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Police offered money for the accused to buy illegal drugs

Persida Acosta

Dear PAO,
I have a close friend. He used to work as a “striker” or errand boy in a police station near us. He left the job when he found a new one as a factory worker, but was recently laid off by the factory. He confessed to me that he was offered a good pay by a police intelligence officer in exchange of acting as a poseur-buyer. The entrapment operation pushed through and it was successful. But, to his dismay, he was among those arrested by the police. He is now in detention. Please enlighten us on his possible defense, if there’s any.

Dear Clark,
In order to be acquitted from the crime, your friend may set up the defense of instigation.

In People vs Apere (GR 178065, Feb. 20, 2013), the Supreme Court, speaking through Chief Justice Lucas Bersamin, explained the nature and difference between instigation and entrapment, thus:

“Instigation takes place when a peace officer induces a person to commit a crime. Without the inducement, the crime would not be committed. Hence, it is exempting by reason of public policy; otherwise, the peace officer would be a co-principal. It follows that the person instigating must not be a private person, because he will be liable as a principal by inducement. On the other hand, entrapment signifies the ways and means devised by a peace officer to entrap or apprehend a person who has committed a crime. With or without the entrapment, the crime has been committed already. Hence, entrapment is not mitigating. Although entrapment is sanctioned by law, instigation is not. The difference between the two lies in the origin of the criminal intent — in entrapment, the mens rea originates from the mind of the criminal, but in instigation, the law officer conceives the commission of the crime and suggests it to the accused, who adopts the idea and carries it into execution.”

In People vs Legaspi (GR 173485, Nov. 23, 2011), penned by Chief Justice Teresita Leonardo de Castro, the Supreme Court further distinguished, thus:

“Where the criminal intent originates in the mind of the instigating person and the accused is lured into the commission of the offense charged in order to prosecute him, there is instigation and no conviction may be had.

Where, however, the criminal intent originates in the mind of the accused and the criminal offense is completed, even after a person acted as a decoy for the state, or public officials furnished the accused an opportunity for the commission of the offense, or the accused was aided in the commission of the crime in order to secure the evidence necessary to prosecute him, there is no instigation and the accused must be convicted. The law in fact tolerates the use of decoys and other artifices to catch a criminal.

“When set up as a defense, instigation is considered an absolutory cause. According to Luis Reyes, Revised Penal Code, Book I (2017, pp. 251), “Absolutory Causes are those causes where the act committed is a crime but for reasons of public policy and sentiment there is no penalty imposed.”

Be it noted that the defense of denial cannot co-exist with instigation. Hence, if your friend alleges instigation as a defense, he has to admit the commission of the crime. In the abovementioned case of Legaspi, the Supreme Court explained:

“While instigation is a positive defense, it partakes of the nature of a confession and avoidance. In instigation, the crime is actually performed by the accused, except that the intent originates from the mind of the inducer. Thus, it is incompatible with the defense of denial, where the theory is that the accused did not commit the offense at all.” (Underscoring supplied)

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]

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