly protracted such as to thwart the prompt suspension envisioned by the Act. 3(e) of RA 3019 xxx xxx xxx (c) Causing any undue injury to any party.. if the trial court. Hence. finds the ground alleged in the quashal motion not to be indubitable. 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. Mar. (3) That he or she causes undue injury to any party. including the Government. 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 thereafter hand down its ruling. (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. that he has not been afforded the right of due preliminary investigation. GR 122166. or he may present a motion to quash the information on any of the grounds provided in Rule 117 of the Rules of Court. or giving any private party any unwarranted benefits. Sandiganbayan) WHEN MAY A PUBLIC OFFICER BE LIABLE FOR CAUSING UNDUE INJURY UNDER SEC. (d) No specific rules need be laid down for such pre-suspension hearing. issuing the corresponding order of suspension should it uphold the validity of the information or withhold such suspension in the contrary case. 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. Sandiganbayan. evident bad faith or gross inexcusable negligence." (Llorente v. 1998) MEANING OF BAD FAITH UNDER SECTION 3(e) OF RA 3019 ." To hold a person liable under this section. " However. a breach of sworn duty through some motive or intent or ill will. Sandiganbayan) SUSPPENSION (PREVENTIVE) OF LOCAL OFFICIALS SHALL ONLY BE FOR 60 DAYS On the other hand. 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. 3[f]: "(f) Neglecting or refusing. 8 NE 2nd Series 895. 2) Said officer has neglected or has refused to act without sufficient justification after due demand or request has been made on him. 18 SCRA 155. and 4) Such failure to so act is 'for the purpose of obtaining. (Llorente v. further disquisition is not proper. after due demand or request. it partakes of the nature of fraud. Sandiganbayan) WHEN OFFENDER IS NOT LIABLE UNDER SEC. if not defied. (f) OF RA 3019 It would appear that petitioner's failure or refusal to act on the complainant's vouchers. 166-167). directly or indirectly. The Sandiganbayan erred in imposing a 90 day suspension upon petitioner for the single case filed against him. 3[f]. Evident bad faith connotes a manifest deliberate intent on the part of the accused to do wrong or cause damage. (Llorente v. 3(e) BUT UNDER SEC. . or discriminating against another." In Jacinto. 3) Reasonable time has elapsed from such demand or request without the public officer having acted on the matter pending before him. his authority. Such actions were measures taken by a superior against an erring employee who studiously ignored. and he removed her name from the plantilla because she was moonlighting during office hours. evident bad faith was not appreciated because the actions taken by the accused were not entirely without rhyme or reason. Hence. from any person interested in the matter some pecuniary or material benefit or advantage in favor of an interested party." Here. or the delay in his acting on them more properly falls under Sec. to act within a reasonable time on any matter pending before him for the purpose of obtaining. or for purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party. without sufficient justification. petitioner is not charged with a violation of Sec. not the causing of undue injury. he refused to release the complainant's salary because the latter failed to submit her daily time record. Carrascoso. (Spiegel v Beacon Participations. he refused to approve her sick-leave application because he found out that she did not suffer any illness. Neither may this Court convict petitioner under Sec. we find merit in petitioner's second assigned error. it imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong. the neglect or refusal to act within a reasonable time is the criminal act. from any person interested in the matter some pecuniary or material benefit or advantage. its elements are: "1) The offender is a public officer. directly or indirectly. 1007)."Bad faith does not simply connote bad judgment or negligence. Thus. 3[f] without violating his constitutional right to due process. (Doromal v. First. 10501. Thus." (Rios v. the law's command that he "shall be suspended from office" pendente lite must be obeyed. even for a brief moment. . GR 129913. although the victims were killed while sleeping as guests in the house of another. Basa. 10499. is sheltered by the same roof and protected by the same intimacy of life it affords. but it is. It may not be his house. The dwelling need not be owned by the victim. 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). 10502 and 10503 should be dismissed. "any single preventive suspension of local elective officials shall not extend beyond sixty (60) days. 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. 26. whether it be for a fixed or indefinite period. even if it be conceded. Sandiganbayan) DEATH PENALTY LAW (RA 7659) PROSTITUTES CAN BE A VICTIM OF RAPE As to the suggestion that ANALIZA was a prostitute. cannot absolve him of his liability for rape. the informations in Criminal Cases Nos. (People v. His approved leave of absence is not a bar to his preventive suspension for as indicated by the Solicitor General. we find it unnecessary to rule on the other issues raised by petitioner. As aptly stated in People v. 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. prostitutes can be victims of rape. Set. Sepr. 10500. dwelling was appreciated. 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. may be cancelled or shortened at will by the incumbent. the stranger.Under Section 63 (b) of the Local Government Code. that alone. Sandiganbayan. In view of the foregoing. 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. in People v. (Tatad v. an approved leave. GR 85468. Sandiganbayan. A. Deleverio) RECLUSION PERPETUA IS LIGHTER THAN LIFE IMPRISONMENT AND IF ONE IS SENTENCED TO LIFE IMPRISONMENT AND LATER IMPOSED RECLUSION PERPETUA TO SAME OFFENSE. Any reasonable doubt must be resolved in favor of the accused. 7659. the father-daughter relationship in rape cases. Court's must not bring cases within the provision of a law which are not clearly embraced by it. Appellant is merely a step-grandparent who obviously is neither an "ascendant" nor a "step-parent" of the victim.) 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. too. THE PENALTY THAT SHOULD BE IMPOSED IS RECLUSION PERPETUA Since reclusion perpetua is a lighter penalty than life imprisonment. a retroactive . Atop. It may be pointed. Manyuhod. however. appreciated as an aggravating circumstance. 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. so. 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."home" to him. but merely reclusion perpetua for. Hence. no person who is not clearly within the terms of a statute can be brought within them. 15 OF THE RPC Clearly then. that without the foregoing amendment. (People v. No. In the recent case of People vs. has been treated by Congress in the nature of a special circumstance which makes the imposition of the death penalty mandatory. He is entitled to respect even for that short moment. No act can be pronounced criminal which is not clearly made so by statute." (People v. assuming that Relanne's testimony in court would have confirmed what she narrated in her sworn statement (Exhibit "C"). the penalty imposable on accused then would not be death. relationship as an alternative circumstance under Article 15 of the Revised Penal Code. as to him. as among those named in the enumeration. 57 If relationship in the instant case were to be appreciated under Article 15 of the Revised Penal Code." (People v. in this case. who is legally married to Roxan's natural grandmother. and considering the rule that criminal statutes with a favorable effect upon the accused have. should no longer be applied in view of the amendments introduced by R. or between accused and Relanne. The Court said: "It is a basic rule of statutory construction that penal statutes are to be liberally construed in favor of the accused. Alfeche) WHEN RELATIONSHIP IS NOT AN ALTERNATIVE CIRCUMSTANCE UNDER ART. relationship would still be an aggravating circumstance in the crimes of rape (Article 335) and acts of lasciviousness (Article 336). Jr. . the legislative arm of government enacts criminal laws that define and punish illegal acts that may be committed by its own subjects. As early as 1886. The Revised Penal Code. We do know that our forefathers killed to avenge themselves and their kin and that initially." and this we have reiterated in the 1995 case of People v. One of the indispensable powers of the state is the power to secure society against threatened and actual evil. the penalty imposable upon the accused should be reclusion perpetua and not life imprisonment. 