Archive for the ‘Bar Exam Review’ Category
Carla, 4 years old, was kidnapped by Enrique, the tricycle driver paid by her parents to bring and fetch her to and from school. Enrique wrote a ransom note demanding P500,000.00 from Carla’s parents in exchange for Carla’s freedom. Enrique sent the ransom note by mail. However, before the ransom note was received by Carla’s parents, Enrique’s hideout was discovered by the police. Carla was rescued while Enrique was arrested and incarcerated. Considering that the ransom note was not received by Carla’s parents, the investigating prosecutor merely filed a case of “Impossible Crime to Commit Kidnapping” against Enrique. Is the prosecutor correct? Why?
SUGGESTED ANSWER:
No, the prosecutor is not correct in filing a case for “impossible crime to commit kidnapping” against Enrique. Impossible crimes are limited only to acts which when performed would be a crime against persons or property. As kidnapping is a crime against personal security and not against persons or property, Enrique could not have incurred an “impossible crime” to commit kidnapping. There is thus no impossible crime of kidnapping.
Philippine Bar Review: Impossible Crime
Buddy always resented his classmate, Jun. One day, Buddy planned to kill Jun by mixing poison in his lunch. Not knowing where he can get poison, he approached another classmate, Jerry to whom he disclosed his evil plan. Because he himself harbored resentment towards Jun, Jerry gave Buddy a poison, which Buddy placed on Jun’s food. However, Jun did not die because, unknown to both Buddy and Jerry, the poison was actually powdered milk. 1, What crime or crimes, if any, did Jerry and Buddy commit?
2. Suppose that, because of his severe allergy to powdered milk, Jun had to be hospitalized for 10 days for ingesting it. Would your answer to the first question be the same?
SUGGESTED ANSWER:
1. Jerry and Buddy are liable for the so-called “impossible crime” because, with intent to kill, they tried to poison Jun and thus perpetrate Murder, a crime against persons. Jun was not poisoned only because the would-be killers were unaware that what they mixed with the food of Jun was powdered milk, not poison. In short, the act done with criminal intent by Jerry and Buddy, would have constituted a crime against persons were it not for the inherent inefficacy of the means employed. Criminal liability is incurred by them although no crime resulted, because their act of trying to poison Jun is criminal.
2. No, the answer would not be the same as above. Jerry and Buddy would be liable instead for less serious physical injuries for causing the hospitalization and medical attendance for 10 days to Jun. Their act of mixing with the food eaten by Jun the matter which required such medical attendance, committed with criminal intent, renders them liable for the resulting injury.
Philippine Bar Review: Impossible Crime
JP, Aries and Randal planned to kill Elsa, a resident of Barangay Pula, Laurel, Batangas. They asked the assistance of Ella, who is familiar with the place.
On April 3, 1992, at about 10:00 in the evening, JP, Aries and Randal, all armed with automatic weapons, went to Barangay Pula. Ella, being the guide, directed her companions to the room in the house of Elsa. Whereupon, JP, Aries and Randal fired their guns at her room. Fortunately, Elsa was not around as she attended a prayer meeting that evening in another barangay in Laurel.
JP, et al, were charged and convicted of attempted murder by the Regional Trial Court at Tanauan, Batangas.
On appeal to the Court of Appeals, all the accused ascribed to the trial court the sole error of finding them guilty of attempted murder. If you were the ponente, how will you decide the appeal?
SUGGESTED ANSWER:
If I were the ponente, I will set aside the judgment convicting the accused of attempted murder and instead find them guilty of impossible crime under Art. 4, par. 2, RPC, in relation to Art. 59, RPC. Liability for impossible crime arises not only when the impossibility is legal, but likewise when it is factual or physical impossibility, as in the case at bar. Elsa’s absence from the house is a physical impossibility which renders the crime intended Inherently incapable of accomplishment. To convict the accused of attempted murder would make Art. 4, par. 2 practically useless as all circumstances which prevented the consummation of the offense will be treated as an incident independent of the actor’s will which is an element of attempted or frustrated felony (Intod vs. CA, 215 SCRA 52).
Paolo was charged with homicide before the Regional Trial Court of Manila. Andrew, a prosecution witness, testified that he saw Paolo shoot Abby during their heated argument. While the case is still pending, the City Hall of Manila burned down and the entire records of the case were destroyed. Later, the records were reconstituted. Andrew was again called to the witness stand. This time he testified that his first testimony was false and the truth was he was abroad when the crime took place.
The judge immediately ordered the prosecution of Andrew for giving a false testimony favorable to the defendant in a criminal case. 1.] Will the case against Andrew prosper? 2.] Paolo was acquitted. The decision became final on January 10, 1987. On June 18, 1994 a case of giving false testimony was filed against Andrew. As his lawyer, what legal step will you take?
