TABLE OF CONTENTS
TABLE OF CONTENTS
B. STAGES OF EXECUTION ........................................ 20
CRIMINAL LAW 1
DEVELOPMENT OF A CRIME ................................ 20 DEVELOPMENT OF A CRIME ................................. 21
I.FUNDAMENTAL PRINCIPLES ........................... 2
B. 1. ATTEMPTED STAGE....................................... 22
A. DEFINITION OF CRIMINAL LAW ..............................2
B. 2. FRUSTRATED STAGE.................................... 23
A. 1. MALA IN SE AND MALA PROHIBITA ...............2
CRIMES WHICH DO NOT ADMIT OF FRUSTRATED STAGE .................................................................... 24
I. CRIMINAL LAW V. CRIMINAL PROCEDURE ........3 CONSTRUCTION OF PENAL LAWS ........................ 4
B. 3. CONSUMMATED STAGE ............................... 25
B. SCOPE OF APPLICATION AND CHARACTERISTICS OF PHILIPPINE CRIMINAL LAW .................................. 4
B. CONSPIRACY AND PROPOSAL............................. 26
GENERALITY ........................................................... 4
C. MULTIPLE OFFENDERS (DIFFERENCES, RULES, EFFECTS) ............................................................... 30
TREATY STIPULATIONS ......................................... 5
C. 1. RECIDIVISM ..................................................... 31
LAWS OF PREFERENTIAL APPLICATION .............. 5
C. 2. HABITUALITY (REITERACION)...................... 32
TERRITORIALITY ..................................................... 6
C. 3. QUASI-RECIDIVISM ....................................... 32
PROSPECTIVITY ...................................................... 9 EFFECTS OF REPEAL/AMENDMENT ..................... 9 LEGALITY ................................................................. 9 CONSTITUTIONAL LIMITATIONS ON THE POWER OF CONGRESS TO ENACT PENAL LAWS .............. 9 EQUAL PROTECTION.............................................. 9 DUE PROCESS ........................................................ 9 CRUEL OR INHUMAN PUNISHMENT ................... 10
II. FELONIES ..................................................... 10 DIFFERENTIATING FELONIES, OFFENSE, MISDEMEANOR AND CRIME ..................................... 10 CLASSIFICATION OF FELONIES ................................. 10 INTENTIONAL VS. CULPABLE FELONIES .............. 11
C. 4. HABITUAL DELINQUENCY ........................... 32 D.
CONTINUING CRIMES ..................................... 33
E. COMPLEX CRIMES AND SPECIAL COMPLEX CRIMES ....................................................................... 35 E. 1. COMPLEX CRIMES ......................................... 35 TWO KINDS OF COMPLEX CRIMES ...................... 36 E. 2. SPECIAL COMPLEX/COMPOSITE CRIMES .. 38
II. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY.......................................................... 39 A. JUSTIFYING CIRCUMSTANCES ............................. 39 TEST OF REASONABLENESS ...............................40 JUSTIFYING VS. EXEMPTING CIRCUMSTANCE ... 46
B. ELEMENTS OF CRIMINAL LIABILITY ..................... 12
ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT OF 2004 (RA 9262)..................... 46
DOLO ...................................................................... 13
B. EXEMPTING CIRCUMSTANCES ............................. 47
CATEGORIES OF CRIMINAL INTENT (GENERAL VS. SPECIFIC INTENT) .................................................. 14
EXEMPTING CIRCUMSTANCES: ............................ 47
DISTINCTION BETWEEN INTENT, DISCERNMENT AND MOTIVE .......................................................... 14 WRONGFUL ACT DIFFERENT FROM THAT INTENDED .............................................................. 15 PROXIMATE CAUSE V. IMMEDIATE CAUSE V. REMOTE CAUSE..................................................... 16
PAR. 1. INSANITY OR IMBECILITY ......................... 47 PAR. 2. & 3. MINORITY (SUPERSEDED BY RA 9344) ...................................................................... 48 PAR. 4. ACCIDENT ..................................................51 PAR. 5. IRRESISTIBLE FORCE ...............................51 PAR. 6. UNCONTROLLABLE FEAR ........................51
CULPA..................................................................... 18
PAR. 7. INSUPERABLE OR LAWFUL CAUSES...... 52
DOCTRINES CONCERNING CULPABLE CRIMES . 18
C. MITIGATING CIRCUMSTANCES ............................ 52
A. IMPOSSIBLE CRIME ............................................... 19
PAR. 1. INCOMPLETE JUSTIFYING OR EXEMPTING CIRCUMSTANCES ................................................. 53
MODIFIED CONCEPT OF IMPOSSIBLE CRIME .... 20
PAR. 2. UNDER 18 OR OVER 70 YEARS OF AGE . 54
PAR. 3. NO INTENTION TO COMMIT SO GRAVE A WRONG (PRAETER INTENTIONEM) ..................... 54 PAR. 4. SUFFICIENT PROVOCATION OR THREAT ............................................................................... 55 PAR. 5. IMMEDIATE VINDICATION OF A GRAVE OFFENSE ............................................................... 56
CRIMINAL LAW 2 TITLE I. CRIMES AGAINST NATIONAL SECURITY AND THE LAW OF NATIONS ............................ 137 CRIMES AGAINST SECURITY: ................................... 137
PAR. 6. PASSION OR OBFUSCATION (ARREBATO Y OBCECACION)......................................................57
CRIMES AGAINST THE LAW OF NATIONS ................ 137
PAR. 7. VOLUNTARY SURRENDER AND CONFESSION OF GUILT ....................................... 58
ARTICLE 114 - TREASON ...................................... 137
CRIMES AGAINST NATIONAL SECURITY................. 137
PAR. 8. PHYSICAL DEFECTS ................................ 60
ARTICLE 115 - CONSPIRACY AND PROPOSAL TO COMMIT TREASON ............................................. 140
PAR. 9. ILLNESS .................................................... 60
ARTICLE 116 - MISPRISION OF TREASON ........... 141
PAR. 10. ANALOGOUS MITIGATING CIRCUMSTANCES .................................................. 61
ARTICLE 117 – ESPIONAGE .................................. 141
D. AGGRAVATING CIRCUMSTANCES ........................ 61 D.1. GENERIC ......................................................... 63 D.2. QUALIFYING ...................................................79 E. ALTERNATIVE CIRCUMSTANCES ......................... 83 E.1. RELATIONSHIP ............................................... 84 E.2. INTOXICATION ............................................... 85 F. ABSOLUTORY CAUSE ........................................... 85 F.1. INSTIGATION .................................................. 85
ESPIONAGE .....................................................142 TREASON ........................................................142 SPECIAL LAW ........................................................... 142 COMMONWEALTH ACT NO. 616 ........................ 142 CRIMES AGAINST THE LAW OF NATIONS .............. 144 ARTICLE 118 - INCITING TO WAR OR GIVING MOTIVES FOR REPRISALS.................................. 144 ARTICLE 119 - VIOLATION OF NEUTRALITY....... 145
F.2. PARDON ..........................................................87
ARTICLE 120 - CORRESPONDENCE WITH HOSTILE COUNTRY............................................................. 145
F.3. OTHER ABSOLUTORY CAUSES ....................87
ARTICLE 121 - FLIGHT TO ENEMY'S COUNTRY .. 145
F.4. ACTS NOT COVERED BY LAW AND IN CASE OF EXCESSIVE PUNISHMENT ...............................87 G. EXTENUATING CIRCUMSTANCES ................... 88
ARTICLE 122 - PIRACY IN GENERAL AND MUTINY ON THE HIGH SEAS OR IN PHILIPPINE WATERS .............................................................................. 146