1932. Echegaray) . religious or secular. not to punish in the name of the state. have not stopped debating on the causes of criminal behavior and the purposes of criminal punishment. the criminal law was used to compensate for a wrong done to a private party or his family. the executive agencies enforce these laws. is an ancient practice. provided for the death penalty in specified crimes under specific circumstances. something more than the mere extinguishment of life. (People v. as it was originally promulgated. though. unjust nor excessive. the imposition of death as punishment for violation of law or custom. In Ex-parte Kemmler. this notwithstanding occasional opposition to the death penalty provisions therein. Although penologists. capital punishment had entered our legal system through the old Penal Code.S. (People v. 136 U. but the punishment of death is not cruel. Veneracion. Echegaray) WHY DEATH PENALTY IS NOT A CRUEL AND UNUSUAL PUNISHMENT "The penalty complained of is neither cruel.'" “as long as that penalty remains in the statute books. and as long as our criminal law provides for its imposition in certain cases. within the meaning of that word as used in the constitution. 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.effect. our criminal laws have been perceived as relatively stable and functional since the enforcement of the Revised Penal Code on January 1. throughout history. it is the duty of judicial officers to respect and apply the law regardless of their private opinions. which was a modified version of the Spanish Penal Code of 1870. Pursuant to this. the United States Supreme Court said that 'punishments are cruel when they involve torture or a lingering death. It implies there something inhuman and barbarous. Latura) JUSTIFICATION FOR THE IMPOSITION OF THE DEATH PENALTY Although its origins seem lost in obscurity. 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. 436. and the judiciary tries and sentences the criminals in accordance with these laws. (People v. by reason of their inherent or manifest wickedness. (3) Parricide (Sec. 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. is still plain enough". 3). 7659. (c) serious physical injuries were inflicted on the victim or threats to kill him were made. distribution. 11). (d) a building or factory in the service of public utilities. (c) a train. the following crimes are penalized by reclusion perpetua to death: (1) Treason (Sec. (b) the rape is committed by two or more persons. (2) Qualified piracy (Sec. (5) Infanticide (Sec. (8) Destructive arson if what is burned is (a) one or more buildings or edifice. No. and (g) a storehouse or factory of explosive materials located in an inhabited place. if the arson is perpetrated by two or more persons (Sec. (9) Rape attended by any of the following circumstances: (a) the rape is committed with a deadly weapon. 8). . (f) an arsenal. (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. (People v. viciousness. (e) a building for the purpose of concealing or destroying evidence Or a crime. 7). or government museum. 2). 6). ship or airplane for public use. . The language.). odious and hateful offenses and which.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. female or a public officer (Sec. 10). or regardless of what is burned. (11) Importation of prohibited drugs (Sec. except when the accused is any of the parents. delivery. and (c) the rape is attempted or frustrated and committed with homicide (Sec. rape or intentional mutilation (Sec. . while rather awkward. (12) Sale. and (d) if the victim is a minor. and transportation of prohibited drugs (id. (7) Robbery with homicide. the crimes punishable by death under this Act are heinous for being grievous. shall be reduced to reclusion perpetua. atrocity and perversity are repugnant and outrageous to the common standards and norms of decency and morality in a just." (People v. 9). (4) Murder (Sec. civilized and ordered society. Echegaray) WHAT ARE THE CRIMES PUNISHABLE BY RECLUSION PERPETUA TO DEATH UNDER RA 7659 Under R. fireworks factory. 12). (b) it was committed simulating public authority. Echegaray) DEFINITION OF HEINOUS CRIMES ".A. administration. 13). (10) Plunder involving at least P50 million (Sec. if already imposed. (b) a building where people usually gather. 5). even if none of the circumstances above-mentioned were present in the commission of the offense. (16) Cultivation of plants which are sources of prohibited drugs (id. gift or present. 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. delivery. 14). (22) Misappropriation. the maximum penalty [of death] shall be imposed. (14) Manufacture of prohibited drugs (id. (19) Sale. When the victim is killed or dies as a consequence of the detention or is raped.). 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. (18) Manufacture of regulated drugs (id. he shall suffer the penalty of death. dive or resort for users of prohibited drugs (id." (Sec. If it is the public officer who asks or demands such gift or present.).). transportation. 19).). (23) Planting evidence of dangerous drugs in person or immediate vicinity of another to implicate the latter (Sec. (20) Maintenance of den. (People v.A. dispensation. misapplication or failure to account dangerous drugs confiscated by the arresting officer (Sec. driver or occupant of the carnapped motor vehicle is killed or raped (Sec. death . 20)." (Sec. and (24) Carnapping where the owner. he shall suffer the penalty for the offense which was not prosecuted. and distribution of regulated drugs (id. (15) Possession or use of prohibited drugs in certain specified amounts (id. dive. 8) (3) Destructive arson resulting in death "If as a consequence of the commission of any of the acts penalized under this Article. 17).(13) Maintenance of den.) (17) Importation of regulated drugs (Sec.). 16). promise. under R. or is subject to torture or dehumanizing acts. 15). 7659. administration. Echegaray) WHAT ARE THE MANDATORY CRIMES PUNISHABLE BY MANDATORY DEATH PENALTY UNDER RA 7659 On the other hand. (21) Possession or use of regulated drugs in specified amounts (Sec. or resort for users of regulated drugs (Sec. No. ascendant. 13) (6) Maintenance of den. delivery. rape with homicide and qualified "When by reason or on the occasion of the rape. the mandatory penalty of death shall be imposed. the victim has become insane. guardian." (Sec. 10) (4) Rape with the victim becoming insane." (Sec. 7. step-parent. a homicide is committed. if the victim of the offense is a minor. delivered or sold to a minor who is allowed to use the same in such place. when the victim is a religious or a child below seven (7) years old 5. the penalty shall be death. relative by consanguinity or affinity within the third civil degree. administration. when committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency. 4. when by reason or on the occasion of the rape. 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. when the victim is under eighteen (18) years of age and the offender is a parent. when the victim is under the custody of the police or military authorities. 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." (Sec. when the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease. Should a prohibited drug be the proximate case of the death of a person using the same in such den. or should a prohibited drug involved in any offense under this Section be the proximate cause of the death of victim thereof." (Sec. The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. parent. any of the children or other relatives within the third degree of consanguinity. 13) . 6. xxx xxx xxx When by reason or on the occasion of the rape. the maximum of the penalty [of death] shall be imposed in every case where a prohibited drug is administered.results. the maximum penalty herein provided shall be imposed on the maintainer notwithstanding the provisions of Section 20 of this Act to the contrary. when the rape is committed in full view of the husband. the maximum penalty [of death] herein provided shall be imposed. the victim has suffered permanent physical mutilation. the penalty shall be death. dive. 3. 2. or the common-law spouse of the parent or the victim. 11 ) (5) Sale. dive or resort. 15. 23) . Should a regulated drug be the proximate cause of death of a person using the same in such den.(7) Sale." (Sec. the maximum penalty [of death] herein provided shall be imposed in every case where a regulated drug is administered. the penalty to be imposed shall be in its maximum [of death] regardless of mitigating circumstances. employees or officers "Any such above government official. 15) (9) Drug offenses if convicted are government officials. advantage was taken by the offender of his public position. 