BAROPS Samplex
BAROPS Samplex
BAROPS Samplex
LAST MINUTE REMINDERS AND POINTERS: What is meant by SWEETHEART DEFENSE in rape cases?
Sweetheart defense in rape, to be credible, should be substantiated by some documentary or other evidence of the relationship like mementos, love letters, love notes, pictures and the like. Here appellant categorically admitted that no such evidence exists hence, his alleged romantic relationship with victim is just a figment of his imagination. Assuming that appellant and victim were sweethearts, it does not mean that he could not rape her. Such a relationship is not a guaranty that he will not assault and tarnish that which she holds so dearly and trample upon her honor and dignity. Indeed, a sweetheart can be forced to engage in sexual intercourse against her will. (People vs. Eduardo Limos, 410 SCRA 463 (2003) penned by Justice Sandoval Gutierrez)
PEOPLE VS. ORITA, 184 SCRA 105 (1990) Facts: Accused PC soldier Orita followed 19-year-old Cristina Abayan from party, used knife to force her to have sexual intercourse, but while on top, she managed to escape. Samar RTC convicted him of frustrated rape and case on appeal. Held: SC held its consummated rape, and not mere frustrated rape only. Citing People vs. Erinia, no frustrated stage anymore and Erinia ruling was a stray decision. It is settled that slight penetration consummates rape, and perfect penetration not essential. Mere touching of lips of vagina, without laceration of vagina or emission, already consummates rape. PEOPLE VS. DELA PENA, 233 SCRA 573 (1994)
Facts: Accused dela Pena waylaid 9-year-old Rose Marasigan on her way to school. Due to her resistance, and then playing dead, that accused panicked, could not get an erection, and fled. Valenzuela RTC held its consummated rape and penalty was reclusion perpetua. Held: SC, however, modified Valenzuela RTC decision and held its only attempted rape. Although mere touching consummates rape, rape presupposes an erect penis because without erection, there can be no penetration, no matter how slight, and without penetration, there can be no consummation.
PEOPLE VS. CAMPUHAN, (2000 case) Facts: Mother saw accused and houseboy Campuhan in the act of almost raping her 4-year-old daughter in a kneeling position. Medical findings indicated hymen was still intact but since in previous Orita ruling entry into labia without rupture of hymen already consummated rape, issue is whether or not its consummated, or attempted, rape only. Held: SC held its attempted rape only. Touching here means the penis indeed touched the labia and slid into the female organ, and not merely stroke the external surface. Some degree of penetration beneath the surface must be achieved, and the labia majora must be entered. Victim herself testified that penis grazed but did not penetrate her organ.
2 There was only a shelling of the castle, but no bombardment of the drawbridge yet.
3 Held: The Supreme Court affirmed conviction of lower court for one count of rape but penalty is reclusion perpetua only, and not death penalty. 1) The penalty was reduced to reclusion perpetua because nowhere in the law is second ejaculation a mode of qualifying the offense by increasing the penalty death. Further, the relationship of the victim to the accused, and the minority of the victim, were not alleged in the Information. 2) The second ejaculation is immaterial because gravamen of the offense is carnal knowledge, and not the number of times the accused ejaculated.
4 Held: SC affirmed his conviction for consummated rape. 1) A person is guilty of rape when he has sexual intercourse with a female who is suffering from a borderline mental deficiency. Based on medical reports, Cherry had an IQ of only 43, and is considered a mental retardate to a moderate degree with a mental age of an average seven-year-old child. In fine, she is an imbecile. 2) Appellants contention that they were sweethearts does not hold water. A defense based on the sweetheart theory is no defense at all in rape where the victim is a mental retardate because it is settled that sexual intercourse with a mental retardate constitutes rape. Cherry, an imbecile, cannot give legal consent to sexual intercourse.
(Recall EBAC) What are the THREE BASIC PRINCIPLES of criminal Law? Pro 1)
Prospectivity -- Crimes punishable by penal laws already in force at the time of their commission, EXCEPT if favorable to accused, provided accused is not a habitual offender, although at the time of promulgation of such law a final sentence has been pronounced and the convict is serving the same . Gen 2) Generality Penal laws shall be obligatory upon those who live or sojourn in Philippine territory, subject to principles of public international law and to treaty stipulations.
