2007 bar questions and suggested answers (CRIMINAL LAW)

Criminal Law

I.
(10%)

What are the penalties that may be served simultaneously?
a. Perpetual absolute disqualification;
b. Perpetual special disqualification;
c. Temporary absolute disqualification;
d. Temporary special disqualification;
e. Suspension;
f. Public censure;
g. Destierro;
h. Fine and bond to keep peace;
i. Civil Interdiction;
j. Confiscation and payment of cost.

The above penalties, except destierro, may be served simultaneously with imprisonment. (Article 70, Revised Penal Code)

Prison terms may also be served simultaneously whenever there are more than three (3) convictions imposing imprisonment as penalties and the Three-Fold Rule under Article 70 of the Revised Penal Code is made to apply.

II.
(10%)

Tiburcio asked Anastacio to join their group for a "session". Thinking that it was for a mahjong session, Anastacio agreed. Upon reaching Tiburcio’s house, Anastacio discovered that it was actually a shabu session. At that precise time, the place was raided by the police, and Anastacio was among those arrested.What crime can Anastacio be charged with, if any? Explain your answer.
Alternative Answer:
Anastacio can be charged with violation of Section 7, Article 2, RA 9165, otherwise known as the Comprehensive Drug Act of 2002, which punishes any person who visits a den, dive or resort, knowing the nature of the place as such.

A den, dive, resort is a place where any dangerous drugs and essential chemicals is administered, delivered, stored, sold or used in any form. (Section 3[1], Article 1, RA 9165).

However, Anastacio could interpose as a defense for his exculpation that he is now aware that the house of Tiburcio is a den or dive.

Alternative Answer:
Anastacio can not be charged with any crime. The facts spelled out in the problem clearly shows he was unaware that he is being led to a shabu session. It was his thinking it was a mahjong session.

The problem does not state he was in possession of any dangerous drugs. Thus, when he was arrested, he has just arrived in the session and that was the only time he discovered it was a pot session.

III.
(10%)

Jervis and Marlon asked their friend, Jonathan, to help them rob a bank. Jervis and Marlon went inside the bank, but were unable to get any money from the vault because the same was protected by a time-delay mechanism. They contented themselves with the customer’s cellphones and a total of P5,000 in cash. After they dashed out of the bank and rushed into the car, Jonathan pulled the car out of the curb, hitting a pedestrian which resulted in the latter’s death. What crime or crimes did Jervis, Marlon and Jonathan commit? Explain your answer.

Alternative Answer:
Assuming the acts were attended by the use of force and intimidation in robbing the bank, Jonathan, Marlon and Jervis committed the special complex crime of attempted robbery with homicide. The subsequent running over of the pedestrian in the course of their escape was by reason or on occasion of the robbery, thereby qualifying the crime as attempted robbery with homicide. Having acted in conspiracy with Jervis and Marlon, Jonathan should also be charged with attempted robbery with homicide.

On the other hand, he asking of the cellphones and P5,000.00 from the customers are the separate acts of Jervis and Marlon, and do not involve Jonathan as it was not part of their original agreement. Jervis and Marlon should be charged for the crime of robbery.

Alternative Answer:
As the facts do not indicate any weapons or use of force or intimidation, Jervis and Marlon can only be charged with theft for the taking of the cellphones and P5,000.00 from the customers. Jonathan is solely liable for reckless imprudence resulting in homicide for the killing of the pedestrian.

Jervis, Marlon and Jonathan can be charged as co-principals for attempted theft in their failed effort to take money from the vault pursuant to their conspiracy. It is possible that the vault could have been left open during the business hours of the bank. However, at the time of the commencement of the crime delay mechanism prevented them from performing all the acts of execution, a cause or reason other than their spontaneous desistance.

IV.
(10%)

Macky, a security guard, arrived home late one night after rendering overtime. He was shocked to see Joy, his wife, and Ken, his best friend, in the act of having sexual intercourse. Macky pulled out his service gun and shot and killed Ken.

The court found that Ken died under exceptional circumtances and exonerated Macky of murder but sentenced him to destierro, conformably with Article 247 of the Revised Penal Code. The court also ordered Macky to pay indemnity to the heirs of the victim in the amount of P50,000.

a. Did the court correctly order Macky to pay indemnity even though he was exonerated of murder? Explain your answer.
Alternative Answer:
The court correctly ordered Macky to pay indemnity. Death under exceptional circumstances as defined under Article 247 is an absolutory cause that exempts the offender from criminal liability. In exempting circumstances, there is a crime but there is no offender because the latter is exempt. There being a crime committed, civil liability may be properly awarded. (People v. Coricor, G.R. No. 48768, December 4, 1947).