G.1. PRINCIPAL ...................................................... 89
PIRACY ........................................................... 146
G.2. ACCOMPLICE ................................................. 92
MUTINY .......................................................... 146
G.3. ACCESSORIES ............................................... 92
ARTICLE 123 - QUALIFIED PIRACY ..................... 147
G.4. DECREE PENALIZING OBSTRUCTION OF APPREHENSION AND PROSECUTION OF CRIMINAL OFFENDERS [P.D. 1829] ..................... 95
SPECIAL LAW ............................................................ 147
E. PENALTIES ...................................................96
RA 6235: ANTI-HIJACKING LAW......................... 148
F. MODIFICATION AND EXTINCTION OF CRIMINAL LIABILITY....................................... 130
RA 9372: HUMAN SECURITY ACT OF 2007 ....... 149
PD 532: ANTI-PIRACY AND ANTI-HIGHWAY ROBBERY .............................................................. 147
TITLE II. CRIMES AGAINST FUNDAMENTAL LAWS OF THE STATE ...................................... 150 ARTICLE 124 - ARBITRARY DETENTION ............ 150 ARTICLE 125 - DELAY IN THE DELIVERY OF DETAINED PERSONS TO THE PROPER JUDICIAL AUTHORITIES .......................................................152 ARTICLE 126 - DELAYING RELEASE ....................153
ARTICLE 127 – EXPULSION ................................. 153 ARTICLE 128 - VIOLATION OF DOMICILE ........... 153 ARTICLE 129 - SEARCH WARRANTS MALICIOUSLY OBTAINED, AND ABUSE IN THE SERVICE OF THOSE LEGALLY OBTAINED ............................... 154
ARTICLE 140 - PERSONS LIABLE FOR SEDITION .............................................................................. 165 ARTICLE 141 - CONSPIRACY TO COMMIT SEDITION .............................................................................. 165 ARTICLE 142 – INCITING TO SEDITION .............. 165
ARTICLE 130 - SEARCHING DOMICILE WITHOUT WITNESSES .......................................................... 155
CHAPTER II - CRIMES AGAINST POPULAR REPRESENTATION................................................... 166
ARTICLE 131 - PROHIBITION, INTERRUPTION AND DISSOLUTION OF PEACEFUL MEETINGS .......... 155
ARTICLE 143 - ACTS TENDING TO PREVENT THE MEETING OF THE CONGRESS OF THE PHILIPPINES AND SIMILAR BODIES .................. 166
ARTICLE 132 - INTERRUPTION OF RELIGIOUS WORSHIP ............................................................. 156 ARTICLE 133 - OFFENDING THE RELIGIOUS FEELINGS ............................................................. 156 SPECIAL LAWS.......................................................... 157 RA 9372: HUMAN SECURITY ACT ....................... 157 RA 9745: ANTI-TORTURE ACT ............................ 158
TITLE III. CRIMES AGAINST PUBLIC ORDER ... 160
ARTICLE 144 - DISTURBANCE OF PROCEEDINGS ............................................................................... 167 ARTICLE 145 - VIOLATION OF PARLIAMENTARY IMMUNITY ............................................................. 167 CHAPTER III – ILLEGAL ASSEMBLIES AND ASSOCIATIONS ......................................................... 167 ARTICLE 146 - ILLEGAL ASSEMBLIES ................. 167 ARTICLE 147 - ILLEGAL ASSOCIATIONS ............ 168
CHAPTER I. REBELLION, COUP D’ETAT, SEDITION AND DISLOYALTY ...................................................... 161
ILLEGAL ASSEMBLY .........................................168
ARTICLE 134 - REBELLION /INSURRECTION ...... 161
ILLEGAL ASSOCIATION ....................................168
INSURRECTION ............................................... 162
CHAPTER IV - ASSAULT UPON AND RESISTANCE AND DISOBEDIENCE TO, PERSONS IN AUTHORITY AND THEIR AGENTS .................................................170
SEDITION ........................................................ 162
ARTICLE 148 - DIRECT ASSAULT ........................170
ARTICLE 134-A - COUP D’ÉTAT ........................... 162
ARTICLE 152 - PERSONS IN AUTHORITY AND AGENTS OF PERSONS IN AUTHORITY ................171
REBELLION ..................................................... 162
ARTICLE 135 - PENALTY FOR REBELLION, INSURRECTION OR COUP D’ÉTAT ..................... 162 ARTICLE 136 - CONSPIRACY AND PROPOSAL TO COMMIT COUP D’ ÉTAT, REBELLION OR INSURRECTION.................................................... 163 ARTICLE 137 - DISLOYALTY OF PUBLIC OFFICERS OR EMPLOYEES ................................................... 163 ARTICLE 138 - INCITING TO REBELLION OR INSURRECTION.................................................... 163
PROPOSAL TO COMMIT REBELLION ............... 164 INCITING TO REBELLION................................. 164
PUBLIC OFFICER (ART. 203) .............................171 PERSONS IN AUTHORITY (ART. 152) .................171 AGENTS OF A PERSON IN AUTHORITY (ART. 152) .........................................................................171 ARTICLE 149 - INDIRECT ASSAULT ..................... 172 ARTICLE 150 - DISOBEDIENCE TO SUMMONS ISSUED BY CONGRESS, ITS COMMITTEES OR SUBCOMMITTEES, BY THE CONSTITUTIONAL COMMISSIONS, ITS COMMITTEES, SUBCOMMITTEES OR DIVISIONS........................ 172
PROPOSAL ...................................................... 164
ARTICLE 151 - RESISTANCE AND DISOBEDIENCE TO A PERSON IN AUTHORITY OR THE AGENTS OF SUCH PERSONS ................................................... 173
ARTICLE 139 - SEDITION ..................................... 164
SERIOUS DISOBEDIENCE ................................. 173
REBELLION ..................................................... 165
DIRECT ASSAULT ............................................. 173
SEDITION ........................................................ 165
CHAPTER V - PUBLIC DISORDERS .......................... 173
COUP D’ÉTAT .................................................. 165
ARTICLE 153 - TUMULTS AND OTHER DISTURBANCES OF PUBLIC ORDER .................. 173
CONSPIRACY .................................................. 164
TREASON ........................................................ 165
ARTICLE 154 - UNLAWFUL USE OF MEANS OF PUBLICATION AND UNLAWFUL UTTERANCES. 174 ARTICLE 155 - ALARMS AND SCANDALS .......... 174
ARTICLE 168 - ILLEGAL POSSESSION AND USE OF FALSE TREASURY OR BANK NOTES AND OTHER INSTRUMENTS OF CREDIT ................................. 189 ARTICLE 169 - HOW FORGERY IS COMMITTED 189
ARTICLE 156 - DELIVERING PRISONERS FROM JAIL ....................................................................... 175
ACTS OF FALSIFICATION......................................... 190
CHAPTER VI - EVASION OF SERVICE OF SENTENCE ................................................................................... 175
ARTICLE 170 - FALSIFICATION OF LEGISLATIVE DOCUMENTS ....................................................... 190
ARTICLE 157 - EVASION OF SERVICE OF SENTENCE............................................................ 175
FORGERY ........................................................ 190
ARTICLE 158 - EVASION OF SERVICE OF SENTENCE ON THE OCCASION OF DISORDERS, CONFLAGRATIONS, EARTHQUAKES, OR OTHER CALAMITIES ......................................................... 176 ARTICLE 159 - OTHER CASES OF EVASION OF SERVICE OF SENTENCE .......................................177