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3) Territoriality Criminal laws are only enforceable within Philippine territory, except those provided in Article 2, RPC because of the EXTRATERRITORIALITY principle.
(Recall ProGenTer) What are the THREE SCHOOLS OF THOUGHT of Criminal Law?
1) Classical -- Basis of criminal liability is human free will; purpose of penalty being retribution and deterrence; penalty proportionate to offense; basis of crime is human nature; 2) Positivist -- Man is subdued by strange, morbid phenomenon which constrains him to do wrong despite his will to the contrary; purpose of penalty is reformation, although our penal system is essentially Classical. 3) Eclectic -- Combination of best features of classical and positivist schools of thought from which the RPC is patterned after, although our penal laws is still essentially classical.
PROBLEM: Mr. Derla lives with his family in a small rented apartment in an urban poor community located at the outskirts of Davao City. Due to a number of robberies in the neighborhood, Mr. Derla armed himself with a .38 paltik revolver. Around midnight sometime in January 2006, he was awakened by the barking of dogs and he immediately grabbed his gun as he went out to investigate. It was pitch black yet he could see a dark figure with a bladed weapon in hand, around 15 meters away, menacingly moving towards him. He fired six successive shots at his would-be-assailant who died at the spot. When the lights were turned on, the assailant happened to be his 70-year-old father-in-law carrying a newspaper on his way to the kitchen to eat midnight snacks and read the newspaper. a) If you were Derlas lawyer, what defenses will you invoke in behalf of your client? ANSWER: If I were Mr. Derlas lawyer, I will invoke defense of mistake of fact. In the case at bar, all requisites of mistake of fact are present because the act and intention of Mr. Derla would have been lawful and constituted legitimate self defense had facts been as Mr. Derla believed them to be. Further, Mr. Derla was not negligent considering that the danger here was immediate and impending, in light of the fact that the neighborhood has witnessed several robberies in the past. b) If you were Judge, rule on the liability of Mr. Derla. ANSWER: If I were the Judge, I will hold Mr. Derla liable for Simple imprudence resulting in homicide, the homicide resulting from simple lack of precaution on the part of Mr. Derla to ascertain the identity of the intruder. Considering that the intruder was still 15 meters away, there was still reasonable opportunity for Mr. Derla to ascertain the identity without imminent danger or risk to himself. Finally, firing six successive shots at the supposed intruder constituted excessive force which negates the defense of mistake of fact. I will, however, credit in Mr. Derlas favor the mitigating circumstance of praeter intentionem, or no intention to commit so grave a wrong as that actually committed.
ABERRATIO ICTUS
These are the three ways by which a person may commit a felony and incur criminal liability although the wrongful act done be different from that which he intended. 1) In Aberratio ictus, there is a mistake in the blow such that the offender intending to cause an injury to one person actually inflicts it on another because of mistake, or lack of precision. For example, when A, intending to kill B, fires his gun at the latter but because of poor aim or lack of precision, A hits C instead who suffers serious physical injury. 2) In Error in personae, there is a mistake in the identity of the victim. For instance, when A, intending to kill B, his enemy, lay in ambush for the latter to pass along a dark alley, and shot B. It turned out that because of the darkness, A fired his gun at C, the unintended victim in the belief that C was B, his intended victim. 3) In Praeter intentionem, the injurious results exceeds the intent of the offender. For instance A, without any intent to kill, slaps B on the face and B falls
8 on the asphalt pavement head first, resulting in fracture of Bs head, causing the death of B. This is a mitigating circumstance when there is a notorious disparity between the act or means employed by the offender and the resulting felony.
(Recall CaIn)
3) Attempted commences commission of felony directly by overt acts, but not perform all acts of EXECUTION by reason of some Cause Or Accident other than his own spontaneous desistance.)