Alternative Answer:
The court committed an error when it also ordered Macky to pay indemnity to the heirs of the victim. In People v. Abarca, G.R. No. L-74433, September 14, 1987, the Supreme Court did not impose civil liability to be paid to the accused appellant to the heirs of the person whom he killed pursuant to the provision of Article 247 of the Revised Penal Code since “xxx inflicting death under exceptional circumstances is not murder xxx”

Moreover, as held in People v. Coricor, G.R. No. 48768, December 4, 1947 reiterated in People v. Araquel, G.R. No. L-12629, December 9, 1959, this penalty (referring to Destierro) is “mere banishment and is intended more for the protection of the accused than a punishment.” We therefore can not apply the provision of Article 100 of the Revised Penal Code that a person criminally liable is also civilly liable.

b. While serving his sentenced, Macky entered the prohibited area and had a pot session with Ivy (Joy’s sister). Is Macky entitled to an indeterminate sentence in case he is found guilty of the use of prohibited substances? Explain your answer.

The Indeterminate Sentence Law provides that its provisions shall not apply to persons who have evaded sentence, among others (Section 2, Indeterminate Sentence Law). Macky is not entitled to an indeterminate sentence because he had evaded his sentence by entering the prohibited area. Evasion of service is not only committed when the penalty of confinement or imprisonment is imposed but also when the penalty is destierro because it involves deprivation of liberty.

V.
(10%)

a. Distinguish between an accomplice and a conspirator.
Distinction between an accomplice and a conspirator:
1. As to the criminal intent, conspirators know the criminal intention because they themselves have decided upon such course of action. Accomplices come to know about it after the principals have reached the decision, and only then do they agree to cooperate in its execution.

2. As to the decision to commit the crime, conspirators decide that a crime should be committed; accomplices do not decide whether the crime should be committed, they merely assent to the plan and cooperate in its accomplishment.

3. As to their participation, conspirators are the authors of a crime, accomplices are merely their instruments who perform acts not essential to the perpetration of the offense. (People v. Garcia, G.R. No. 133489, January 15, 2002).

b. What are the three (3) classes of offender in the crime of qualified seduction? Give an example of each.

Classes of offenders in the crime of qualified seduction:
1. Those who abuse their authority,
Example: Guardian, teacher and persons in authority

2. Those who abused the confidence reposed in them,
Example: Priest, house servant or a domestic

3. Those who abuse their relationship.
Example: Brother or ascendant, whether legitimate or illegitimate (Article 337, Revised Penal Code)

VI.
(10%)

What are the different acts of inciting to sedition?
The different acts of inciting to sedition are:
1. Inciting others to be accomplishment of any of the acts which constitute sedition by means of speeches, proclamations, writings, emblems, etc.

2. Uttering seditious words or speeches which tend to disturb the public peace.

3. Writing, publishing, or circulating scurrilous libels against the Government or any of the duly constituted authorities thereof, which tend to disturb public peace or who knowingly concealing such evil practices. (Article 142, Revised Penal Code)

VII.
(10%)

Eddie brought his son Randy to a local faithhealer known as "Mother Himala." He was diagnosed by the faithhealer as being possessed by an evil spirit. Eddie thereupon authorized the conduct of a "treatment" calculated to drive the spirit from the boy’s body. Unfortunately, the procedure conducted resulted in the boy’s death.

The faithhealer and tree others who were part of the healing ritual were charged with murder and convicted by the lower court. If you are appellate court Justice, would you sustain the conviction upon appeal? Explain your answer.

No, the conviction of murder will not sustained. The faith-healer and the three others must only be convicted of homicide through reckless imprudence because they did not have any intent to kill when they treated the victim. There was reckless imprudence because the faith-healer and the three others treated the victim knowing that they do not have the necessary knowledge and skill to do so and they failed to exercise the necessary precaution in healing the victim. (People v. Carmen, G.R. No. 137268, March 26, 2001)

VIII
(10%)

Fe is the manager of a rice mill in Bulacan. In order to support a gambling debt, Fe made it appear that the rice mill was earning less than it actually was by writing in a "talaan" or ledger a figure lower than what was collected and paid by their customers. Fe then pocketed the difference. What crime/s did Fe commit, If any? Explain your answer.

