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2007 BAR EXAMINATION

I (10%)

What are the penalties that may be served simultaneously?

SUGGESTED ANSWER:

The penalties that may be served simultaneously are imprisonment/ destierro and:

1.

2.

3.

4.

5.

6.

Perpetual absolute disqualification;

Perpetual special disqualification;

Temporary absolute disqualification;

Temporary special disqualification;

Suspension from public office, the right to vote and be voted for, and the right to follow a profession or calling;

Fine; and any principal penalty with its accessory penalties.

II (10%)

Tuburcio asked Anastacio to join their group for a "session". Thinking that it was for a mahjong session, Anastacio agreed. Upon reachingTiburcio'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.

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SUGGESTED ANSWER:

Anastacio may not be charged of any crime.

Sec. 7 of Rep. Act 9165 on the Comprehensive Dangerous Drugs of2002 punishes employees and visitors ofa den, dive or resort where'dangerous drugs are used in any form. But for a visitor of such place to commit the crime, it is a requisite that he "is aware of the nature of the place as such and shall knowingly visit the same." These requisites are absent in the facts given.

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 customers' 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.

SUGGESTED ANSWER:

Jervis and Marlon committed the crime of robbery, while Jonathan committed the special complex crime of robbery with homicide.

Jervis and Marlon are criminally liable for the robbery only, because that.was the crime conspired upon and actually committed by them, assuming that the taking of the cellphones and the cash from the bank's customers was effected with intimidation. They will not incur liability for the death of the pedestrian because they have nothing to do with it. Only Jonathan will incur liability for the death of the pedestrian, aside from the

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robbery, because he alone brought about such death. Although the death caused was not intentional but accidental, it shall be a component of the special complex crime ofrobberywith homicide because it was committed in the course of the commission of the robbery.

ALTERNATIVE ANSWER:

Jervis, Marlon and Jonathan committed robbery with homicide, because there was conspiracy among them to commit the robbery and the death of the pedestrian was caused on the occasion of the robbery. Even though the death was accidental, it is enough that such death was caused by any of the robbers' felonious act and on the occasion of the commission of the robbery (People v. Guiapar, 129 SCRA 539 [1984]).

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. Macky was charged with murder for the death of Ken.

The court found that Ken died under exceptional circumstances and exonerated Macky of murder but sentenced him to destierro, conformably with Article 24 7 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 Mar::ky to pay indemnity even though he was exonerated of murder? Explain your answer.

SUGGESTED ANSWER:

(a) No, the court did not act correctly in ordering the accused to indemnify the victim. Since the killing of

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Ken was committed under the exceptional circumstances in Article 247, Revised Penal Code, it is the consensus that no crime was committed in the light of the pronouncement in People v. Cosicor(79 Phil. 672 [1947]) that banishment (destierro) is intended more for the protection of the offender rather than as a penalty. Since the civil liability under the Revised Penal Code is the consequence of criminal liability, there would be no legal basis for the award of in9.emnity when there is no criminal liability.

ALTERNATIVE ANSWER:

Yes, because the crime punishable by destierro was committed, which is death under exceptional circumstances under Art. 247 of the Revised Penal Code.

(b) While serving his sentence, 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 use of prohibited substances? Explain your answer.

SUGGESTED ANSWER:

(b) No, Macky is not entitled to the benefit of the Indeterminate Sentence Law (Act 4103, as amended) for having evaded the sentence which banished or placed him on destierrro. Sec. 2 of the said law expressly provides that the law shall not apply to those who shall have "evaded sentence".

ALTERNATIVEANSWER:

No, because the penalty for u,se of any dangerous drug by a first offender is not _imprisonment but rehabilitation in a government center for a minimum period of six (6) months (Sec. 15, R.A. 9165). The Indeterminate Sentence Law does not apply when the penalty is imprisonment not exceeding one year.

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v (10%)

(a) Distinguish between an accomplice and a conspirafoi-.

SUGGESTED ANSWER:

(a) The distinctions between an accomplice and a conspirator are:

1. An accomplice incurs criminal liability by merely cooperating in the execution of the crime without participating as a principal, by prior or simultaneous acts; whereas a conspirator participates in the commission of a crime as a co-principal.