(Recall CorA)
What are the elements of SELF DEFENSE, DEFENSE OF RELATIVE from DEFENSE OF STRANGER.
SELF DEFENSE U 1) Unlawful aggression -- physical act manifesting Actual or Imminent danger to life or limb. R 2) Reasonable necessity of means employed -- there must be no other means to prevent or repel aggression so means must be reasonable; no excessive force.
9 3) Lack of sufficient provocation or no provocation at all given by person defending himself or provocation not sufficient to cause violent aggression on part of victim.
(Recall URL)
DEFENSE OF RELATIVE That the first two requisites of Unlawful aggression and Reasonable necessity are present, and where the provocation was given by the person being attacked, the one defending had NO PART therein. DEFENSE OF STRANGER That the first two requisites of Unlawful aggression and Reasonable necessity are present, and that the offender was not prompted by REVENGE, RESENTMENT or other EVIL MOTIVE. PROBLEM: Jose (Jose for brevity) and Fred (Fred Sr. for brevity) are neighbors with a long-standing feud due to a boundary dispute. One day Jose was drinking beer with his barkada when Fred Sr. passed by. In an effort to reconcile, Jose cordially invited Fred Sr. to join them, but Fred Sr. sarcastically replied: Di ako umiinom kasama mga traidor. This led to a heated argument which soon escalated into an armed struggle, both Jose and Fred Sr. being armed with a bladed weapon. It was not clear who struck first but it was shown that Jose, being bigger and stronger, overpowered Fred Sr. and stabbed him thrice. Jose was about to strike again when Fred, Jr., the victims 25-year-old son, arrived and shot Jose at the back, killing him on the spot. Fred, Sr. himself died while being rushed to the hospital. In the lower court, Fred, Jr. was charged and convicted for Murder because of treachery for shooting Jose at the back, along with generic aggravating circumstance of evident premeditation because of the family feud and abuse of superior strength because of the use of .45 caliber in killing Jose, his fathers arch enemy. a) If you were Fred Jr.s lawyer handling his appeal, what defenses will you raise in your clients favor and assign as error in the lower courts decision. ANSWER: If I were Fred Jrs lawyer handling his appeal, I will invoke defense of relatives. In the case at bar, all requisites of defense of relative are attendant. There was unlawful aggression on the part of Jose in stabling Fred St. and no sufficient provocation on the part of Fred Sr. Most importantly, assuming the provocation was given by Fred Sr., the son Fred Jr. had no part, or participation nor knowledge therein. There can be no treachery nor evident premeditation for as the Supreme Court stressed in a decided case, where there are no particulars as to how aggression commenced, and as to how the acts unfolded leading to the death of the victim in a fight, there is no treachery nor evident premeditation. Neither can there be abuse of superior strength because it was the only weapon available to Fred Jr. which he used to thwart further aggression against his father.
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13 aggressor. In stabling the victim after Escarlos wrested the knife from him, petitioner Escarlos, in effect, became the unlawful aggressor. 3) In stabbing the victim after rendering the victim defenseless, petitioner went beyond self-preservation, and acted out of vindictiveness and with excessive force.
14 2) Cruelty is where offender takes pleasure in increasing the physical suffering of the victim, such as stabbing a dying victim repeated while in the throes of death to augment the victims physical pain. But if preceded by a quarrel, usually there is no cruelty against the accused.
(Recall SAD)
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Distinguish between an ORDINARY COMPLEX CRIME from a SPECIAL COMPLEX CRIME as to their concept, and as to the imposition of penalties.
1) In terms of CONCEPT, an ordinary complex crime is made up of two or more crimes being punished in distinct provision of the Revised Penal Code but alleged in one Information. This is because they were either brought about by a single felonious act, or because one offense is a necessary means for committing another offense. A special complex crime, on the other hand, is made up of two or more crimes which are considered as components only of a single indivisible offense being punished in one provision of the Revised Penal Code. 2) In terms of PENALTY, in an ordinary complex crime the penalty for the most serious crime shall be imposed, and to be applied in its maximum period. In a special complex crime only one penalty is specifically prescribed for all the component crimes which are regarded as one indivisible offense, and not the penalty for the most serious crime in ordinary complex crime.