VIOLATION OF CONDITIONAL PARDON ........... 177 EVASION OF SERVICE OF SENTENCE ............... 177 CHAPTER VII - COMMISSION OF ANOTHER CRIME DURING SERVICE OF PENALTY IMPOSED FOR ANOTHER PREVIOUS OFFENSE ...............................177 ARTICLE 160 - QUASI RECIDIVISM ......................177 SPECIAL LAWS.......................................................... 178 PD 1866 AS AMENDED BY RA 8294: ILLEGAL POSSESSION OF FIREARMS ............................... 178 COMPREHENSIVE FIREARMS AND AMMUNITION REGULATION ACT................................................. 181 RA 9372: HUMAN SECURITY ACT ............................ 185
TITLE IV. CRIMES AGAINST PUBLIC INTEREST ....................................................................... 185 ACTS OF COUNTERFEITING .................................... 186 ARTICLE 161 - COUNTERFEITING THE GREAT SEAL OF THE GOVERNMENT OF THE PHILIPPINE ISLANDS, FORGING THE SIGNATURE OR STAMP OF THE CHIEF EXECUTIVE .................................. 186 ARTICLE 164 – MUTILATION OF COINS.............. 187 ARTICLE 165 – SELLING OF FALSE OR MUTILATED COIN, WITHOUT CONNIVANCE........................... 188 ARTICLE 166 – FORGING TREASURY OR BANK NOTES OR OTHER DOCUMENTS PAYABLE TO BEARER; IMPORTING AND UTTERING SUCH FALSE OR FORGED NOTES AND DOCUMENTS 188 ARTICLE 167 – COUNTERFEITING, IMPORTING, AND UTTERING INSTRUMENTS NOT PAYABLE TO BEARER ................................................................ 189 ACTS OF FORGERY................................................... 189
FALSIFICATION ............................................... 190 ARTICLE 171 – FALSIFICATION BY PUBLIC OFFICER, EMPLOYEE OR NOTARY OR ECCLESIASTICAL MINISTER ............................... 190 FOUR KINDS OF DOCUMENTS ............................193 PUBLIC AND PRIVATE WRITINGS UNDER THE RULES OF COURT: ................................................193 ARTICLE 172 – FALSIFICATION BY PRIVATE INDIVIDUAL AND USE OF FALSIFIED DOCUMENTS .............................................................................. 194 ARTICLE 173 – FALSIFICATION OF WIRELESS, CABLE, TELEGRAPH AND TELEPHONE MESSAGES, AND USE OF SAID FALSIFIED MESSAGES........................................................... 195 ARTICLE 174 – FALSE MEDICAL CERTIFICATES, FALSE CERTIFCATES OF MERITS OF SERVICE, ETC. .............................................................................. 196 ARTICLE 175 – USING FALSE CERTIFICATES .... 196 ARTICLE 176 – MANUFACTURING AND POSSESSION OF INSTRUMENTS OR IMPLEMENTS FOR FALSIFICATION ........................................... 196 OTHER FALSITIES .................................................... 196 ARTICLE 177 - USURPATION OF AUTHORITY OR OFFICIAL FUNCTIONS......................................... 196 ARTICLE 178 - USING FICTITIOUS AND CONCEALING TRUE NAME .................................. 197
USE OF FICTITIOUS NAME ............................... 197 CONCEALING TRUE NAME ............................... 197 ARTICLE 179 - ILLEGAL USE OF UNIFORMS AND INSIGNIA ............................................................... 197 ARTICLE 180 - FALSE TESTIMONY AGAINST A DEFENDANT ........................................................ 198 ARTICLE 181 - FALSE TESTIMONY FAVORABLE TO THE DEFENDANT ................................................ 198 ARTICLE 182 - FALSE TESTIMONY IN CIVIL CASES .............................................................................. 198
ARTICLE 183 - FALSE TESTIMONY IN OTHER CASES AND PERJURY IN SOLEMN AFFIRMATION .............................................................................. 199
ARTICLE 201 - IMMORAL DOCTRINES, OBSCENE PUBLICATIONS AND EXHIBITIONS AND INDECENT SHOWS ............................. 215
ARTICLE 184 - OFFERING FALSE TESTIMONY IN EVIDENCE ............................................................. 199
ARTICLE 202 - PROSTITUTION (AMENDED BY RA 10158) ................................................ 216
ARTICLE 185 - MACHINATIONS IN PUBLIC AUCTIONS ........................................................... 200
SPECIAL LAWS ............................................. 217
ARTICLE 186 – MONOPOLIES AND COMBINATIONS IN RESTRAINT OF TRADE ...... 200
RA 9208: ANTI-TRAFFICKING IN PERSONS ACT ............................................................... 217
ARTICLE 187 – IMPORTATION AND DISPOSITION OF FALSELY MARKED ARTICLES OR MERCHANDISE MADE OF GOLD, SILVER, OR OTHER PRECIOUS METALS OR THEIR ALLOYS 201
RA 10364 THE EXPANDED ANTITRAFFICKING IN PERSONS ACT OF 2012 .. 218
SPECIAL LAWS.......................................................... 201
TITLE VII. CRIMES COMMITTED BY PUBLIC OFFICERS .................................................223
RA 9194: ANTI-MONEY LAUNDERING ACT ........ 201
CHAPTER 1: PRELIMINARY PROVISIONS . 223
TITLE V. CRIMES RELATIVE TO OPIUM AND OTHER PROHIBITED DRUGS ......................... 204
CHAPTER 2: MALFEASANCE AND MISFEASANCE IN OFFICE .......................... 223
DEFINITION OF IMPORTANT TERMS .................... 204
CHAPTER 3: FRAUDS AND ILLEGAL EXACTIONS AND TRANSACTIONS ............ 223
ACTS PUNISHED ...................................................... 204 PENALTIES FOR UNLAWFUL ACTS ........................ 205 IMMUNITY FROM PROSECUTION AND PUNISHMENT .......................................................... 207 TERMINATION OF GRANT OF IMMUNITY [SEC. 34, ART. II, RA 9165]: ...................................................... 207 CUSTODY AND DISPOSITION OF SEIZED SUBSTANCES ........................................................... 208
TITLE VI. CRIMES AGAINST PUBLIC MORALS ...................................................................211
CHAPTER 4: MALVERSATION OF PUBLIC FUNDS AND PROPERTIES ......................... 223 CHAPTER 5: INFIDELITY OF PUBLIC OFFICERS .................................................... 223 CHAPTER 6: OTHER OFFENSES AND IRREGULARITIES BY PUBLIC OFFICERS ... 223 CHAPTER I: PRELIMINARY PROVISIONS ...... 224 ART. 203 - WHO ARE PUBLIC OFFICERS .. 224
CHAPTER I: GAMBLING AND BETTING ....... 211
CHAPTER II: MALFEASANCE AND MISFEASANCE IN OFFICE .............................. 224
CHAPTER II: OFFENSES AGAINST DECENCY AND GOOD CUSTOMS ................................. 211
ARTICLE 204 - KNOWINGLY RENDERING UNJUST JUDGMENT ................................... 225
CHAPTER 1: GAMBLING AND BETTING ........... 211
ARTICLE 205 - JUDGMENT RENDERED THROUGH NEGLIGENCE ............................ 225
SPECIAL LAWS .............................................. 211 PD 1602: ANTI-GAMBLING ACT ................... 211 RA 9287: INCREASING THE PENALTY FOR ILLEGAL NUMBERS GAMES ....................... 212 LETTER OF INSTRUCTION NO. 816 ............ 212 COCKFIGHTING LAW OF 1974 [PD 449] ..... 213 CHAPTER II: OFFENSES AGAINST DECENCY AND GOOD CUSTOMS ..................................... 215 ARTICLE 200 - GRAVE SCANDAL............... 215
ARTICLE 206 - UNJUST INTERLOCUTORY ORDER ........................................................ 225 ARTICLE 207 - MALICIOUS DELAY IN THE ADMINISTRATION OF JUSTICE.................. 226 ARTICLE 208 - PROSECUTION OF OFFENSES; NEGLIGENCE AND TOLERANCE ..................................................................... 226 ARTICLE 209 – BETRAYAL OF TRUST BY AN ATTORNEY OR A SOLICITOR – REVELATION OF SECRETS ................................................ 226