9.12 and 13 of Article II and Sections 14. shall suffer the same penalty as therein provided. employees or officers including members of police agencies and armed forces "The maximum penalties [of death] provided for in Section 3." (Sec. 19) (10) Planting of dangerous drugs as evidence in drug offenses with the mandatory death penalty if convicted are government officials. 15A (1). The maximum penalty [of death] shall be imposed if the offense was committed by any person who belongs to an organized/syndicated crime group. 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. 14-A. An organized/syndicated crime group means a group of two or more persons collaborating. employee or officer who is found guilty of 'planting' any dangerous drugs punished in Section s 3. 5(1). employees or officers including members of police agencies and the armed forces. 4 (1). 16. if those found guilty or any of the same offenses are government officials. 19) (11) In all the crimes in RA. 8. 7. 14) (8) Maintenance of den. dive or resort. delivery." (Sec. 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 herein provided shall be imposed on the maintainer notwithstanding the provisions of Section 20 of this Act to the contrary. confederating or mutually helping one another for purposes of gain in the commission of any crime. 14-A. 7. 6. 14(1). 11. 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." (Sec. 4. 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. dispensation." (Sec. delivered or sold to a minor who is allowed to use the same in such place. 9 and 13 of Article II and Sections 14. dive. 8. No. 7659 in their qualified form "When in the commission of the crime. administration. the maximum penalty [of death] herein provided shall be imposed. if the victim of the offense is a minor. and 19 of Article III [of the Dangerous Drugs Act of 1972] shall be imposed. " (People v. Echegaray) WHY CAPITAL PUNISHMENT SHOULD NOT BE ABOLISHED "Capital punishment ought not to be abolished solely because it is substantially repulsive. (People v. freedom. if infinitely less repulsive than the acts which invoke it. . . It does injury to justice and charity. construing R. It causes grave damage that can mark the victim for life. (People v. and (2) other circumstances attend the commission of the crime which indubitably characterize the same as heinous in contemplation of R. necessary. No. Rape deeply wounds the respect. 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.(People v. 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. Echegaray) . No. 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. . At any rate. It is always an intrinsically evil act . Cristobal. 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. if limited factor in that maintenance of social tranquillity and ought to be retained on this ground. albeit the imposable penalty is reclusion perpetua to death. as we have held in the case of People v. Echegaray) TWO INSTANCES WHEN DEATH MAY BE IMPOSED WHEN CONSTRUED UNDER RA 7659 Thus. they must be permanently prevented from doing so. It seems very likely that capital punishment is a . Echegaray) WHY RAPE IS A HEINOUS CRIME "Rape is the forcible violation of the sexual intimacy of another person.A. To do otherwise is to indulge in the luxury of permitting a sense of false delicacy to reign over the necessity of social survival. . an outrage upon decency and dignity that hurts not only the victim but the society itself. 7659 that justify the imposition of the death.A. this court has no doubts as to the innate heinousness of the crime of rape. 7659 in pari materia with the Revised Penal Code." (People v. and physical and moral integrity to which every person has a right. 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. which took effect on December 31/93. Veneracion) REASON FOR DURATION OF RECLUSION PERPETUA OF 30 OR 40 YEARS The imputed duration of thirty (30) years for reclusion perpetua. This would preclude an anomalous situation where. unwise or morally wrong. the multiplicity of the victims slain should have been appreciated as an aggravating circumstance. modification. 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. therefore. EFFICACY OR MORALITY OF LAWS It is a well settled rule that the courts are not concerned with the wisdom. if not in disharmony with the Constitution. (People v. robbery with one killing would be treated in the same way that robbery with multiple killings would be. efficacy or morality of laws. its amendment. (People v. That question falls exclusively within the province of the Legislature which enacts them and the Chief Executive who approves or vetoes them. as long as said law is in force. PROVISION OF ARTICLE 294 OF THE REVISED PENAL CODE AS AMENDED BY REPUBLIC ACT 7659 CANNOT BE . RA 7659. 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. NUMBER OF PERSONS KILLED DOES NOT ALTER CHARACTERIZATION OF THE OFFENSE BUT CAN BE APPRECIATED AS AGGRAVATING CIRCUMSTANCE. and may recommend to the authority or department concerned. still. Timple) ROBBERY WITH HOMICIDE AND ROBBERY WITH RAPE. (People V. 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. Lucas) ROBBERY WITH HOMICIDE. The court.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. 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. from the standpoint of the gravity of the offense. 12/9/97) COURTS SHOULD NOT BE CONCERNED ABOUT WISDOM. While the number of persons killed does not alter the characterization of the offense as robbery with homicide. amended the provisions of RA 6425. 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. or repeal. therefore. they must apply it and give it effect as decreed by the law- making body. (PP v Carreon. to apply them. The only function of the judiciary is to interpret the laws and. the Congress hereafter provides for it. however. Under Article 294 (1) of the Revised Penal Code. By Republic Act No. cannot be applied retroactively in this case. for compelling reasons involving heinous crimes. (Emphasis supplied) Article 294 of the Revised Penal Code. that the restraint is not made under authority of a law or in the exercise of any lawful right. 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.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. 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. the crime of homicide shall have been committed. CASE AT BAR. 1992. 19. unless. The penalty of reclusion perpetua to death. including robbery with homicide and robbery with rape. Hence. Timple) A PERSON MAY BE CONVICTED OF GRAVE COERCION ALTHOUGH THE CHARGE IS KIDNAPPING The Information. the elements of which were sufficiently proved by the prosecution. the attended aggravating circumstances in this case had no impact upon the determination of the proper penalty by the trial court. (People -vs. By the same statute. dated March 24. control over the will of the offended party. 7659. robbery with homicide is punishable by reclusion perpetua to death. filed against Astorga contains sufficient allegations constituting grave coercion. That the prevention or compulsion is effected by violence. of the first paragraph of Section 19. (1) Excessive fines shall not be imposed. 7659 (effective 31 December 1993). which provides that: "Sec. a conviction for said crime is appropriate under Section 4. or when the robbery shall have been accompanied by rape or intentional mutilation or arson. b. that the person who restrains the will and liberty of another has no right to do so or. as amended by R.A. in other words. 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. be it right or wrong. . Neither shall death penalty be imposed. and c. or compelled to do something against his or her will. Article III of the 1987 Constitution. . Rule 120 of the 1988 Rules on Criminal Procedure.APPLIED RETROACTIVELY. however. (People v. consequently. Hence. either by material force or such a display of it as would produce intimidation and. In view. . when by reason or on occasion of the robbery. degrading or inhuman punishment inflicted. . Congress re-imposed the death penalty for certain heinous crimes. No. nor cruel. with the resulting quotient. as the bases for determining the appropriate component penalty. (People -vs.Astorga) ACTUAL DETENTION OR LOCKING UP. hence.e. 1997) DANGEROUS DRUGS ACT OF 1972 (R. 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. and it appearing that the quantity of the shabu recovered from the accused in this case is only 0. 7659 has unqualifiedly adopted the penalties under the Revised Penal Code with their technical signification and effects. as .A. the appellant may be convicted only of grave coercion. NO. 6425. No. With the foregoing as our touchstones. 