Alternative Answer:
Fe is liable for the crime of qualified theft. Fe did not acquire juridical possession of the money. Fe’s possession is still possession of her employer. The falsification of the talaan or ledger was but a means to facilitate or conceal the crime. The falsification of the talaan or ledger to a figure lower than what was paid by their customers is merely intended to conceal the misappropriation of the money derived from the rice mill operation.

Considering that a special confidential or fiduciary relationship exists between her and her employer, the crime committed by Fe is qualified theft under Article 310 of the Revised Penal Code by taking the employer’s money.

Alternative Answer:
Fe committed the crime of estafa by misappropriating or converting money, goods or any other personal properties received in trust, to the prejudice of another. As general manager, Fe performs acts of administration, including the receipt and custody of money paid by customers. (Article 315, par. 1[b], Revised Penal Code). The falsification of the talaan or ledger to a figure lower than what was paid by their customers is merely intended to conceal the misappropriation of the money derived from the rice mill operation, and does not constitute a separate crime of falsification.

IX.
(10%)

During a concert of Gary V. and in order to prevent the crowd from rushing to the stage, Rafael Padilla {a security guard} pointed his gun at the onrush of people. When the crowd still pushed forward, Rafael fired his gun into air to scare them off. However, the bullet hit one of the metal roof supports, ricocheted and then hit one of the stage crew members, causing injuries which resulted in the latter’s confinement in a hospital for twelve days. What crime/s did Rafael commit? Explain your answer.

Alternative Answer:
Rafael Padilla committed the complex crime of Illegal Discharge of Firearm with Less Serious Physical Injuries.

Before he fired his gun, it was pointed at the onrushing people. When the crowd pushed forward, he fired his gun upward to scare them off. At this point, the crime is illegal discharge of firearm, even if the gun was not pointed at the offended party, as long as it was initially aimed at or against the offended party. (Reyes, Revised Penal Code, Book II, 2006 ed., p. 490.)

However, Rafael Padilla is also liable for the injury of the crew member since it is the natural and logical consequence of firing the gun. (Article 4, par. 1, RPC) Since a single act resulted in two crimes, one illegal discharge of firearm and the other, less serious physical injuries, he is liable for the complex crime of illegal discharge of firearm with less serious physical injuries. (Article 48, Revised Penal Code; People v. Arquiza, G.R. Nos. 42128-29, December 19, 1935).

Alternative Answer:
Rafael Padilla has not committed any crime. His purpose in firing his gun into the air is to prevent the onrush of people which could result in death or injuries. He was therefore in the performance of a lawful act with due care because he did not fire indiscriminately. He has no fault or intention of causing the resultant damage to property and the injury to the stage crew member. What happened was an accident. (Article 12, par. 4, Revised Penal Code).

The rule that a person can be held liable for illegal discharge of firearm when he “initially aimed” at the offended party even if the firearm was fired or discharged when no longer pointed at the offended party is anchored on the fact that he “was about to shoot the offended party.” (People v. Ramirez, G.R. No. 240084, November 3, 1925). Here, the security guard (Rafael Padilla) did not point the firearm to the people who continued the onrushing; he did not fire at them; he pointed the gun into the air and fired to prevent graver consequences.

X.
(10%)

Pinky was a lessee of a market stall owned by Giovanni. When Pinky refused to pay her rental, Giovanni nailed some wooden barricades on one of the sides of the market stall and posted this warning: "We have closed this portion of the door. Do not open it or else something may happen to you." What crime/s did Giovanni commit, if any? Explain your answer.

Giovanni committed the crime of Unjust Vexation. Unjust vexation includes any human conduct which, although not productive of physical or material harm would, however, unjustly annoy or vex an innocent person. The act of the accused in nailing the barricades with a warning not to open the door “or else something will happen to you” does not constitute such a serious threat or intimidation amounting to grave coercion but merely the crime of unjust vexation penalized under paragraph 2, Article 287 of the Revised Penal Code. (People v. Banzon, et.al., G.R. No. 05388, October 21, 1969, cited in Reyes Book II, 2006 Ed., p. 605).

NOTHING FOLLOWS.