CRIMES,
CONTINUED
CRIMES
and
1) A COMPOSITE CRIME exists when under one provision of law, a crime which carries another crime as component thereof is penalized with one penalty only. This is otherwise called special composite crime such as Robbery with homicide, Robbery with rape, Robbery with arson, or Rape with homicide. 2) A CONTINUED CRIME is one where the offender acting a single criminal resolution commits a series of acts in the same place at about the same time, and all the overt acts committed violate one and the same legal provision 3) A CONTINUING CRIME is used in procedural law, particularly in criminal procedure. This refers to the venue where the particular crime may be prosecuted. A continuing crime ma be prosecuted in one place but in any place where some of the essential ingredient of the crime were committed.
16 right to appeal. Once convict appeals, on the other hand, he challenges lower courts decision and if appeal denied later, he can no longer apply for probation. 3) After service of probation, accused is still civilly liable because probation only extinguishes the criminal liability, just like in parole, commutation of service of sentence, pardon, etc. (Article 113, Revised Penal Code)
17 suspension, contending that pardon extended him was equivalent to an acquittal. a) If you were the Judge, rule upon the arguments of Mr. Villarama and whether or not you will grant, or deny, his demand for immediate reinstatement and backwages. ANSWER: If I were the Judge, I will deny his demand for immediate reinstatement and backwages. This is because pardon merely implies forgiveness, but not forgetfulness, meaning the accused was found guilty but merely extended pardon, or clemency, by the President. Pardon can therefore only remove the disqualification from seeking public office, but does not work automatic restoration as she must re- apply for the same position. He is neither entitled to backwages since having been found guilty in judicial proceedings, forfeiture of wages during such time is presumed to have been rightfully done and justly suffered, and forms part of his penalty. b) What is the effect of his being granted pardon to his pending appeal? ANSWER: The effect of his being granted pardon is that his appeal is deemed automatically withdrawn. Consequently, his unreversed conviction by the lower court became final.
18 Article 2180 on subsidiary civil liability of father, mother or guardian, owners and managers of establishment, employers, teachers or heads of establishments of arts and trade on the acts or omission of their minor children, employees, pupils, students or apprentices. PROBLEM: D, the driver of a passenger jeepney, while drunk and overspeeding, bumped P, a pedestrian and because of the sudden brakes, A, B and C passengers suffered slight physical injuries. a) What are the causes of action of the pedestrian P, passengers A, B and C against D for recovery of civil liability arising the negligence of D. b) If D is insolvent, whom can they ran after, and under what causes of action. ANSWER: a) P, the pedestrian, can sue D to recover civil liability on the basis of Article 100 of RPC known as culpa criminal, or ex delicto. The three passengers A, B and C, on the other hand, can sue D on the basis of culpa contractual, there being an existing contractual relation between D and the passengers for D to safely carry them to their destination. b) If D is insolvent, P the pedestrian can sue the employer/operator on the basis of Article 103 on the basis of subsidiary civil liability of the owner/employer arising from delict. Or as an option, P may also sue the employer/operator on the basis of Article 2176 and Article 2180 in the form of subsidiary civil liability of the owner/employer arising from quasi- delict. This is, however, subject to the condition imposed by Article 2177 which states that civil liability arising from quasi-delict under Article 2176 is separate and distinct from civil liability arising from crime under Article 103. But plaintiff cannot recover damages twice from the same act or omission of the defendant. PROBLEM Luis was charged and convicted for kidnapping before the Regional Trial Court of Malolos, Bulacan. While the case was pending appeal, the victim Raul died. Luis argued that with the victim Rauls death, Luis criminal and civil liabilities are extinguished. a) What is the effect of the victims death to the criminal and civil liabilities of the accused Luis? ANSWER The death of the victim does not extinguish the criminal nor civil liability of the offender. The criminal liability subsists because the offense is against the state. The civil liability, on the