7659 which are favorable to the accused shall be given retroactive effect pursuant to Article 22 of the Revised Penal Code. and double or treble the same.A.A. SECTIONS 15 AND 20 THEREOF AS AMENDED BY R. 6425. probably through oversight in the drafting. the prosecution merely proved that appellant forcibly dragged the victim toward a place only he knew. GGR 110097. In People vs. and not reclusion perpetua. decided on 29 July 1994. the accused cannot be held liable for kidnapping. pursuant to Section 1 of the Indeterminate Sentence Law. each of the component penalties thereof — prision correccional.R. (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. this Court ruled as follows: (1) Provisions of R. 7659. (5) In appropriate instances. the penalty to be imposed shall range from prision correccional to reclusion temporal. i. that in no case should such graduation of penalties reduce the imposable penalty lower than prision correccional. December 22.0958 gram. No.A. If the evidence does not adequately prove this element. however. provided. (G.(People -vs.Astorga. 6425). prision mayor. 93028). In the present case. then the crimes under the Dangerous Drugs Act shall now be considered as crimes punished by the Revised Penal Code. No.A. No. (3) Considering that the aforesaid penalty of prision correccional to reclusion temporal shall depend upon the quantity of the dangerous drugs involved. (2) Where the quantity of the dangerous drug involved is less than the quantities stated in the first paragraph of Section 20 of R. 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.A. AN ESSENTIAL ELEMENT OF KIDNAPPING Actual detention or "locking up" is the primary element of kidnapping. The reason is that there is an overlapping error. NO. There being no actual detention or confinement. the Indeterminate Sentence Law shall be applied and considering that R. the imposable penalty under the second paragraph of Section 20 of R. Martin Simon y Sunga. in the provisions on the penalty of reclusion perpetua as shown by its dual imposition.. 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. No. but whether the aggressors took advantage of their combined strength in order to consummate the offense. Thus. Accused.further amended by Section 17 of R. 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. 139599. RICARDO DELA CRUZ alias Pawid. Obtaining the consent of the bondsman was. AFISCO Insurance Corporation. Respondents. WHEN THEFT OF MOTOR VEHICLE IS QUALIFIED THEFT. four or more assailants of one victim. 1987 for the cancellation of petitioners' bail bond for the latter's failure to renew the same upon its expiration. such amount carries the corresponding penalty of prision mayor in its minimum and medium periods to be imposed in the maximum period. 7659. 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. G. It is therefore necessary to show that the attackers cooperated in such a way as to secure . Danilo Dela Cruz and John Doe alias Henry Balintawak and Orlando Padilla y Mendoza. that the aggravating circumstance of abuse of superior strength attended the killing.R. In simple theft. what should be considered is not that there were three. No. irrespective of whether the case was originally filed in or appealed to it. No. and thus even during the period of appeal. (PP -vs. consent of the bondsman is necessary. filed a motion in the trial court on January 06. From the record. until the promulgation of the judgment of the Regional Trial Court. 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. it appears that the bondsman. 23. Moreover. we accept this amount for the purpose of determining the imposable penalty. 23. Manuel dela Cruz alias Pawid. for the accused to continue his provisional liberty on the same bail bond during the period to appeal.Honorable COURT OF APPEALS (Fourth Division and People of the Philippines. No. Considering that the penalty for qualified theft is two degrees higher than that provided for simple theft.Ricardo Dela Cruz alias Pawid. 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. We find. G. unless sooner cancelled. Petitioners. foreclosed. 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. Applying the Indeterminate Sentence Law. the penalty of prision mayor in its minimum and medium periods must be raised by two degrees. Since this value remains undisputed.00. "To appreciate abuse of superior strength as an aggravating circumstance. 125936 Feb.A. Accused-Appellant. (STRAY DECISION) In this case. should be prision correccional.000." This amendment. 2000) WHEN ABUSE OF SUPERIOR STRENGTH IS PRESENT. ( Aniceto Sabbun Maguddatu and Laureana Sabbun Maguddatu. however. the stolen property is a Yamaha RS motorcycle bearing plate no. Feb. CZ-2932 with sidecar valued at P30. -vs.R. thus. under the present rule. R. not having been alleged in the Information. Feb. 28. (PP -vs. 17. PABLO LUMACANG and DOMINGO LUMACANG. bent on finishing him off.ROGELIO GALAM. G. at this point that inasmuch as treachery has been appreciated as a qualifying circumstance. 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. Accused-Appellants.R. 132329. and (3) sufficient lapse of time between the determination and the execution to allow the offender to reflect on the consequences of his act. however. As earlier mentioned. 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. G. Accused- Appellants. The wounded victim had not even so much as a stick or a stone to parry off their blows. Accused-Appellant. (PP -vs. abuse of superior strength can only be considered as a generic aggravating circumstance.R. 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.PEDRO LUMACANG. 2000) ELEMENTS OF EVIDENT PREMEDITATION (1) The time when the offender determined to commit the crime. abuse of superior strength should not have been considered separately inasmuch as it is absorbed in treachery. Feb. No. 2000) WHEN NIGHTTIME IS AGGRAVATING Nighttime as an aggravating circumstance must have specially been sought to consummate the crime. Feb. facilitate its success or prevent recognition of the felon. 15. No. he had absolutely no means of defending himself from the three brothers who were armed with hunting knives. Although he was able to run a short distance. 113940.CIELITO BULURAN Y RAMIREZ and LEONARDO VALENZUELA Y CASTILLO. (PP -vs. the deceased was already rendered completely helpless and defenseless when he was stabbed by Pedro Lumacang. (PP -vs. No. G. 114740.THADEOS ENGUITO Defendant-Appellant. 1.CONSTANCIO MERINO and ARNULFO SIERVO.advantage of their superiority in strength.R. Feb. 2000) . (PP -vs. Dec. 128812. 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. No. 120283. 15." In this case. G. (2) an act manifestly indicating that the offender had clung to his determination.R. It should be noted. Accused-Appellants. However. G. 126097. at the time.R. (d) alters the legal rules of evidence. Accordingly. 7659. 121630. in order for the death penalty to be imposable. (PP -vs. 8294) . and (f) deprives person accused of a crime of some lawful protection to which he has become entitled. 2000) DATE OF EFFECTIVITY OF RA 7659. Isabel Ruales was not prepared for such a violent attack. 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. including rape. 1999) EVEN FRONTAL ATTACK WOULD AMOUNT TO TREACHERY Moreover. giving the victim no opportunity to repel it or offer any defense of his person. No. would go against the constitutional prohibition on ex post facto laws. 8. For this reason. 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. such as the protection of a former conviction or acquittal. or a proclamation of amnesty. Accused-Appellant. It cannot be applied retroactively because. (PP -vs. Thus. G. (c) changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed. to do so. and authorizes conviction upon less or different testimony than the law required at the time of the commission of the offense. especially considering that. 3.CHARITO ISUG MAGBANUA. G. G.R. He who goes to another's house to slander him. Thus. which were committed after its effectivity. 128888. or makes it greater than it was. ETC. this does not negate treachery since the essence of treachery is the suddenness and unexpectedness of the attack. when committed.R. No. (b) aggravate a crime. 1999) ILLEGAL POSSESSION OF FIREARMS (REPUBLIC ACT NO. 7659 took effect on 31 December 1993. Milyn Ruales also testified that the knife used by accused was hidden from view. we hold that the trial court correctly appreciated the qualifying circumstance of treachery. (e) assuming to regulate civil rights and remedies only. could not have possibly warded off the blow or run away from her assailant.CORNELIA SUELTO alias "ELY" alias "ROGELIA SUELTO". in effect imposes penalty or deprivation of a right for something which when done was lawful. Although Milyn Ruales described the attack having been frontal. Republic Act No. 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. and punishes such an act. hurt him or do him wrong. Dec.WHY DWELLING IS AGGRAVATING "The home is a sort of sacred place for its owner." (PP -vs- JOSE & NESTOR BiñAS. Dec. the said law only applies to crimes defined therein. 