SUGGESTED ANSWER:
1) Yes. For one to be criminally liable under Art. 181, RPC, it is not necessary that the criminal case where Andrew testified is terminated first. It is not even required of the prosecution to prove which of the two statements of the witness is false and to prove the statement to be false by evidence other than the contradictory statements (People vs. Arazola, 13 Court of Appeals Report, 2nd series, p. 808).
2) As lawyer of Andrew, I will file a motion to quash the Information on the ground of prescription. The crime of false testimony under Art. 180 has prescribed because Paolo, the accused in the principal case, was acquitted on January 10, 1987 and therefore the penalty prescribed for such crime is arresto mayor under Art. 180, par. 4, RPC.
Crimes punishable by arresto mayor prescribes in five (5) years (Art. 90, par. 3, RPC). But the case against Andrew was filed only on June 18, 1994, whereas the principal criminal case was decided with finality on January 10, 1987 and, thence the prescriptive period of the crime commenced to run. From January 10, 1987 to June 18, 1994 is more than five (5) years.
Pascual operated a rice thresher in Barangay Napnud where he resided. Renato, a resident of the neighboring Barangay Guihaman, also operated a mobile rice thresher which he often brought to Barangay Napnud to thresh the palay of the farmers there. This was bitterly resented by Pascual. One afternoon Pascual, and his two sons confronted Renato and his men who were operating their mobile rice thresher along a feeder road in Napnud. A heated argument ensued. A barangay captain who was fetched by one of Pascual’s men tried to appease Pascual and Renato to prevent a violent confrontation. However, Pascual resented the intervention of the barangay captain and hacked him to death. What crime was committed by Pascual? Discuss fully.
SUGGESTED ANSWER:
Pascual committed the complex crime of homicide with assault upon a person in authority (Arts. 148 and 249 in relation to Art, 48, RPC). A barangay chairman, is in law (Art. 152), a person in authority and if he is attacked while in the performance of his official duties or on the occasion thereof the felony of direct assault is committed.
Art. 48, RPC, on the other hand, provides that if a single act produces two or more grave or less grave felonies, a complex crime is committed. Here, the single act of the offender in hacking the victim to death resulted in two felonies, homicide which is grave and direct assault which is less grave.
Because of the approaching town fiesta in San Miguel, Bulacan, a dance was held in Barangay Camias. A, the Barangay Captain, was invited to deliver a speech to start the dance. While A was delivering his speech. B, one of the guests, went to the middle of the dance floor making obscene dance movements, brandishing a knife and challenging everyone present to a fight. A approached B and admonished him to keep quiet and not to disturb the dance and peace of the occasion. B, instead of heeding the advice of A, stabbed the latter at his back twice when A turned his back to proceed to the microphone to continue his speech. A fell to the ground and died. At the time of the incident A was not armed. What crime was committed? Explain.
SUGGESTED ANSWER:
The complex crime of direct assault with murder was committed. A, as a Barangay Captain, is a person in authority and was acting in an official capacity when he tried to maintain peace and order during the public dance in the Barangay, by admonishing B to keep quiet and not to disturb the dance and peace of the occasion. When B, instead of heeding A’s advice, attacked the latter, B acted in contempt and lawless defiance of authority constituting the crime of direct assault, which characterized the stabbing of A. And since A was stabbed at the back when he was not in a position to defend himself nor retaliate, there was treachery in the stabbing. Hence, the death caused by such stabbing was murder and having been committed with direct assault, a complex crime of direct assault with murder was committed by B.
Distinguish clearly but briefly: Between rebellion and coup d’etat, based on their constitutive elements as criminal offenses.
REBELLION is committed when a multitude of persons rise publicly in arms for the purpose of overthrowing the duly constituted government, to be replaced by a government of the rebels. It is carried out by force and violence, but need not be participated in by any member of the military, national police or any public officer.
COUP D’ETAT is committed when members of the military, Philippine National Police, or public officer, acting as principal offenders, launched a swift attack thru strategy, stealth, threat, violence or intimidation against duly constituted authorities of the Republic of the Philippines, military camp or installation, communication networks, public facilities or utilities needed for the exercise and continued possession of governmental powers, for the purpose of seizing or diminishing state powers.
Unlike rebellion which requires a public uprising, coup d’etat may be carried out singly or simultaneously and the principal offenders must be members of the military, national police or public officer, with or without civilian support. The criminal objective need not be to overthrow the existing government but only to destabilize or paralyze the existing government.
Manny killed his wife under exceptional circumstances and was sentenced by the Regional Trial Court of Dagupan City to suffer the penalty of destierro during which he was not to enter the city.