2. An accomplice incurs criminal liability in an individual capacity by his act alone of cooperating in the execution of the crime; while a conspirator incurs criminal liability not only for his individual acts in the execution of the crime but also for the acts of the other participants in the commission of the crime collectively. The acts of the other participants in the execution of the crime are considered also as acts of a conspirator for purposes of collective criminal responsibility.

3. An accomplice participates in the execution of a crime when the criminal design or plan is already in place; whereas a conspirator participates in the adoption or making of the criminal design.

4. An accomplice is subjected to a penalty one degree lower than that of a principal; whereas a conspirator incurs the penalty of a principal.

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(b) What are the three (3) classes of offenders in the crime of qualified seduction? Give an example or

each.

SUGGESTED ANSWER:

(b) The three ( 3) classes of offenders in the crime of

qualified seduction are:

1. Those who exercise moral influence over the victim, such as a priest who acts as spiritual adviser of the victim, or a teacher in the school where the victim is enrolled;

2. A brother or ascendant by consanguinity of the victim, such as her uncle; and

3. Those who are regarded as "domestic" in relation to the victim, enjoying the confidence and intimacy shared by members of the same household, such as household helpers and boarders living under the same roof and with same household as the victim.

ALTERNATIVEANSWER:

The three (3) classes of offenders in the crime of qualified seduction are:

1. Those who abuse their authority. Examples: person in public authority, guardian, teacher or a person who, in any capacity, is entrusted with the education or custody of th~ woma,n seduced.

2.

3.

Those who abuse the confidence reposed on them. Examples: priest, house servant,

domestics.

Those who abuse their relationship. Examples: a brother who seduced his sister; ascendant who

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seduced his descendant. (Article 337, Revised Penal Code)

VI (10%)

What are the different acts of inciting to sedition?

SUGGESTED ANSWER:

The different acts which constitute the crime of inciting to sedition are:

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2.

3.

4.

5.

Inciting others through speeches, writings, banners and other media of representation to commit acts which constitute sedition;

Uttering seditious words, speeches or circulating scurrilous libels against the Government of the Philippines or any of its duly constitutc:d authorities, which tend to disturb or obstruct the performance of official functions, or which tend to incite others to cabal and meet for unlawful purposes;

Inciting through the same media of representation rebellious conspiracies or riots;

Stirring people to go against lawful authorities, or disturb the peace and public order of the community or of the Government; or

Knowingly concealing any of the aforestated evil practices (Art. 142, Rev. Penal Code).

VII (10%)

Eddie brought his son Randy to a local faith.healer known as "Mother Hirnala." He was diagnosed by the faith.healer as being possessed by an evil spirit. Eddie thereupon authorized the conduct of a "treatment" calculated

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possession, and having committed the crimes with grave abuse of confidence, it is qualified theft.

The falsification is a separate crime from the theft because it was not committed as a necessary means to commit the theft but resorted to only to hide, or conceal the unlawful taking.

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 the 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

SUGGESTED ANSWER:

The crime committed by Rafael is Simple Negligence Resulting in Less Serious Physical Injuries. Rafael is a security guard and was on duty when he discharged the firearm. The dischai;ge of the firearm was not calculated to cause alarm or danger but simply to ward off the unruly crowd which persisted in pushing forward, thereby challenging the duty he wast<;> fulfill there. The discharge of the firearm, therefore, should neither constitute a crime of Alarms and Scandal under Art. 155 of the Revised Penal Code nor may such discharge amount to a crime of Illegal Discharge of Firearms under Art. 254 of the Code since it was not directed towards a particular person when the firearm was discharged.

However, the physical injuries resulting from the discharge of the firearm betrays a lack of precaution in a situation where the danger to the discharge of the firearm is not clearly manifest, thus considered as simple

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imprudence only. The crime committed is Simple Imprudence Resulting In Less Serious Physical Injuries, since the physical injuries required only twelve ( 12) days of medical attention.

ALTERNATIVE ANSWER:

The crime is reckless imprudence resulting in less serious physical injuries, because the discharge of the firearm was not necessary under the circumstances and therefore, Rafael should be aware of the possibility of injuries that could result from such discharge of the firearm.

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 rnarket 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/:;; _did Giovanni commit, if any? Explain your answer?