8. No. is more guilty than he who offends him elsewhere. Feb. or attempted coup d'etat.000) shall be imposed upon any person who shall . That no other crime was committed by the person arrested. such use of an unlicensed firearm shall be considered as an aggravating circumstance.44. who shall willfully or knowingly allow any of the firearms owned by such firm. Sale.32 and other firearm of similar firepower. tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided. . sedition. part of firearm. as amended.38 caliber and 9 millimeter such as caliber . Section 3 of Presidential Decree No." SECTION 2. Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. or machinery. 1866. or possess any low powered firearm.000) shall be imposed upon any person who shall unlawfully manufacture. 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. director or other responsible officer of any public or private firm. president. or in connection with the crime of rebellion or insurrection. "The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor. Acquisition. Sale. "If the violation of this Section is in furtherance of or incident to.357 and caliber . corporation or entity. . 1866. manager. ammunition. or insurrection. .45 and also lesser calibered firearms but considered powerful such as caliber . — The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15. or attempted coup d'etat. is hereby further amended to read as follows: "SECTION 3.41. is hereby further amended to read as follows: "SECTION 1.000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than . — The penalty of prision mayor in its maximum period to reclusion temporal and a fine of not less than Fifty thousand pesos (P50.SECTION 1. Unlawful Manufacture. company. "The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30.22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided. That no other crime was committed.40. Unlawful Manufacture. such violation shall be absorbed as an element of the crime of rebellion.380 or . acquire. company. Acquisition. Section 1 Presidential Decree No. such as rimfire handgun. deal in. Disposition or Possession of Explosives. as amended. . sedition. "If homicide or murder is committed with the use of an unlicensed firearm. however. dispose. "The same penalty shall be imposed upon the owner. 1866. who shall willfully or knowingly allow any of the explosives owned by such firm. and other explosives. Repacking or Altering the Composition of Lawfully Manufactured Explosives. Section 5 of Presidential Decree No." SECTION 5. is hereby further amended to read as follows: "SECTION 6. 1866. "If the violation of this Section is in furtherance of. RULE ON ILLEGAL POSSESSION OF FIREARMS BEFORE AN ACCUSED MAYBE CONVICTED . "The same penalty shall be imposed upon the owner. which results in the death of any person or persons. including but not limited to 'pillbox. rifle grenade(s). Tampering of Firearm's Serial Number. deface or erase the serial number of any firearm. or in connection with the crime of rebellion." SECTION 4. or 2) unauthorized use of licensed firearm in the commission of the crime. insurrection. corporation or entity.unlawfully manufacture.' or other incendiary devices capable of producing destructive effect on contiguous objects or causing injury or death to any person. corporation or entity. to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs. president. director or other responsible officer of any public or private firm. manager. detonation agents or incendiary devices. acquire. detonation agents or incendiary devices shall be considered as an aggravating circumstance. insurrection. change. sedition or attempted coup d'etat. "When a person commits any of the crimes defined in the Revised Penal Code or special laws with the use of the aforementioned explosives. such violation shall be absorbed as an element of the crimes of rebellion. is hereby further amended to read as follows: "SECTION 5. company." SECTION 3. assemble. Coverage of the Term Unlicensed Firearm. the use of such explosives. deal in. — The penalty of prision correccional shall be imposed upon any person who shall unlawfully tamper. sedition or attempted coup d'etat. Section 6 of Presidential Decree No. alter or modify the composition of any lawfully manufactured explosives. or incident to. — The penalty of prision correccional shall be imposed upon any person who shall unlawfully repack. as amended.' 'molotov cocktail bombs. dispose or possess hand grenade(s). as amended. company.' 'fire bombs. — The term unlicensed firearm shall include: 1) firearms with expired license. 325 scra 613) The essence of the crime of illegal possession is the possession. 179) To support a conviction. and b. viz: (a) the existence of the subject firearm or explosive which may be proved by the presentation. 324 scra 335. 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.D. (People v. 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. and no malice or intent to commit a crime need be proved. as amended. Bansil. whether actual or constructive. of the subject firearm. however.D. Khor. 344) Illegal possession of firearm is a crime punished by special law. (People v. ammunition or explosive as possession by itself is not prohibited by law. 1866 is primarily the accused's lack of license or permit to carry or possess the firearm. 05/31/01) We stress that the essence of the crime penalized under P. (People v. (People v. After possession is established by the prosecution. the fact that the accsused who owned or possessed it does not have the license or permit to possess the same. a malum prohibitum. of the subject firearm or explosive or by the testimony of witnesses who saw accused in possession of the same. Castillo. (People v. the prosecution has the burden of proving the elements thereof. viz: a. 1866." (Del Rosario v. Stated otherwise. People. 304 scra 384) Possession of any firearm becomes unlawful only if the necessary permit or license therefor is not first obtained. two (2) essential elements must be indubitably established. Cortez.In crimes involving illegal possession of firearm. without which there can be no conviction for illegal possession. the existence of the subject firearm. 101 Phil. Lubo. it would only be a matter of course to determine whether the accused has a license to possess the firearm. 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 . 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. 307 scra 295) "To convict an accused for illegal possession of firearms and explosives under P. Where murder or homicide was committed.1 meant to punish homicide or murder with death if either crime is committed with the use of an unlicensed firearm. (Pp. 1998) ILLEGAL POSSESSION OF FIREARM ONLY SPECIAL AGGRAVATING CIRCUMSTANCE IN CRIMES OF HOMICIDE. ETC. 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. 1998) NEW PENALTY FOR LOW POWERED FIREARM IN ILLEGAL POSSESSION OF FIREARMS Petitioner. 8294. July 22. Tac-an and Pp. to consider such use merely as a qualifying circumstance and not as an offense. V. the separate penalty for illegal possession shall no longer be meted out since it becomes merely a special aggravating circumstance. 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. Thus.000. Under an information charging homicide or murder. the unauthorized use of a weapon which has been duly licensed in the name of its owner/possessor may still aggravate the resultant crime. This statutory amendment may have been an offshoot of our remarks in Pp. Molina. Gr 115835-36. should now apply. 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). although appellants may have been issued their respective licenses to possess firearms. . Under this new law.5 of R. The essential point is that the unlicensed character or condition of the instrument used in destroying human life or committing some other crime. V. Quijada : “Neither is the 2nd paragraph of Sec. of course.A. The enactment and approval on 06 Jun 1997 of RA 8294. be enacted making use of an unlicensed firearm as a qualifying circumstance. is not included in the inventory of aggravating circumstances set out in Article 14 of the Revised Penal Code. The scope of the term has been expanded in Sec. i.. being favorable to him. V. A law may. is nonetheless not entirely bereft of relief. July 22. 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. 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. Molina.00. In the case at bar.authority.e. GR 115835-36. fortunately for him.” (People v. up to anywhere from four years.380 or . "If the violation of this Section is in furtherance of or incident to. change. tool or instrument used or intended to be used in the manufacture of any firearm or ammunition” 2. company. et al. the present penalty that may be imposed is anywhere from two years. . who shall willfully or knowingly allow any of the firearms owned by such firm. or machinery.32 and other firearm of similar firepower.” 