While serving sentence, Manny went to Dagupan City to visit his mother. Later, he was arrested in Manila.
1. Did Manny commit any crime?
2. If so, where should he be prosecuted?
SUGGESTED ANSWER:
1. Yes. Manny committed the crime of evasion of service of sentence when he went to Dagupan City, which he was prohibited from entering under his sentence of destierro.
A sentence imposing the penalty of destierro is evaded when the convict enters any of the place/places he is prohibited from entering under the sentence or come within the prohibited radius. Although destierro does not involve imprisonment, it is nonetheless a deprivation of liberty. (People vs. Abilong. 82 Phil. 172).
2. Manny may be prosecuted in Dagupan City or in Manila where he was arrested. This is so because evasion of service of sentence is a continuing offense, as the convict is a fugitive from justice in such case. (Parulan vs. Dir. of Prisons, L-28519, 17 Feb. 1968)
On May 5, 1992, at about 6:00 a.m., while Governor Alegre of Laguna was on board his car traveling along the National Highway of Laguna, Joselito and Vicente shot him on the head resulting in his instant death. At that time, Joselito and Vicente were members of the liquidation squad of the New People’s Army and they killed the governor upon orders of their senior officer, Commander Tiago. According to Joselito and Vicente, they were ordered to kill Governor Alegre because of his corrupt practices. If you were the prosecutor, what crime will you charge Joselito and Vicente?
Alternative Answer
If I were the prosecutor, I would charge Joselito and Vicente for the crime of murder as the purpose of the killing was because of his “corrupt practices “, which does not appear to be politically motivated. There is no indication as to how the killing would promote or further the objective of the New Peoples Army. The killing is murder because it was committed with treachery.
ALTERNATIVE ANSWER:
The crime should be rebellion with murder considering that Art. 135 of the Revised Penal Code has already been amended by Rep. Act No. 6968, deleting from said Article, common crimes which used to be punished as part and parcel of the crime of rebellion. The ruling in People vs. Hernandez, 99 Phil. 515 (1994), that rebellion may not be completed with common crimes committed in furtherance thereof, was because the common crimes were then penalized in Art. 135 together with the rebellion, with one penalty and Art. 48 of the Rev. Penal Code cannot be applied. Art. 135 of said Code remained exactly the same when the case of Enrile vs, Salazar, 186 SCRA 217 (1990) was resolved. Precisely for the reason that Art. 48 cannot apply because the common crimes were punished as part of rebellion in Art. 135, that this Article was amended, deleting the common crimes therefrom. That the common crimes were deleted from said Article, demonstrates a clear legislative intention to treat the common crimes as distinct from rebellion and remove the legal impediment to the application of Art. 48. It is noteworthy that in Enrile vs. Salazar (supra) the Supreme Court said these:
“There is an apparent need to restructure the law on rebellion, either to raise the penalty therefor or to clearly define and delimit the other offenses to be considered as absorbed thereby, so that if it cannot be conveniently utilized as the umbrella for every sort of illegal activity undertaken in its name. The Court has no power to effect such change, for it can only interpret the law as it stands at any given time, and what is needed lies beyond interpretation. Hopefully, Congress will perceive the need for promptly seizing the initiative in this matter, which is purely with in its province,” And significantly the said amendment to Art. 135 of the Rev. Penal Code was made at around the time the ruling in Salazar was handled down, obviously to neutralize the Hernandez and the Salazar rulings. The amendment was sort of a rider to the coup d’etat law, Rep. Act No 6968.
SUGGESTED ANSWER:
If I were the prosecutor, I would charge Joselito and Vicente with the crime of rebellion, considering that the killers were members of the liquidation squad of the New People’s Army and the killing was upon orders of their commander; hence, politically-motivated. This was the ruling in People vs. Avila, 207 SCRA 1568 involving identical facts which is a movement taken judicial notice of as engaged in rebellion against the Government.
Violation of Domicile vs. Trespass to Dwelling (2002)
What is the difference between violation of domicile and trespass to dwelling? (2%)
SUGGESTED ANSWER:
The differences between violation of domicile and trespass to dwelling are; 1) The offender in violation of domicile is a public
officer acting under color of authority; in trespass to dwelling, the offender is a private person or public officer acting in a private capacity.
2) Violation of domicile is committed in 3 different ways: (1) by entering the dwelling of another against the will of the latter; (2) searching papers and other effects inside the dwelling without the previous consent of the owner; or (3) refusing to leave the premises which he entered surreptitiously, after being required to leave the premises.
3) Trespass to dwelling is committed only in one way; that is, by entering the dwelling of another against the express or implied will of the latter.