ARTICLE 210 - DIRECT BRIBERY.................227 ARTICLE 211 - INDIRECT BRIBERY ............. 228 ARTICLE 211-A - QUALIFIED BRIBERY ....... 229 ARTICLE 212 - CORRUPTION OF PUBLIC OFFICIALS ................................................... 229 SPECIAL LAWS ............................................ 230 RA 3019: ANTI-GRAFT AND CORRUPT PRACTICES .................................................. 230 RA 7080: ANTI-PLUNDER ACT .................. 232 PD 46 ........................................................... 234 RA 6713 (CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND EMPLOYEES) ............................................... 234 CHAPTER III: FRAUDS AND ILLEGAL EXACTIONS AND TRANSACTIONS ................ 235 ARTICLE 213 - FRAUD AGAINST THE PUBLIC TREASURY AND SIMILAR OFFENSES ....... 235
ARTICLE 221 - FAILURE TO MAKE DELIVERY OF PUBLIC FUNDS OR PROPERTY ........... 240 ARTICLE 222 - OFFICERS INCLUDED IN THE PRECEDING PROVISIONS ........................... 241 CHAPTER V: INFIDELITY OF PUBLIC OFFICERS ........................................................................... 241 SECTION ONE - INFIDELITY IN THE CUSTODY OF PRISONERS ............................................ 241 ARTICLE 223 - CONNIVING WITH OR CONSENTING TO EVASION ........................ 241 ARTICLE 224 - EVASION THROUGH NEGLIGENCE................................................ 241 ARTICLE 225 - ESCAPE OF PRISONER UNDER THE CUSTODY OF A PERSON NOT A PUBLIC OFFICER ........................................ 242 SECTION TWO - INFIDELITY IN THE CUSTODY OF DOCUMENTS ....................... 242
ARTICLE 214 - OTHER FRAUDS ................. 236
ARTICLE 226 - REMOVAL, CONCEALMENT, OR DESTRUCTION OF DOCUMENTS ........ 242
ART. 215: PROHIBITED TRANSACTIONS ...237
ARTICLE 227 - OFFICER BREAKING SEAL 243
ARTICLE 216 - POSSESSION OF PROHIBITED INTEREST BY A PUBLIC OFFICER ...............237
REVELATION OF SECRETS ....................... 243 BY AN OFFICER ........................................ 243
CHAPTER IV: MALVERSATION OF PUBLIC FUNDS OR PROPERTY ....................................237
(ART. 229) ................................................ 243
ARTICLE 217 - MALVERSATION OF PUBLIC FUNDS OR PROPERTY - PRESUMPTION OF MALVERSATION ..........................................237
REMOVAL, CONCEALMENT OR DESTRUCTION OF DOCUMENTS (ART. 226) ................................................................. 243
MALVERSATION ...................................... 239
ARTICLE 228 - OPENING OF CLOSED DOCUMENTS .............................................. 243
(ART. 217) ................................................. 239 ESTAFA WITH ABUSE OF CONFIDENCE (ART. 315) .......................................................... 239 ARTICLE 218 - FAILURE OF ACCOUNTABLE OFFICER TO RENDER ACCOUNTS ............ 239 ARTICLE 219 - FAILURE OF A RESPONSIBLE PUBLIC OFFICER TO RENDER ACCOUNTS BEFORE LEAVING THE COUNTRY ............. 240 ARTICLE 220 - ILLEGAL USE OF PUBLIC FUNDS OR PROPERTY ............................... 240
MALVERSATION ...................................... 240 (ART. 217) ................................................. 240 TECHNICAL MALVERSATION (ART. 220) . 240
ARTICLE 229 - REVELATION OF SECRETS BY AN OFFICER ................................................ 243 ARTICLE 230 PUBLIC OFFICERS REVEALING SECRETS OF PRIVATE INDIVIDUALS .............................................. 244 CHAPTER VI: OTHER OFFENSES OR IRREGULARITIES BY PUBLIC OFFICERS ....... 244 SECTION ONE - DISOBEDIENCE, ............... 244 REFUSAL OF ASSISTANCE, AND MALTREATMENT OF PRISONERS ............. 244 ARTICLE 231 - OPEN DISOBEDIENCE ........ 244 ARTICLE 232 - DISOBEDIENCE TO THE ORDER OF SUPERIOR OFFICER WHEN SAID
ORDER WAS SUSPENDED BY INFERIOR OFFICER ...................................................... 244 ARTICLE 233 - REFUSAL OF ASSISTANCE 245 ARTICLE 234 - REFUSAL TO DISCHARGE ELECTIVE OFFICE ....................................... 245 ARTICLE 235 - MALTREATMENT OF PRISONERS ................................................. 245 RA 9372: HUMAN SECURITY ACT .............. 246 SECTION TWO ANTICIPATION, PROLONGATION, AND ABANDONMENT OF THE DUTIES AND POWERS OF PUBLIC OFFICE ......................................................... 247 ARTICLE 236 - ANTICIPATION OF DUTIES OF A PUBLIC OFFICER ..................................... 247 ARTICLE 237 PROLONGING PERFORMANCE OF DUTIES AND POWERS ..................................................................... 247
TITLE VIII. CRIMES AGAINST PERSONS .. 250 CHAPTER I: DESTRUCTION OF LIFE ......... 250 CHAPTER II: PHYSICAL INJURIES .............. 250 CHAPTER I DESTRUCTION OF LIFE ............... 250 ARTICLE 246 - PARRICIDE ......................... 250 ARTICLE 247 - DEATH OR PHYSICAL INJURIES UNDER EXCEPTIONAL CIRCUMSTANCES ........................................ 251 ARTICLE 248 - MURDER ............................ 252 ARTICLE 249 - HOMICIDE .......................... 253 ARTICLE 250 - PENALTY FOR FRUSTRATED PARRICIDE, MURDER OR HOMICIDE ....... 254 ARTICLE 251 - DEATH CAUSED IN TUMULTUOUS AFFRAY ............................. 255 ARTICLE 252 - PHYSICAL INJURIES CAUSED IN TUMULTUOUS AFFRAY ......................... 255
ARTICLE 238 - ABANDONMENT OF OFFICE OR POSITION .............................................. 247
ARTICLE 253 - GIVING ASSISTANCE TO SUICIDE ....................................................... 255
ABANDONMENT OF OFFICE OR POSITION ................................................................. 247
ARTICLE 254 - DISCHARGE OF FIREARMS ..................................................................... 256
(ART. 238) ................................................ 247
ARTICLE 255 – INFANTICIDE ..................... 256
DERELICTION OF DUTY............................ 247
ARTICLE 256 - INTENTIONAL ABORTION 257
(ART. 208)................................................ 247
ABORTION ................................................257
SECTION THREE - USURPATION OF POWERS AND UNLAWFUL APPOINTMENTS ........... 247
INFANTICIDE ............................................257
ARTICLE 239 USURPATION OF LEGISLATIVE POWERS ............................... 248 ARTICLE 240 - USURPATION OF EXECUTIVE FUNCTIONS................................................. 248
ARTICLE 257 - UNINTENTIONAL ABORTION ..................................................................... 258 ARTICLE 258 - ABORTION PRACTICED BY THE WOMAN HERSELF OR BY PARENTS . 258
ARTICLE 241 - USURPATION OF JUDICIAL FUNCTIONS................................................. 248
ARTICLE 259 - ABORTION BY A PHYSICIAN OR MIDWIFE AND DISPENSING OF ABORTIVES ................................................. 258
ARTICLE 242 - DISOBEYING REQUEST FOR DISQUALIFICATION .................................... 248
ARTICLE 260 - RESPONSIBILITY OF PARTICIPANTS IN A DUEL ......................... 259
ARTICLE 243 - ORDERS OR REQUEST BY EXECUTIVE OFFICER TO ANY JUDICIAL AUTHORITY ................................................. 248
ARTICLE 261 - CHALLENGING TO A DUEL 259
ARTICLE 244 - UNLAWFUL APPOINTMENTS ..................................................................... 248 ARTICLE 245 - ABUSES AGAINST CHASTITY ..................................................................... 249
CHAPTER II PHYSICAL INJURIES ................... 259 ARTICLE 262 – MUTILATION ..................... 259 ARTICLE 263 - SERIOUS PHYSICAL INJURIES ..................................................................... 260
PHYSICAL INJURIES ................................. 260
ATTEMPTED OR FRUSTRATED HOMICIDE ................................................................. 260
ARTICLE 271 - INDUCING A MINOR TO ABANDON HIS HOME.................................. 281
ARTICLE 264 - ADMINISTERING INJURIOUS SUBSTANCES OR BEVERAGES ................. 262
ARTICLE 272 - SLAVERY ............................. 281
