a. Preparatory and Overt Acts

Definition of Attempted Trafficking

Where there are acts to initiate the commission of a trafficking offense but the offender failed to or did not execute all the elements of the crime, by accident or by reason of some cause other than voluntary desistance, such overt acts shall be deemed as an attempt to commit an act of trafficking in persons. As such, an attempt to commit any of the offenses enumerated in Section 4 of this Act shall constitute attempted trafficking in persons.

Attempted Trafficking where the victim is a child Any of the following acts shall also be deemed as attempted trafficking in persons where victim is a child:

• Facilitating the travel of a child who travels alone to a foreign country or territory without valid reason therefor and without the required clearance or permit from the Department of Social Welfare and Development, or a written permit or justification from the child’s parent or legal guardian;
• Executing, for a consideration, an affidavit of consent or a written consent for adoption;
• Recruiting a woman to bear a child for the purpose of selling the child;
• Simulating a birth for the purpose of selling the child; and
• Soliciting a child and acquiring the custody thereof through any means from among hospitals, clinics, nurseries, daycare centers, refugee or evacuation centers, and low-income families, for the purpose of selling the child. (Sec. 4-A)

Necessity of public uprising and taking up of arms

A public uprising and the taking up of arms are necessary as overt acts to constitute rebellion. However, taking part in the clash of arms is not necessary to be convicted of rebellion.

Acts of Lasciviousness and Attempted Rape, Distinguished

Cases on Acts of Lasciviousness

• In the absence of convincing proof that the penis had slid into the female organ, rape was not committed. Where the victim merely stated that she was carried around the sala with appellant’s penis “touching” her vagina, it would not be right to conclude that the act of the penis “touching” the vagina was an entry or penetration, even slightly, of the labia majora or the labia minora of the pudendum. The appellant is guilty of acts of lasciviousness and not rape. (People v. Palma, G.R. No. 148869- 74)
• The appellant’s act of directing Analyn to remove her lower apparel constitutes an act of lasciviousness under Article 336 of the RPC, and not rape. (People v. Aquino, G.R. No. 139181)

Extent of Aid or Comfort

It must be a deed or physical activity, such as acts furnishing the enemy with arms, troops, supplies, information or means of transportation, and not merely a mental operation. (REYES, BOOK TWO, p. 7)

The overt act must be intentional. There is no treason through negligence. (REYES, BOOK TWO, p. 11)

Giving information to, or commandeering foodstuffs for, the enemy is evidence of both adherence and aid or comfort. (REYES, BOOK TWO, p. 7)

Effect when efforts to aid not successful

Not essential that the effort to aid be successful, provided overt acts are done which if successful would advance the interest of the enemy (People v Alarcon, GR No. L-407)

Ways to prove:

• Treason (Overt act of giving aid or comfort)
• Testimony - at least 2 witnesses to the same overt act; or
• Judicial confession of the accused in open court.
• Adherence
• Testimony - one witness sufficient;
• Nature of act itself; or
• Circumstances surrounding the act.

Two-witness rule:

Testimonies need not be identical, but must relate to the same overt act (Hauft v. United States, 67 S. Ct. 874). It is sufficient that the witnesses are uniform in their testimonies on the overt act; not necessarily that there be a corroboration between them on the point they testified on (People v. Concepcion G.R. No. L-1853).

The two-witness rule is “severely restrictive”; hence, each of the witnesses must testify to the whole overt act; or if it is separable, there must be two witnesses to each part of the overt act (People v. Escleto, G.R. No. L-1006).

Punishable Acts:

• Challenging another to a duel;
• Inciting another to give or accept a challenge to a duel; and
• Scoffing at or decrying another publicly for having refused to accept a challenge to fight a duel

Instances when preparatory acts punishable

Art.136 provides for instances when preparatory acts are deemed punishable by law.

Punishable Acts:

• Making or introducing into the country implements and instruments for counterfeiting/falsification
• Possessing (including constructively, whether from actual ownership or mere control) items made or imported by another person, with intent to use the same

Series

It refers to two (2) or more overt or criminal acts falling under the same category of enumeration found in the definition of “ill-gotten wealth.”

Example: Misappropriation, malversation and raids on the public treasury, all of which falling under item (1) in the enumeration under the definition of “illgotten wealth.” (Estrada v. Sandiganbayan, G.R. No. 148560, 2001)

Premeditation must be "evident"

There must be evidence showing that the accused meditated and reflected on his intention between the time when the crime was conceived by him and the time it was actually perpetrated. (People vs. Carillo, G.R. No. L-283)

Hence, absent a clear and positive proof of the overt act of planning the crime, mere presumptions and inferences thereon, no matter how logical and probable, would not be enough. (People vs. Agramon, G.R. No. 212156, J. CAGUIOA)