SUGGESTED ANSWER:

The crime committed by Giovanni is light coercion under Art. 287 of the Rev. Penal Code, commonly referred to as unjust vexation. Althop.gh what was done by Giovanni could reasonably be assumed as a retaliation to the lessee's refusal to pay rent, absent any clear violence in the premises, such would not bring about a case of grave coercion. The situation should be interpreted

· · liberally in favor of the offender. The rule of pro reo precludes any finding for grave coercion, because it would be against the offender.

The written warning which states "or else something may happen to you" is so equivocal that it may not be

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to drive the "spirit" from the boy's body. Unfortunately, the procedure conducted resulted in the boy's death.

The faithhealer and three others who were part of the healing ritual \Vere charged with murder and convicted by thf' lower court. If you were the appellate court Justice, would you sustain the convictiop upon appeal? Explain yQur answer.

SUGGESTED ANSWER:

No, the conviction for murder should not be sustained, because there is no indication that the accused acted with intent to kill Randy. On the contrary, the facts show that the accused acted to "treat" the victim in a way of driving the evil spirit which was believed to have "possessed" him. Considering that proximate cause of the victim's death was the healing ritual done by the accused which is not recognized in law as legitimate, the accused are criminally liable for the victim's death. As they may have overdone the "heali~~ ritm:'l" they conducted on the victim's body, causing the latter's death, although the intent to kill was absent, the accused may be held criminally liable for Reckless Imprudence Resulting in Homicide.

ALTERNATIVE ANSWER:

No, because none of the circumstances qualifying the killing to murder in Art. 248 attended the crime.

The faithhealer and his co-accused should only be liable for homicide, because they are not authorized by law to practice medicine and were therefore acting illegally although the wrongful act done was different from what they intended.

VIII (10%)

Fe is the managei- of a rice mill in Bulacan. In order to support a gambling debt, Fe made it appear that the rice mill

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was earning less than it actually was by writing in a "talaan"

or ledger a figure lower than what vvas collected and paid by their c:ustomers. Fe then pocketed the difference. What crime/ s did Fe commit, if any? Explain your ans'wer.

SUGGESTED ANSWER:

If the "talaan" or ledger which Fe made to show a falsehood was a private document, the only crime that Fe committed was estafa thru abuse of confidence or unfaithfulness. Criminal liability for falsification of a private document does not arise without damage or at least proof of intent !o cause damage. It cannot co-exist with the crime of estafa which also essentially requires damage or at least proof of intent to cause damage. Since the "talaan" was falsified to cover-up or conceal the misappropriation of the amount involved, whatever damage or intent to cause damage attends the falsification, it will be the same damage or intent to cause damage that will attend the estafa.

If such "talaan" or ledger was a commercial document, damage or proof of intent to cause damage is not necessary. The falsification alone if done with intent to pervert the truth, would bring about criminal liability for falsification of a commercial document. Damage or intent to cause damage, would sustain the estafa independently of the falsification of the commercial document. In this case, two (2) separate crimes are committed; namely, estafa and falsification of the commercial document. The falsification should not be complexed with the estafa since it was not committed as a necessary means to commit the estafa but rather resorted to, to conceal or hide the misappropriation of the amount she pocketed.

ALTERNATIVE ANSWER:

The crimes committed by Fe are theft and falsification of private document because Fe's possession of the proceeds of the rice mill was only physical, not juridical,

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interpreted as felonious. A crime is never presumed; it is the contrary that is presumed.

ALTERNATIVE ANSWER:

The crim,e committed by Giovanni is grave coercion because barricading one or'the sides of the market stall was an act of violence deliberately done. It is not only an act of unjust vexation or light coercion but of grave coercion.

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2006 BAR EXAMINATION

I

Motive is essential in the determination of the commission of a crime and the .liabilities of the perpetrators.

What are the instances where proof of motive is not essential or required lo justify conviction of an accused? Give at least 3 instances. 5%

SUGGESTED ANSWER:

Proof of motive is not required -

a) Where the offender is positively identified or

b) has admitted the commission of the crime (People v. Yurong, 133 SCRA 26 [19841 citing People v. Realon, et. al., 94 SCRA 422 [1980]);

c) Where the crime committed is a malum prohibitum; or

d) Where the crime is the product of culpa or criminal negligence.

II

1. When can a Filipino citizen residing in this country use an alias legally? Give 3 instances. 2.5%

2. Under what situations may a private person enter any dwelling, residence, or other establishments without being liable for trespass to dwelling? 2.5%

SUGGESTED ANSWER:

Yes, an alias may be legally used -

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