ARTICLE 265 - LESS SERIOUS PHYSICAL INJURIES ..................................................... 262 ARTICLE 266 - SLIGHT PHYSICAL INJURIES AND MALTREATMENT ............................... 262 ARTICLE 266-A - RAPE .............................. 263 (AS AMENDED BY RA 8353) ...................... 263
OLD ANTI-RAPE LAW .............................. 264 RA 8553 ................................................... 264 SPECIAL LAWS ................................................ 267 RA 9262: ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT OF 2004 ....... 267 RA 9775: ANTI-CHILD PORNOGRAPHY ACT OF 2009 ...................................................... 268 RA 8049: ANTI-HAZING LAW .................... 270 RA 7610: SPECIAL PROTECTION OF CHILDREN AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION ACT ......................................................................272 RA 9344: JUVENILE JUSTICE AND WELFARE ACT (AS FURTHER AMENDED BY THE RA 10630 / THE ACT STRENGTHENING THE JUVENILE JUSTICE SYSTEM IN THE PHILIPPINES) ...............................................273 PD 603: CHILD AND YOUTH WELFARE CODE ..................................................................... 274 RA 9372: HUMAN SECURITY ACT OF 2007 ..................................................................... 275
ARTICLE 273 - EXPLOITATION OF CHILD LABOR .......................................................... 281 ARTICLE 274 - SERVICES RENDERED UNDER COMPULSION IN PAYMENT OF DEBT....... 282 CHAPTER II: CRIMES AGAINST SECURITY .... 282 ARTICLE 275 - ABANDONMENT OF PERSONS IN DANGER AND ABANDONMENT OF OWN VICTIM .......................................... 282 ARTICLE 276 - ABANDONING A MINOR ... 282 ARTICLE 277 - ABANDONMENT OF MINOR BY PERSON ENTRUSTED WITH CUSTODY; INDIFFERENCE OF PARENTS .................... 283 ARTICLE 278 - EXPLOITATION OF MINORS ..................................................................... 283 ARTICLE 280 - QUALIFIED TRESPASS TO DWELLING................................................... 284 ARTICLE 281 - OTHER FORMS OF TRESPASS ..................................................................... 286 ARTICLE 282 - GRAVE THREATS ............... 286 ARTICLE 283 - LIGHT THREATS ................ 287 ARTICLE 284 - BOND FOR GOOD BEHAVIOR ..................................................................... 288 ARTICLE 285 – OTHER LIGHT THREATS .. 288 ARTICLE 286 - GRAVE COERCIONS .......... 288 ARTICLE 287 - LIGHT COERCIONS ............ 290 ARTICLE 288 - OTHER SIMILAR COERCIONS ..................................................................... 290
CHAPTER I CRIMES AGAINST LIBERTY ......... 276
ARTICLE 289 - FORMATION, MAINTENANCE, AND PROHIBITION OF COMBINATION OF CAPITAL OR LABOR THROUGH VIOLENCE OR THREATS ................................................ 291
ARTICLE 267 - KIDNAPPING AND SERIOUS ILLEGAL DETENTION ................................. 276
CHAPTER III: DISCOVERY AND REVELATION OF SECRETS ........................................................... 291
ARTICLE 268 - SLIGHT ILLEGAL DETENTION ..................................................................... 279
ARTICLE 290 - DISCOVERING SECRETS THROUGH SEIZURE OF CORRESPONDENCE ...................................................................... 291
TITLE IX. CRIMES AGAINST PERSONAL LIBERTY AND SECURITY ..........................275
ARTICLE 269 - UNLAWFUL ARREST ......... 279 ARTICLE 270 - KIDNAPPING AND FAILURE TO RETURN A MINOR ................................ 280
ARTICLE 291 - REVEALING SECRETS WITH ABUSE OF OFFICE ...................................... 292
ARTICLE 292 - REVELATION OF INDUSTRIAL SECRETS ..................................................... 292
ARTICLE 307 - AIDING AND ABETTING A BAND OF BRIGANDS ................................... 312
SPECIAL LAWS ............................................ 292
CHAPTER 3 THEFT ........................................... 313
RA 4200 (ANTI WIRE TAPPING ACT) ........ 292
ARTICLE 308 - WHO ARE LIABLE FOR THEFT ...................................................................... 313
RA 9327 (HUMAN SECURITY ACT) ............ 293 RA 9208: ANTI-TRAFFICKING IN PERSONS ACT OF 2003 ................................................ 301
ARTICLE 309 – PENALTIES ......................... 314 THE BASIS OF THE PENALTY IN THEFT IS . 314
TITLE X. CRIMES AGAINST PROPERTY ... 303
ARTICLE 310 - QUALIFIED THEFT ............... 314
CHAPTER I: ROBBERY IN GENERAL .............. 303
PD 1612: ANTI-FENCING LAW ..................... 315
ARTICLE 293 - WHO ARE GUILTY OF ROBBERY .................................................... 303
RA 6539: ANTI-CARNAPPING ACT ............. 316 ARTICLE 311 - THEFT OF THE PROPERTY OF THE NATIONAL LIBRARY AND NATIONAL MUSEUM ...................................................... 318
ARTICLE 294 – ROBBERY WITH VIOLENCE AGAINST OR INTIMIDATION OF PERSONS ..................................................................... 305
CHAPTER 4: USURPATION ............................. 318
ARTICLE 295 - ROBBERY WITH PHYSICAL INJURIES, IN AN UNINHABITED PLACE AND BY A BAND .................................................. 306
ARTICLE 312 - OCCUPATION OF REAL PROPERTY OR USURPATION OF REAL RIGHTS IN PROPERTY ................................. 318
ARTICLE 296 – ROBBERY BY A BAND ...... 307
ARTICLE 313 - ALTERING BOUNDARIES OR LANDMARKS................................................ 319
ARTICLE 297 ATTEMPTED AND FRUSTRATED ROBBERY WITH HOMICIDE308 ARTICLE 298 - EXECUTION OF DEEDS THROUGH VIOLENCE OR INTIMIDATION . 308 ARTICLE 299 - ROBBERY IN AN INHABITED HOUSE OR PUBLIC BUILDING OR EDIFICE DEVOTED TO WORSHIP ............................. 309 ARTICLE 301 - WHAT IS AN INHABITED HOUSE, PUBLIC BUILDING DEDICATED TO RELIGIOUS WORSHIP AND THEIR DEPENDENCIES: .......................................... 310 ARTICLE 300 – ROBBERY IN AN UNINHABITED PLACE AND BY A BAND ..... 310 ARTICLE 302 – ROBBERY IN AN UNINHABITED PLACE OR PRIVATE BUILDING ....................................................................... 311 ARTICLE 303 - ROBBERY OF CEREALS, FRUITS OR FIREWOOD IN AN UNINHABITED PLACE OR PRIVATE BUILDING .................... 311 ARTICLE 304 - POSSESSION OF PICKLOCK OR SIMILAR TOOLS ...................................... 311
CHAPTER 5: CULPABLE INSOLVENCY ........... 319 ART. 314 - FRAUDULENT INSOLVENCY ..... 319 CHAPTER 6: SWINDLING AND OTHER DECEITS .......................................................................... 320 ARTICLE 315 - ESTAFA ............................... 320 BP 22 (ANTI-BOUNCING CHECKS LAW) ... 325 ESTAFA THROUGH OTHER FRAUDULENT MEANS (315 PAR 3 (A) (B) (C)) .................... 326 ARTICLE 316 - OTHER FORMS OF SWINDLING AND DECEITS .........................327 ARTICLE 317 - SWINDLING OF A MINOR ... 330 ARTICLE 318 - OTHER DECEITS ................. 330 CHAPTER 7: CHATTEL MORTGAGE ............... 330 ARTICLE 319 - REMOVAL, SALE, OR PLEDGE OF MORTGAGED PROPERTY..................... 330 CHAPTER 8: ARSON AND OTHER CRIMES INVOLVING DESTRUCTION ............................. 331 KINDS OF ARSON: ....................................... 331
ARTICLE 305 - FALSE KEYS ......................... 311
PD 1613, §1. ARSON .................................... 332
CHAPTER 2: BRIGANDAGE ............................. 312
PD 1613, §2. DESTRUCTIVE ARSON .......... 332
ARTICLE 306 - WHO ARE BRIGANDS ....... 312
CHAPTER 9 MALICIOUS MISCHIEF .................333 ARTICLE 327 - WHO ARE RESPONSIBLE ...333
RA 9995: ANTI-PHOTO AND VIDEO VOYEURISM ACT OF 2009 ..........................347
ARTICLE 328 - SPECIAL CASES OF MALICIOUS MISCHIEF .................................333