3.Applying the Indeterminate Sentence Law. corporation or entity. 7. ammunition. or in connection with the crime of rebellion or insurrection. as maximum. or attempted coup d'etat. “Any person who shall unlawfully tamper. "The same penalty shall be imposed upon the owner. The court in addition. deal in. such violation shall be absorbed as an element of the crime of rebellion.” 4. manager. 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. such use of an unlicensed firearm shall be considered as an aggravating circumstance. or possess any low powered firearm. MALUM PROHIBITUM The offense of illegal possession of firearm is a malum prohibitum punished by a special law. sedition. president. dispose. as minimum.. alter or modify the composition of any lawfully manufactured explosives”. “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. Oct 8/97) ACTS PUNISHABLE: 1. in which case good faith and absence of criminal intent are not valid defenses. part of firearm. such as rimfire handgun.” 5. two moths and one day to six years of prision correccional in its maximum period. deface or erase the serial number of any firearm”. acquire. “upon any person who shall unlawfully manufacture. 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. director or other responsible officer of any public or private firm. four months and one day to four years and two months of prision correccional in its medium period. or insurrection. sedition. “Any person who shall unlawfully repack.. company. (People v De . "If homicide or murder is committed with the use of an unlicensed firearm. or attempted coup d'etat. (Mario Rabaja v CA. It is these acts relative to firearms. dispose or possess. Verches.A. 2001) holds that the “gravamen” for the offense of violation of P. “The crime is immediately consummated upon mere possession of a firearm devoid of legal authority. That one was in possession of an unlicensed firearms merely for one’s protection without intending harm on anybody is a fruitless defense. 237 SCRA 299 that there was no evidence of “animus possidendi”.3. 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. iv. is a malum prohibitum. (People v. 1.D. supra. G. discovery by police.1866 is the possession of firearm without the necessary permit and/or license.) People v. a good case for animus possidendi is made. 8294? The results would be patently absurd. 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. and in view of the special meaning that “possession” has in criminal law. Essential to the legal concept of “possession” in illegal possession cases is animus possidendio. 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. This is clear from the first two “whereas” clause of P. (People v.Gracia. de Guzman. b. ii. The obvious underlying principle is the undesirability of the proliferation of firearms and their free traffic and possession. It then appears to be the more reasonable position that where a person is apprehended with . Macasling. Whatever the purpose of the possession may be is consistently immaterial. de la Rosa. Sayang. 1866 as amended by R. HOWEVER. 110 Phil 565). 1. de la Rosa. a.) Animus Possidendi is determined by recourse to overt acts prior to or simultaneous with possession and other surrounding circumstances. 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. 1. h. Intention to possess is material. For purpose of simplicity we will confine our analysis to “possession”. although what we will discuss hereunder applies to manufacture. How is animus possidendi established? There must be proved either by direct or circumstantial evidence the “intent” of the accused to possess. acquire. deal in. 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. People v. etc. dealing in.D. 33 SCRA 174) c. 284 SCRA 158 that “mere possession without criminal intent is sufficient on which to render a judgment of conviction”. it is not correct to say without qualification that “intent” is immaterial. Manufacture.D.R.1. or to keep the firearm. possession must be established beyond reasonable doubt. iii. Intent as to possession is immaterial. 1866.2. (People v. 7/6/94) 1. 117952-53 (February 14.)Animus possidendi may also be inferred from the fact that an unlicensed firearms was under the apparent control and power of the accussed. de la Rosa) when it is established that the accused purchased the weapon in question. rather than prosecuted. It is then clear that illegal possession. the Supre Court held in People v. It is the clear doctrine of such cases as People v. acquiring or disposing as well. 30 was high- powered because it was capable of ejecting more than one bullet in one squeeze. animus possidendi will be disputably presumed. People. Incontrovertible testimonial evidence may successfully established the existence of the firearm. the existence of the firearm. 33 SCRA 522). 1998]). 132878 (January 18. If he accepts to do this favor. if a police officer leaves with a cousin for safekeeping his firearm. The case is obviously different.) To prove the existence of the firearm. 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 . the absence of a license or a permit to possess.4 What the prosecution must prove for it to succeed under the law is two-fold: first. Court of Appeals. and prision mayor in its maximum periods for high- powered firearms.R.) 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.) A firearm is unlicensed when a certification from the “Firearms and Explosives Unit” attests that no license has been issued.it is obviously a case of not only poor but miserable draftsmanship! 2. 281 SCRA 287). Nunez. 1999) the Supreme Court ruled that a U. Thus in People v.S.e. A fortiori. 2001) holds that a person may be convicted of simple illegal possession if the illegal possession is proved and the . 110 Phil 565) 2. G. on whether it is high-powered or low-powered In People v. Narvasa. Sayong. To convict. there is no animus possidendi of an unlicensed firearm. (People v. the penalties provided for in the amended Section 1 shall be imposed: prision correccional in its maximum period for low-powered firearms. The distinguishing features of particularly firearms. (People v. 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. (People v. 132878 [November 16.R. Gutierrez. Provided no other crime is committed.an unlicensed weapon. the court needs proof beyond reasonable doubt of animus possidendi. G. i.R. The cousin knows fully well that he has no permit or authority to keep the firearm. however. The present law makes penalties depend on the caliberof the firearm. It is very well possible that the accused effectively conceals the weapon before his apprehension. The accused may controvert the presumption of animus possidendi. d. G. c. caliber can be established by teetimony establishing the manner in which the firearm ejected bullets. Rugay. 112092 (March 1.1 It is clear that where there is no other offense except the unlawful possession of a firearm. 1. If it turns out that the firearm is not licensed. then logically. If it is the criterion. that may be recited by keen observer sworn in a s witness my identify the firearm as well as it caliber. b. This can be established by a judicious combination of the testimonial evidence of observers abd experts. it is not absolutely necessary that the object evidence be presented. the use of a licensed firearm by one not licensed or permitted to use it would still be illegal possession.) An interesting question arises. second. furthermore. (Cuenco v. carbine M1 caliber . he is indictable. 291 SCRA 692) a. Senator Revilla. neither should we. 2. G. or in connection with the crimes of rebellion. such use shall constitute an “aggravating circumstances”. 8294 was favorable to the accused in that it spared him from separate prosecution for illegal possession. it should have expressly said so. rebellion. insurrection.3 When the violation of the law penalizing unlicensed weapon is “in furtherance of or incident to. 8294. the use of the unlicensed weapon must be alleged in the information. Section 9 of the Revised Rules of Criminal Procedure will apply: As an aggravating circumstances. in its simple form. insurrection. however. 8294 was initiated by Senator Ramon Revilla as a favor to his friend Robin Padilla who was then serving sentence for illegal possession. no matter how trivial. 2. 131856-57 (July 1. for when the use of an unlicensed weapon attends the commission of a crime. homicide. People v.A. If the intention of the law in the second paragraph were to refer only to homicide and murder. 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. (R. Rule 110. 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. Walpandladjaalam. where the law does not distinguish. People v. insurrection. Consistent with this is the disposition by the Supreme court decreed: “Accordingly.R. as it is in the penalties it impose. where the accused commits a crime other than those enumerated with the use of an unlicensed weapon. Verily. sedition or attempted coup d’etat”.A. the amended law came into force. 