other hand, still remains since the right to seek indemnity would now devolve upon the heirs, and the estate of the deceased victim. b) Assuming it was the accused Luis who died instead, what is the effect of Luis death to Luis criminal and civil liability? ANSWER On the other hand, if it were Luis who died while his conviction is pending appeal before the Supreme Court, his criminal liability is extinguished with his death. His civil liability is likewise extinguished because pecuniary penalties are extinguished when the death of the offender occurs pending appeal, or before final judgment. This is of course without prejudice to the institution of a separate civil action but predicated on a source of obligation not arising from delict but
19 from other sources such as law, contracts, quasi contracts and quasi delicts. (People vs. Bayotas, September 2, 1994) PROBLEM D, the driver of a jeepney, was overspeeding and drank when he figured in an accident causing injuries to P, a pedestrian. D was charged and convicted of Reckless imprudence resulting in serious physical injuries to P, and was made to suffer eight months of prision correccional and to indemnify the victim, P the sum of P10,000.00 and P2,000.00 in attorneys fees. A writ of execution was served upon D but remained unsatisfied due to Ds insolvency. P moved for a subsidiary writ of execution against O, the operator. O, however, opposed the motion on ground that he was not impleaded in the original case and to include him now would be, in effect, amending the decision in the lower court. a) If you were the Judge, rule on the motion for issuance of a subsidiary writ of execution. ANSWER If I were the judge, I will grant the motion for issuance of a subsidiary writ of execution against the operator O, and without the need for filing a separate civil action to recover civil liability. Under the law, the employer and operator O is subsidiarily civilly liable once it is established that he is the employer of D engaged in business or industry, that D caused the injury while in the discharge of his functions, and that D who is primarily civilly liable is insolvent. Considering that all three requisites are attendant, O as operator is subsidiarily civilly liable although he was not impleaded in the earlier case. It is enough that he is notified of the motion for issuance of a subsidiary writ of execution. (See Carpio vs. Doroja)
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(Recall SAM) Distinguish ARBITRARY DETENTION from ILLEGAL DETENTION from DELAY IN TH DELIVERY OF DETAINED PERSONS.
1) In Arbitrary detention, offender is a public officer who, without legal grounds, detains another person while in Illegal detention, the offender is a private individual who unlawfully deprives another of the latters liberty. 2) In Delay in delivery of detained persons, offender is a public officer who detains another person with legal ground, yet fails to deliver the detained person to the proper judicial authorities within 12 hours, 18 hours or 36 hours for light felonies, less grave felonies and grave felonies, respectively.
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a) The offender was already convicted by final judgment of one offense (could be mala in se or mala prohibita). b) The offender commits a new felony (2nd offense must be mala in se, and not mala prohibita) before beginning sentence, or while serving sentence. 2) The second crime must be a crime mala in se punishable under the Revised Penal Code, and not a crime mala prohibita hence, the use of the word new felony. The first offense, however, may be a crime mala in se, or a crime mala prohibita. 3) Quasi-recidivism is a special aggravating circumstance where penalty is the maximum period of the new felony, regardless of the presence of any mitigating circumstances.
OF
COINS
from
1) In Counterfeiting, the crime is making of coins while passing them off as genuine when they are actually spurious. In People vs. Kong Leon, counterfeiting would involve coins no longer in circulation, the danger being that the counterfeiter may only be honing his skills and may later on counterfeit coins actually in circulation. 2) In Mutilation of coins, the crime is abstracting the gold/silver or metal of such coins which would diminish its value. The essence of the crime is thus, the diminution of value by mutilating or destroying the coin that it necessarily involves
22 coins still in circulation, unlike in Counterfeiting of coins which could involve coins no longer in circulation.
P U L A
(Recall PULA)
In Syquian vs. People, absolutely false means there was no iota of colorable truth in such narration of facts.