TITLE XII. CRIMES AGAINST THE CIVIL STATUS OF PERSONS ..............................347
ARTICLE 329 - OTHER MISCHIEFS ............ 334
CHAPTER I: SIMULATION OF BIRTHS AND USURPATION OF CIVIL STATUS .................... 348
ARTICLE 330 - DAMAGE AND OBSTRUCTION TO MEANS OF COMMUNICATION ............. 334 ARTICLE 331 – DESTROYING OR DAMAGING STATUES, PUBLIC MONUMENTS OR PAINTINGS .................................................. 334 CHAPTER 10: EXEMPTION FROM CRIMINAL LIABILITY ......................................................... 334 ARTICLE 332 - EXEMPTION FROM CRIMINAL LIABILITY IN CRIMES AGAINST PROPERTY ..................................................................... 334
TITLE XI. CRIMES AGAINST CHASTITY .. 335 ARTICLE 333 - ADULTERY.......................... 335 ARTICLE 334 - CONCUBINAGE .................. 336 ARTICLE 336 - ACTS OF LASCIVIOUSNESS ...................................................................... 337 TWO KINDS OF SEDUCTION: ......................... 339 ARTICLE 337 - QUALIFIED SEDUCTION .... 339 ARTICLE 338 - SIMPLE SEDUCTION........... 341 ARTICLE 339 - ACTS OF LASCIVIOUSNESS WITH THE CONSENT OF THE OFFENDED PARTY.......................................................... 342 ARTICLE 340 - CORRUPTION OF MINORS 342 ARTICLE 341 - WHITE SLAVE TRADE......... 342 TWO KINDS OF ABDUCTION: ......................... 343 ARTICLE 342 - FORCIBLE ABDUCTION ..... 343 ARTICLE 343 - CONSENTED ABDUCTION 344 ARTICLE 344 - PROSECUTION OF PRIVATE OFFENSES ................................................... 345 ARTICLE 345: CIVIL LIABILITY OF PERSONS GUILTY OF CRIMES AGAINST CHASTITY .. 346 ARTICLE 346 – LIABILITY OF ASCENDANTS, GUARDIANS, TEACHERS AND OTHER PERSONS ENTRUSTED WITH THE CUSTODY OF THE OFFENDED PARTY .........................347 SPECIAL LAWS .................................................347
ARTICLE 347 - SIMULATION OF BIRTHS, SUBSTITUTION OF ONE CHILD FOR ANOTHER, AND CONCEALMENT OR ABANDONMENT OF A LEGITIMATE CHILD ..................................................................... 348 ARTICLE 348 - USURPATION OF CIVIL STATUS ....................................................... 348 CHAPTER II: ILLEGAL MARRIAGES ................ 349 ARTICLE 349 – BIGAMY ............................. 349 ARTICLE 350 - MARRIAGE CONTRACTED AGAINST PROVISIONS OF LAWS ............... 351 ARTICLE 351 - PREMATURE MARRIAGE .... 351 ARTICLE 352 - PERFORMANCE OF ILLEGAL MARRIAGE CEREMONY .............................. 351
TITLE XIII. CRIMES AGAINST HONOR ..... 352 CHAPTER I LIBEL ............................................ 352 ARTICLE 353 - DEFINITION OF LIBEL........ 352 ARTICLE 354 - REQUIREMENT FOR PUBLICITY ................................................... 354 ARTICLE 355 - LIBEL BY WRITING OR SIMILAR MEANS ......................................... 356 ARTICLE 356 - THREATENING TO PUBLISH AND OFFER TO PREVENT SUCH PUBLICATION FOR A COMPENSATION .... 356 ARTICLE 357 - PROHIBITED PUBLICATION OF ACTS REFERRED TO IN THE COURSE OF OFFICIAL PROCEEDINGS (GAG LAW) ....... 356 ARTICLE 358 - SLANDER ........................... 356 ARTICLE 359 - SLANDER BY DEED ............357 ARTICLE 360 - PERSONS RESPONSIBLE FOR LIBEL............................................................ 358 ARTICLE 361 - PROOF OF TRUTH .............. 359 ARTICLE 362 - LIBELOUS REMARKS ........ 360 CHAPTER II: INCRIMINATORY MACHINATIONS .......................................................................... 360
ARTICLE 363 - INCRIMINATING INNOCENT PERSON ...................................................... 360
ARTICLE 284 - BOND FOR GOOD BEHAVIOR ...................................................................... 377
ARTICLE 364 - INTRIGUING AGAINST HONOR ......................................................... 361
ARTICLE 285 – OTHER LIGHT THREATS ... 377
TITLE XIV. QUASI-OFFENSES ................... 361
ARTICLE 287 - LIGHT COERCIONS .............379
ARTICLE 365 - IMPRUDENCE AND NEGLIGENCE ............................................ 361
ARTICLE 288 - OTHER SIMILAR COERCIONS ......................................................................379
TITLE IX. CRIMES AGAINST PERSONAL LIBERTY AND SECURITY ......................... 365
ARTICLE 289 - FORMATION, MAINTENANCE, AND PROHIBITION OF COMBINATION OF CAPITAL OR LABOR THROUGH VIOLENCE OR THREATS ............................................... 380
CHAPTER I CRIMES AGAINST LIBERTY ......... 365 ARTICLE 267 - KIDNAPPING AND SERIOUS ILLEGAL DETENTION ................................. 365 ARTICLE 268 - SLIGHT ILLEGAL DETENTION ..................................................................... 368
ARTICLE 286 - GRAVE COERCIONS .......... 378
CHAPTER III: DISCOVERY AND REVELATION OF SECRETS .......................................................... 380
ARTICLE 269 - UNLAWFUL ARREST ......... 369
ARTICLE 290 - DISCOVERING SECRETS THROUGH SEIZURE OF CORRESPONDENCE ..................................................................... 380
ARTICLE 270 - KIDNAPPING AND FAILURE TO RETURN A MINOR ................................ 369
ARTICLE 291 - REVEALING SECRETS WITH ABUSE OF OFFICE ....................................... 381
ARTICLE 271 - INDUCING A MINOR TO ABANDON HIS HOME................................. 370
ARTICLE 292 - REVELATION OF INDUSTRIAL SECRETS ...................................................... 381
ARTICLE 272 - SLAVERY ............................ 370
SPECIAL LAWS ............................................. 381
ARTICLE 273 - EXPLOITATION OF CHILD LABOR .......................................................... 371
RA 4200 (ANTI WIRE TAPPING ACT) ......... 381
ARTICLE 274 - SERVICES RENDERED UNDER COMPULSION IN PAYMENT OF DEBT........ 371 CHAPTER II: CRIMES AGAINST SECURITY ..... 371 ARTICLE 275 - ABANDONMENT OF PERSONS IN DANGER AND ABANDONMENT OF OWN VICTIM ........................................... 371 ARTICLE 276 - ABANDONING A MINOR ....372 ARTICLE 277 - ABANDONMENT OF MINOR BY PERSON ENTRUSTED WITH CUSTODY; INDIFFERENCE OF PARENTS .....................372 ARTICLE 278 - EXPLOITATION OF MINORS ...................................................................... 373 ARTICLE 280 - QUALIFIED TRESPASS TO DWELLING....................................................374 ARTICLE 281 - OTHER FORMS OF TRESPASS ......................................................................375 ARTICLE 282 - GRAVE THREATS ................376 ARTICLE 283 - LIGHT THREATS ................. 377
RA 9327 (HUMAN SECURITY ACT) ............ 382 RA 9208: ANTI-TRAFFICKING IN PERSONS ACT OF 2003 ............................................... 390
TITLE X. CRIMES AGAINST PROPERTY ... 392 CHAPTER I: ROBBERY IN GENERAL .............. 393 ARTICLE 293 - WHO ARE GUILTY OF ROBBERY .................................................... 393 ARTICLE 294 – ROBBERY WITH VIOLENCE AGAINST OR INTIMIDATION OF PERSONS ..................................................................... 394 ARTICLE 295 - ROBBERY WITH PHYSICAL INJURIES, IN AN UNINHABITED PLACE AND BY A BAND .................................................. 396 ARTICLE 296 – ROBBERY BY A BAND ...... 396 ARTICLE 297 ATTEMPTED AND FRUSTRATED ROBBERY WITH HOMICIDE 397 ARTICLE 298 - EXECUTION OF DEEDS THROUGH VIOLENCE OR INTIMIDATION ..397
ARTICLE 299 - ROBBERY IN AN INHABITED HOUSE OR PUBLIC BUILDING OR EDIFICE DEVOTED TO WORSHIP ............................. 398 ARTICLE 301 - WHAT IS AN INHABITED HOUSE, PUBLIC BUILDING DEDICATED TO RELIGIOUS WORSHIP AND THEIR DEPENDENCIES: ......................................... 399