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. as it did in the third paragraph. G. 2. The court then held that insofar as R. however. 2001) with the Chief Justice himself as ponente illustrates the complication the law has introduced.2.R. the case of illegal possession recedes into judicial irrelevance. 117033 (February 15. the accused had been charged with two offenses: robbery with homicide and illegal possession of firearms. provided that “no other crime was committed by the person arrested’. rebellion.4 What happens when an unlicensed weapon is used in the commission of other offenses other that homicide. In this case. Section 1).5 Clearly the law leads to absurd results. as it increased the penalty for robbery with homicide. It is well known that R. no separate charge for such use will be brought against him. Avecilla. 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. Insofar. G. is committed any of the crimes of murder. 2001) teaches that “the crime of illegal possession of firearms.frustrated murder and murder case – involving the use of the illegal possession – has not been sufficiently proved.R. During the pendency of the case. sedition or attempted coup d’etat” then the violation is absorbed in the main offense. 1361149-51 ( September 19. 2. Montinola. It is also clear that where either homicide or murder is committed with the use of an unlicensed firearm. the charge for illegal possession was dropped.” In brief. 8294.A. One moral lesson can be learned: Laws passed as favor to one’s friend is a poor laws! . sedition or attempted coup d’ etata? People v. It was therefore meant to be more benevolent. murder. the aggravating circumstances of the use of unlicensed weapon could not be appreciated. INTENT TO POSSESS. et al. in the meantime. Republic Act 8294 took effect. (People vs. at the time of the commission of the offense. However. Since the law uses the word Homicide or Murder. Chief Justice Hilario Davide. While mere possession without criminal intent is sufficient to convict a person for illegal possession of firearms. under such a factual milieu. Jr. (People -vs. Lack of evidence is an essential element of the crime and that the same must be alleged in the Information and duly proved. 222 SCRA 557) If an unlicensed firearm is used to commit a crime other than homicide or murder. as amended. the accused should be convicted only of Murder.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. (People -vs. in his concurring opinion. it must still be shows that there was animus possidendi or an intent to possess on the part of the accused. 76728. declared that. such a direct assault with attempted homicide. be imposed.Reynaldo Cruz. (People -vs. possession of an unlicensed firearm is not aggravating in Attempted Homicide. 136149-51. and if found without any license therefor. OR ANIMUS POSSIDENDI IS ESSENTIAL A distinction should be made between criminal intent and intent to possess. GR No. One may be convicted of possession of an unlicensed firearm even if he is not the owner thereof.. 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. the offender is liable for violation of PD 1866. the use of an unlicensed firearm is neither an aggravating circumstances nor a separate offense.Filemon Ramos.Macasling. 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 one’s control and management. GR No. 237 SCRA 299) Ownership of the gun is immaterial or irrelevant in violation of PD 1866. 1988) Even if the gun is "paltik. August 3. September 19. the death penalty cannot as yet.Walpan Ladjaamlam. the charge of ." there is a need to secure license for the gun. 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. 2000) Where the accused was charged of Murder and violation of PD 1866 and that. the latter failed to discharge its burden. 126253. Hence. et al.Victor Macoy. (People -vs. 291 SCRA 692) Mere possession without criminal intent is sufficient on which to render a judgment of conviction for violation of PD 1866.. 2000) Where the prosecution failed to adduce the gun in evidence coupled with the fact that per Certification of the FEU. Good faith is not a defense.. et al. " no available information regarding the license for the gun and the inconsistency in the evidence of the prosecution. he should be ordered to undergo subsidiary imprisonment in case of insolvency. et al. there must be animus possedendi or intent to possess without any license or permit. as amended. supra) Even if a paltik is a homemade gun and thus illegally manufactured nevertheless. et al.Ricolito Rugay. (People -vs. as amended. stealing a firearm to render the owner defenseless is not a crime under the law.00. 291 SCRA 692) Where the accused is convicted of violation of Republic Act 8294 and meted a penalty less than six (6) years. (People -vs. and Articles 13 and 14.Felimon Ramos.Martin Simon. supra) Possession includes actual physical possession and constructive possession. GR No. The animus can be determined from the overt acts of the accused prior to or coetaneous with and other surrounding circumstances of such possession. 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. casual or harmless possession of firearm is not punishable. (People -vs.. 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. Even if a person is licensed to possess a firearms but brings out firearm outside of his residence without permit therefor. as . Hence. et al. et al. Neither is lack of criminal intent. August 16." 234 SCRA 555.. (People -vs. as amended and Rep[ublic Act 6425. (b) the fact that the accused who owned or possessed the firearm does not have the corresponding license or permit to possess the same. (idem.Rodolfo Dela Rosa. and a fine of P15. 280 SCRA 290) In the light of "People -vs.000. the Prosecution is burdened to prove that the accused has no license for the gun.Rodolfo Dela Rosa.. (People -vs.Court of Appealss.. in the process.Ricolito Rugay. (Mario Rabaja -vs. he is guilty of violation of the last paragraph of Section 1 of PD 1866. there is no animus possedendi. incidental. where the accused found a gun and was on his way to deliver the gun to the police authority and was arrested. he should be meted the death penalty under Republic Act 8294. in relation to Article 63. However.violation of PD 1866 should continue and if the accused is found guilty. 284 SCRA 158) Temporary. no. 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. et al.Meriato Molina. the latter is liable for violation of PD 1866. 1998) NOTE: Under Republic Act 8294. the death penalty may now be imposed if the accused is convicted of . People -vs. 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. G.People.R. 115835.. and People -vs. et al. 1998. (People -vs. a security agency. 583) A secured a loan from B and pledged his unlicensed firearm as security for the loan. 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- Jesus Deunida. the accused must prove absence of animus possidendi. To exculpate himself. A Mission Order can only be issued to one licensed to possess a firearm. et al.Court of Appeals. 1998) The Decision of the Supreme Court in People -vs. A Mission Order cannot take the place of a license.. (Pedrito Pastrano -vs.Daniel Quijada 259 SCRA 191 had been overtaken by Republic Act 8294.Perlito Soyang.. the penalty depends upon the caliber of the gun.Felicisimo Narvasa. as amended. (People -vs. 182 SCRA 601. 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. GR No. et al. 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. Even if the gun is licensed to one and lends it to another. the security guard is not criminally liable.Cornelio Melgas. A promised to pay his loan and retrieve the firearm as soon as he had money. Under the amendment. B found in possession of the unlicensed firearm. 128618 November 18. Suppose there is no testimony as to the caliber of the gun? Where a security guard was given by his employer.Barros and People -vs. A license to possess a firearm and a permit to carry a licensed firearm outside of his residence is not transferable. G. (People -vs. the accused is guilty of possession of unlicensed firearm. The security guard has the right to assume that the security agency secured the license.Court of Appeals. (Pedrito Pastrano -vs. 100 Phil. 565. November 16.amended. may the former be liable for violation of PD 1866.. July 22. as amended? Yes. a firearm. 298) If a licensed firearm if used to commit Murder or Homicide.R. 128618. 281 SCRA 287) If the accused borrowed a gun from another who is licensed to possess firearm. (Ernesto Cuenca -vs. No. 110 Phil. (People -vs.Narvasa.Paterno Tac-an. 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. is used in its generic term and. as amended. June 9." 