Elements of PERJURY
The elements of Perjury are as follows: A/S 1) That the offender made a Affidavit or a Statement under oath, upon a material matter. C 2) That said Affidavit or Statement under oath was made before a Competent officer authorized to receive and administer such oath. A 3) That in said Affidavit or Statement under oath accused made a deliberate Assertion of falsehood. L 4) That said Affidavit or Statement containing falsity is required by Law or for a legal purpose. (Recall A/SCAL) In Diaz vs. People, the Supreme Court held there was Perjury because offender filled up his Personal Data Sheet, or CS Form 212, under oath and executed before a Civil Service Officer, stating that he was a 4 th year college B.A. student in 1950-1954 at Cosmopolitan and Harvardian Colleges. This despite his knowledge it was deliberately false, and such statement was required by law for him to be reappointed as school administrative assistant of Jose Abad Santos High School.
23 2) Elements of Indirect bribery: a) A public officer accepts gifts by reason of his office. Exception: If the gift is unsolicited, of moderate amount and/or given as a token, or given during a special occasion. 3) Elements of Corruption of public official: a) Anyone, meaning a private individual or public officer, who offers the bribe, gift or promise is liable for this crime.
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What are the OTHER ACTS considered rape under the Anti-Rape Law of 1997, or R.A. 8353?
1) Offender having carnal knowledge of a woman by means of fraudulent machination, or grave abuse of authority. 2) Offender having carnal knowledge of a demented woman by a man even if none of the circumstances required in rape is present. 3) Offender committing an act of sexual assault by inserting a persons penis into the victims mouth, or anal orifice, or by inserting any instrument or object into the genital or anal orifice of another person.
Will marriage by the offender to the offended party extinguish the criminal action considering that Anti-Rape Law of 1997 reclassified rape from crime against CHASTITY to a crime against PERSONS?
Yes. By express provision of Article 266-C of the Revised Penal Code, as amended, the subsequent valid marriage between the offender and the offended
25 party shall extinguish the criminal action or the penalty imposed, although rape has been reclassified from a Crime against chastity, to a Crime against persons.
Elements of KIDNAPPING
1) In Kidnapping, the offender is a private individual who kidnaps or detains another but without lewd designs. Otherwise, crime would be Forcible abduction. 2) There are two requisites for Kidnapping a) There must be actual detention for a certain period of time. b) There must be intent to detain.
ROBBERY from ROBBERY WITH HOMICIDE and ROBBERY WITH RAPE from THEFT
1) Elements of ROBBERY: a) There is unlawful taking (with intent to gain) of personal property of another. b) The unlawful taking was done through violence against or intimidation of persons, or force upon things. 2) If the taking involves real property and not personal property, the crime is Occupation of real property or Usurpation of real rights in property. 3) In People vs. Quinones, the Supreme held that there was only one Special complex crime of Robbery with homicide committed although three
26 victims were killed on the occasion of the robbery, hence penalty is only one reclusion perpetua for each accused. This is because crime involves a special complex crime with an indivisible penalty, regardless of the number of victims killed. 4) In People vs. Dinola, it was held that accused Dinola was liable for two separate crimes of Rape and Robbery when he first raped the victim, and then chanced upon the watch and seized it. This is because he had two criminal intents, and the forcible taking of the watch was only incidental, and not originally part of his criminal intent, and neither was it a necessary means. In other words, the robbery merely supervened and came later, after the rape was already consummated.
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(Recall MVP)
2) For libel to prosper, the prosecution must first prove Malice in law relying on Article 354 which provides for Malice in law by stating that every defamatory imputation is presumed to be malicious, even if true. If prosecution cannot establish malice in law, it can try to prove Malice in fact or that scurrilous publication was made in utter disregard of its falsity, or with knowledge of its falsity. 3) Defenses in libel would be good intention and justifiable motive in the form of a) Absolutely privileged or b) Conditionally privileged communication. a) There is Absolutely privileged communication if: 1) In aid of legislation and 2) If it involves judicial proceedings. b) There is Conditionally privileged communication under the following conditions: 1st, A private communication made to another in performance of a legal, moral or social duty. 2nd, A fair and true report on any judicial, legislative or other official proceedings. 3rd, A statement or report on a public officer in discharge of his official functions. 4th, A fair and true comment on a matter involving public interest. (Borjal vs. Court of Appeals)
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