CHAPTER 6: SWINDLING AND OTHER DECEITS .......................................................................... 409 ARTICLE 315 - ESTAFA ............................... 409 BP 22 (ANTI-BOUNCING CHECKS LAW) .... 414 ESTAFA THROUGH OTHER FRAUDULENT MEANS (315 PAR 3 (A) (B) (C)) ..................... 416
ARTICLE 300 – ROBBERY IN AN UNINHABITED PLACE AND BY A BAND ....400
ARTICLE 316 - OTHER FORMS OF SWINDLING AND DECEITS ......................... 417
ARTICLE 302 – ROBBERY IN AN UNINHABITED PLACE OR PRIVATE BUILDING .....................................................................400
ARTICLE 317 - SWINDLING OF A MINOR .... 419
ARTICLE 303 - ROBBERY OF CEREALS, FRUITS OR FIREWOOD IN AN UNINHABITED PLACE OR PRIVATE BUILDING ..................400 ARTICLE 304 - POSSESSION OF PICKLOCK OR SIMILAR TOOLS ..................................... 401 ARTICLE 305 - FALSE KEYS ........................ 401 CHAPTER 2: BRIGANDAGE ............................. 401 ARTICLE 306 - WHO ARE BRIGANDS ....... 401 ARTICLE 307 - AIDING AND ABETTING A BAND OF BRIGANDS .................................. 402 CHAPTER 3 THEFT .......................................... 402 ARTICLE 308 - WHO ARE LIABLE FOR THEFT ..................................................................... 402 ARTICLE 309 – PENALTIES ........................ 403 THE BASIS OF THE PENALTY IN THEFT IS 403 ARTICLE 310 - QUALIFIED THEFT .............. 404 PD 1612: ANTI-FENCING LAW .................... 404 RA 6539: ANTI-CARNAPPING ACT ............ 405 ARTICLE 311 - THEFT OF THE PROPERTY OF THE NATIONAL LIBRARY AND NATIONAL MUSEUM ..................................................... 407 CHAPTER 4: USURPATION ............................ 408 ARTICLE 312 - OCCUPATION OF REAL PROPERTY OR USURPATION OF REAL RIGHTS IN PROPERTY ................................ 408 ARTICLE 313 - ALTERING BOUNDARIES OR LANDMARKS............................................... 408 CHAPTER 5: CULPABLE INSOLVENCY .......... 408 ART. 314 - FRAUDULENT INSOLVENCY .... 408
ARTICLE 318 - OTHER DECEITS .................. 419 CHAPTER 7: CHATTEL MORTGAGE ................ 419 ARTICLE 319 - REMOVAL, SALE, OR PLEDGE OF MORTGAGED PROPERTY...................... 419 CHAPTER 8: ARSON AND OTHER CRIMES INVOLVING DESTRUCTION ............................. 421 KINDS OF ARSON: ....................................... 421 PD 1613, §1. ARSON ..................................... 421 PD 1613, §2. DESTRUCTIVE ARSON ........... 421 CHAPTER 9 MALICIOUS MISCHIEF ................ 422 ARTICLE 327 - WHO ARE RESPONSIBLE .. 422 ARTICLE 328 - SPECIAL CASES OF MALICIOUS MISCHIEF ................................ 423 ARTICLE 329 - OTHER MISCHIEFS ............ 423 ARTICLE 330 - DAMAGE AND OBSTRUCTION TO MEANS OF COMMUNICATION ............. 423 ARTICLE 331 – DESTROYING OR DAMAGING STATUES, PUBLIC MONUMENTS OR PAINTINGS .................................................. 423 CHAPTER 10: EXEMPTION FROM CRIMINAL LIABILITY ......................................................... 423 ARTICLE 332 - EXEMPTION FROM CRIMINAL LIABILITY IN CRIMES AGAINST PROPERTY ..................................................................... 423
TITLE XI. CRIMES AGAINST CHASTITY .. 424 ARTICLE 333 - ADULTERY.......................... 424 ARTICLE 334 - CONCUBINAGE .................. 425 ARTICLE 336 - ACTS OF LASCIVIOUSNESS ..................................................................... 426 TWO KINDS OF SEDUCTION: ......................... 428 ARTICLE 337 - QUALIFIED SEDUCTION .... 429
ARTICLE 338 - SIMPLE SEDUCTION.......... 430 ARTICLE 339 - ACTS OF LASCIVIOUSNESS WITH THE CONSENT OF THE OFFENDED PARTY........................................................... 431 ARTICLE 340 - CORRUPTION OF MINORS 431 ARTICLE 341 - WHITE SLAVE TRADE.......... 431 TWO KINDS OF ABDUCTION: ......................... 432 ARTICLE 342 - FORCIBLE ABDUCTION ..... 432 ARTICLE 343 - CONSENTED ABDUCTION 434
ARTICLE 354 - REQUIREMENT FOR PUBLICITY ................................................... 443 ARTICLE 355 - LIBEL BY WRITING OR SIMILAR MEANS ......................................... 445 ARTICLE 356 - THREATENING TO PUBLISH AND OFFER TO PREVENT SUCH PUBLICATION FOR A COMPENSATION .... 445 ARTICLE 357 - PROHIBITED PUBLICATION OF ACTS REFERRED TO IN THE COURSE OF OFFICIAL PROCEEDINGS (GAG LAW) ....... 445
ARTICLE 344 - PROSECUTION OF PRIVATE OFFENSES ................................................... 434
ARTICLE 358 - SLANDER ........................... 446
ARTICLE 345: CIVIL LIABILITY OF PERSONS GUILTY OF CRIMES AGAINST CHASTITY .. 435
ARTICLE 360 - PERSONS RESPONSIBLE FOR LIBEL............................................................ 447
ARTICLE 346 – LIABILITY OF ASCENDANTS, GUARDIANS, TEACHERS AND OTHER PERSONS ENTRUSTED WITH THE CUSTODY OF THE OFFENDED PARTY ........................ 436
ARTICLE 361 - PROOF OF TRUTH .............. 448
SPECIAL LAWS ................................................ 436 RA 9995: ANTI-PHOTO AND VIDEO VOYEURISM ACT OF 2009 ......................... 436
TITLE XII. CRIMES AGAINST THE CIVIL STATUS OF PERSONS ..............................437 CHAPTER I: SIMULATION OF BIRTHS AND USURPATION OF CIVIL STATUS .....................437 ARTICLE 347 - SIMULATION OF BIRTHS, SUBSTITUTION OF ONE CHILD FOR ANOTHER, AND CONCEALMENT OR ABANDONMENT OF A LEGITIMATE CHILD .................................................................... z437 ARTICLE 348 - USURPATION OF CIVIL STATUS ....................................................... 438 CHAPTER II: ILLEGAL MARRIAGES ................ 438 ARTICLE 349 – BIGAMY ............................. 438 ARTICLE 350 - MARRIAGE CONTRACTED AGAINST PROVISIONS OF LAWS .............. 440 ARTICLE 351 - PREMATURE MARRIAGE ... 440 ARTICLE 352 - PERFORMANCE OF ILLEGAL MARRIAGE CEREMONY .............................. 441
TITLE XIII. CRIMES AGAINST HONOR ...... 441 CHAPTER I LIBEL ............................................. 441 ARTICLE 353 - DEFINITION OF LIBEL......... 441
ARTICLE 359 - SLANDER BY DEED ........... 446
ARTICLE 362 - LIBELOUS REMARKS ........ 449 CHAPTER II: INCRIMINATORY MACHINATIONS .......................................................................... 449 ARTICLE 363 - INCRIMINATING INNOCENT PERSON ...................................................... 449 ARTICLE 364 - INTRIGUING AGAINST HONOR ........................................................ 450
TITLE XIV. QUASI-OFFENSES .................. 450 ARTICLE 365 - IMPRUDENCE AND NEGLIGENCE ........................................... 450
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TABLE OF CONTENTS
I.FUNDAMENTAL PRINCIPLES
A. 1. MALA IN SE AND MALA PROHIBITA
A. DEFINITION OF CRIMINAL LAW That branch of public substantive law which defines crimes, treats of their nature, and provides for their punishment. [Reyes, citing 12 Cyc. 129]
Mala in se (“evil in itself”) – A crime or an act that is inherently immoral, such as murder, arson or rape. [Black’s Law Dictionary, 9th Ed.] Mala prohibita (“prohibited evil”) – An act that is a crime merely because it is prohibited by statute, although the act itself is not necessarily immoral. [Black’s Law Dictionary, 9th Ed.]
Mala in Se As to nature Wrong from its very nature; So serious in their effects on society as to call for condemnation of members. As to use of good faith as defense GF a valid defense, unless the crime is the result of culpa As to WON criminal intent is an Criminal intent is an element. element
Mala Prohibita Wrong because it is prohibited by law;
GF is not a defense.