292 SCRA 742. If the accused used a sumpak to kill the victim.Eduardo Gutierrez.es. January 18. GR No.3-0 is a high-powered gun because it is capable of emitting two or three bullets in one squeeze. G. .1999) A United States carbine M1. GR No. 1998) The Decision of the Supreme Court in People versus Rex Bergante. 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. (People -vs. by the Trial Court but that during the pendency of the appeal. et. (People -vs. the prosecution must prove that he had no license or permit to possess the sumpak. 1999) Compare "People -vs. 109270-80. (People -vs. 120369. 132878.. Possession of an unlicensed firearm and used in killing is a special aggravating circumstance. al. conviction under the law is proper. Republic Act 8294 took effect.R. Our Supreme Court affirmed the conviction of the Accused of two (2) crime of Homicide and violation of PD 1866. Republic Act 8294 took effect. et al. and applied the penalty for the crimes under the amendment. 121462-63.. with the Supreme Court. includes Parricide (People versus Octavio Mendoza.Cipriano de Vera. Murder. If the accused is charged of Murder and violation of PD 1866 and during the trial. Neither should the possession of an unlicensed firearm be considered as an aggravating circumstance as it will be less favorable to the accused." 290 SCRA 627 where the accused was convicted of Murder and violation of PD 1866 and during the pendency of the appeal. November 18. No. GR No. our Supreme Court En Banc declared that where the accused was convicted of said crio. the accused should only be convicted of Murder with the use of an unlicensed firearm as mere a special aggravating circumstance. Republic Act 8294 took effect. (People -vs. 128618. supra) Republic Act 8294 took effect on July 6. September 1999) It is not necessary that the firearm be produced and offered in evidence for Republic Act 8294 to apply.Felicisimo Narvasa. In "People -vs. caliber . GR No.Wilfredo Filoteo.Felicisimo Narvasa. hence.Murder with the use of licensed or unlicensed firearms.Veriato Molina. as amended. 1997. the accused cannot be convicted of violation of PD 1866. under Republic Act 8294. the use of an unlicensed firearm in the commission of homicide or murder shall not be treated as a separate offense. as only a single crime (homicide or murder with the aggravating circumstance of illegal possession of firearm) is committed under the law. SUCH ADMISSION IS NOT SUFFICIENT PROOF OF ILLEGAL POSSESSION OF FIREARM Hence. which codified the laws on illegal possession of firearms. animus possidendi may be contradicted if a person in possession of an unlicensed firearm does not assert a right thereto. incidental or transient. in the case at bar.February 27. although the crime under PD 1866. Each factual milieu must be considered. 1998. 1997 by Republic Act 8264. Animus possidendi may be inferred from the fact that an unlicensed firearm is under the apparent control and power of the accused. and considering that the provisions of the amendatory law are favorable to herein appellant. 1866. However. we expounded on this doctrine. In People vs. although the appellant himself admitted that he had no license for the gun recovered from his possession.D. 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. Homicide and Illegal Possession of Firearms. 233 SCRA 174). Aside from lowering the penalty for said crime. only one penalty shall be imposed on the accused. aggravated by homicide as ruled by the trial court. and punish him separately for each crime. Prescinding therefrom. as it is the former offense which aggravates the crime of homicide under the amendatory law. Possession under the law may either be actual physical possession or constructive possession. i. Based on the facts of the case. aggravated by illegal possession of firearm. but merely as a special aggravating circumstance. however.A. This amendment has two (2) implications: first. 8294 also provided that if homicide or murder is committed with the use of an unlicensed firearm. an admission is the mere acknowledgement of a fact or of .Rolando Verches. EVEN IF ACCUSED ADMITTED THAT HE HAS NO LICENSE. However. the law does not provide for a fixed period of time for one to be deemed in "possession" of an unlicensed firearm. the correct denomination for the crime. however. or intent to possess. IMPLICATION BY RA 8294 ON PD 1866 (ILLEGAL POSSESSION OF FIREARMS) P. second. (People -vs. the crime for which the appellant may be charged is homicide. It was thus error for the trial court to convict the appellant of two (2) separate offenses.. was amended on June 6. R. is malum prohibitum. the same is not punishable under PD 1866. as amended. thus: "x x x by its very nature. and not illegal possession of firearm. the new law should be retroactively applied in the case at bar.e. there must be animus possidendi. If the possession of an unlicensed gun is merely temporary. Solayao. such use shall be considered as a special aggravating circumstance. that the use of an unlicensed firearm to commit murder is only a generic aggravating circumstance is no longer true. this Court can infer that an admission in criminal cases is insufficient to prove beyond doubt the commission of the crime charged. The failure of the prosecution to adduce this fact is fatal to its cause. but not sufficient of itself to establish his guilt. No. 1866 as amended. G.e. the lack of license or permit of appellant Cortez to possess the hand grenade. As such.circumstances from which guilt may be inferred.. insufficient to authorize conviction. 131592-93. said admission is extrajudicial in nature. 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.R." In other words. ET AL. Nos. said statement by accused-appellant does not prove beyond reasonable doubt the second element of illegal possession of firearm. 131619-20. Molina and reiterated in the recent case of . Feb. it is a statement by defendant of fact or facts pertinent to issues pending. 2000) ELEMENTS OF ILLEGAL POSSESSION OF FIREARMS To convict an accused for illegal possession of firearms and explosive under P. 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.JULIAN CASTILLO Y LUMAYRO. made by a party in the course of the trial or other proceedings in the same case does not require proof. the records bear that PO2 Santos did not submit the grenade to the PNP Firearms and Explosives Unit for verification. 2000) UNDER R. to prove guilt. ammunition or explosive as possession by itself is not prohibited by law. in connection with proof of other facts or circumstances. From the above principles. Although the hand grenade seized by PO2 Santos from appellant was presented in court. verbal or written. In the case at bar. 1. Feb.D. 1866 is primarily the accused's lack of license or permit to carry or possess the firearm. but which is. MAY EXPLOSIVES BE GIVEN A PERMIT OR LICENSE? In the case of an explosive. "Moreover. 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.BERNIE CORTEZ Y NATANIO. of itself.D.A." (emphasis supplied) (PP -vs. No. (PP -vs.R. 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. We stress that the essence of the crime penalized under P. 15. it was held in the case of People vs. the prosecution failed to prove the second element of the crime. a permit or license to possess it is usually granted to mining corporations. two (2) essential elements must be indubitably established. 1866.D. "Not being a judicial admission. tending to incriminate the speaker. It does not even establish a prima facie case.. G. it does not fall under Section 4 of Rule 129 of the Revised Rules of Court which states: An admission. military personnel and other legitimate users. i. It merely bolsters the case for the prosecution but does not stand as proof of the fact of absence or lack of a license. oragon. No. (PP -vs. G. Furthermore.R. arm-chair social activist. 1999) Elmer Brabante at 10:05 PM 1 comment: 1. View my complete profile Powered by Blogger. there can be no separate conviction for the crime of illegal possession of firearms under P. Thereunder. 2009 at 5:42 PM DURA LEX SED LEX!!! Reply Links to this post Create a Link ‹ › Home View web version About Me Elmer Brabante Student of law. 8294. 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. professor on-leave.AUGUSTO LORETO RINGOR. the penalty for illegal possession of firearms shall be imposed provided that no crime is committed. Dec. No. 1866 in view of the amendments introduced by Republic Act No. the penalty for illegal possession of firearms is no longer imposable since it becomes merely a special aggravating circumstance.. Roseller Villagonzalo BucogDecember 13.People vs. that in cases where murder or homicide is committed with the use of an unlicensed firearm. 123918.D. . Ronaldo Valdez. where murder or homicide was committed. In other words. 9. culture voyeur. JR.