Criminal intent is immaterial, BUT still requires intelligence & voluntariness As to degree of accomplishment Degree of accomplishment is The act gives rise to a crime of crime taken into account for the only when consummated. punishment. As to mitigating and aggravating They are taken into account in They are not taken into circumstances imposing penalty account. As to degree of participation When there is more than one Degree of participation is offender, the degree of generally not taken into participation of each in the account. All who participated commission is taken into in the act are punished to the account. same extent. As to stages of execution There are three stages: No such stages of execution attempted, frustrated & consummated As to persons criminally liable The principal, accomplice & Generally, only the principal is accessory. liable. Penalty is computed on the Penalty of offenders is basis of whether he is a same whether they acted as principal offender or merely an mere accomplices or accomplice or accessory accessories As to what laws are violated Generally, the RPC. Generally, special laws. As to division of penalties
Penalties may be divided into There is no such division of degrees and periods. penalties.
TABLE OF CONTENTS Dolo is not required in crimes mala prohibita. In those crimes which are mala prohibita, the act alone irrespective of its motives, constitutes the offense. Good faith and absence of criminal intent are not valid defenses in crimes mala prohibita. When the acts are inherently immoral, they are mala in se, even if punished under special law, like plunder which requires proof of criminal intent. [Estrada v. Sandiganbayan (2001)] Where malice is a factor, good faith is a defense.
A crime in the RPC can absorb a crime punishable by a special law if it is a necessary ingredient of the felony defined in the Code but a special law can never absorb a crime punishable under the RPC, because violations of the Revised Penal Code are more serious than a violation of a special law. [People v. Rodriguez (1960)] The crime of cattle-rustling is not malum prohibitum but a modification of the crime of theft of large cattle under the RPC (i.e. there are special laws which only modify crimes under the RPC therefore still mala in se). [People v. Martinada]
I. CRIMINAL LAW V. CRIMINAL PROCEDURE Criminal Law It is substantive. Prospective in application.
Criminal Procedure It is remedial. Retroactive in application.
Exception: If it is favorable to the accused. Exception To The Exception: When the accused is a habitual delinquent. (Art. 22) Where the new law expressly made inapplicable to pending actions or existing causes of actions. [Tavera v. Valdez] Statutory; it is passed by the Legislature. May be promulgated by the Legislature (e.g. jurisdiction of courts) or the Judiciary (e.g. Rules of Court) State authority to punish crime Art. II, Sec. 5 (1987 Constitution). Declaration of Principles and State Policies. The maintenance of peace and order, the protection of life, liberty and property, and promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.
SOURCES OF CRIMINAL LAW (1) The Revised Penal Code (Act No. 3815) enacted January 1, 1932; based on the Spanish Penal Code, US Penal Code, and Phil. Supreme Court decisions. (2) Special penal laws (3) Penal Presidential Decrees issued during Martial Law.
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RELATION OF RPC TO SPECIAL LAWS: SUPPLETORY APPLICATION OF RPC General rule: RPC provisions supplement the provisions of special laws. [Art. 10, RPC]
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Art. III, Sec. 14 (2), 1987 Const. In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved… Equipoise Rule – When the evidence of the prosecution and the defense are equally balanced, the scale should be tilted in favor of the accused in obedience to the constitutional presumption of innocence. [Ursua v. CA (1996); Corpuz v. People (1991)]
Exceptions: Where the special law provides otherwise. [Art.10, RPC] When the provisions of the Code are impossible of application, either by express provision or by necessary implication, as in those instances where the provisions in question are peculiar to the Code. [Regalado, Criminal Law Prospectus]
Spanish text of the RPC prevails overs its English translation In the construction or interpretation of the provision of the RPC, the Spanish text is controlling, because it was approved by the Philippine Legislature in its Spanish text. [People v. Manaba (58 Phil 665. 668)]
In the absence of contrary provision in B.P. Blg. 22, the general provisions of the RPC which, by their nature, are necessarily applicable, may be applied suppletorily. [Ladonga v. People (2005)]
Retroactive application if favorable to the accused See Characteristics of Criminal Law, Prospectivity and Art. 22, RPC.
CONSTRUCTION OF PENAL LAWS Strict construction against the State and liberally in favor of the accused
B. SCOPE OF APPLICATION AND CHARACTERISTICS OF PHILIPPINE CRIMINAL LAW
Pro Reo Doctrine – Whenever a penal law is to be construed or applied and the law admits of two interpretations - one lenient to the offender and one strict to the offender, that interpretation which is lenient or favorable to the offender will be adopted.
THREE CHARACTERISTICS OF CRIMINAL LAW (1) General (2) Territorial (3) Prospective
Basis: The fundamental rule that all doubts shall be construed in favor of the accused and presumption of innocence of the accused.
GENERALITY General rule: The penal law of the country is binding on all persons who live or sojourn in Philippine territory, subject to the principles of public international law and to treaty stipulations. [Art. 14, NCC]
The rule that penal statutes should be strictly construed against the State may be invoked only where the law is ambiguous and there is doubt as to its interpretation. Where the law is clear and unambiguous, there is no room for the application of the rule. [People v. Gatchalian]
Exception: 4
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(e) Offenses arising out of any act or omission done in performance of official duty. [Reyes, The RPC]
Art. 2, RPC. “Except as provided in the treaties or laws of preferential application xxx”
RULE ON JURISDICTION UNDER THE VFA If the crime is punishable under Philippine laws but not under US laws then Philippines has exclusive jurisdiction. If the crime is punishable under US laws but not under Philippine laws then US has exclusive jurisdiction. If the crime is punishable under the US and Philippine laws then there is concurrent jurisdiction but the Philippines has the right to primary jurisdiction. If the crime is committed by a US personnel against the security and property of the US alone then US has exclusive jurisdiction.
Art. 14, NCC. “xxx subject to the principles of public international law and to treaty stipulations.”
TREATY STIPULATIONS Examples: Bases Agreement entered into by the Philippines and the US on Mar. 14, 1947 and expired on Sept. 16, 1991. Visiting Forces Agreement (VFA) is an agreement between the Philippine and US Government regarding the treatment of US Armed Forces visiting the Philippines. It was signed on Feb. 10, 1998. Art. V, VFA, which defines criminal jurisdiction over United States military and civilian personnel temporarily in the Philippines in connection with activities approved by the Philippine Government.
Generally, the Philippines cannot refuse the request of the US for waiver of jurisdiction and has to approve the request for waiver except if the crime is of national importance: (a) Those crimes defined under RA 7659 (Heinous crimes) (b) Those crimes defined under RA 7610 (Child Abuse cases) (c) Those crimes defined under RA 9165 (Dangerous Drugs cases)
The US and Philippines agreed that: (a) US shall have the right to exercise within the Philippines all criminal and disciplinary jurisdiction conferred on them by the military law of the US over US personnel in RP; (b) US authorities exercise exclusive jurisdiction over US personnel with respect to offenses, including offenses relating to the security of the US punishable under the law of the US, but not under the laws of RP; (c) US military authorities shall have the primary right to exercise jurisdiction over US personnel subject to the military law of the US in relation to: (d) Offenses solely against the property or security of the US or offenses solely against the property or person of US personnel; and
LAWS OF PREFERENTIAL APPLICATION Examples: Members of Congress are not liable for libel or slander for any speech in Congress or in any committee thereof. (Sec. 11, Art. VI, 1987 Constitution) Any ambassador or public minister of any foreign State, authorized and received as such by the President, or any domestic or domestic servant of any such ambassador or minister are exempt from arrest and imprisonment and whose properties are exempt from distraint, seizure and attachment. (R.A. No. 75) 5
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privileges and immunities accorded to ambassadors and ministers. [Wheaton, International Law, Sec. 249]
R.A. No. 75 penalizes acts which would impair the proper observance by the Republic and inhabitants of the Philippines of the immunities, rights, and privileges of duly accredited foreign diplomatic representatives in the Philippines.
TERRITORIALITY General rule: Penal laws of the country have force and effect only within its territory.
Exceptions: The person is a citizen or inhabitant of the Philippines The writ or process issued against him is founded upon a debt contracted before he entered upon such service or the domestic servant is not registered with the Dept. of Foreign Affairs.
It cannot penalize crimes committed outside its territory. The national territory comprises the Philippine Archipelago… [Art. I, 1987 Constitution]. The territory of the country is not limited to the land where its sovereignty resides but includes also its maritime and interior waters as well as its atmosphere. [Art. 2, RPC]
Note: RA 75 is not applicable when the foreign country adversely affected does not provide similar protection to our diplomatic representatives.
Exceptions: Extraterritorial crimes, which are punishable even if committed outside the Philippine territory. [Art. 2, RPC]
Warship Rule – A warship of another country, even though docked in the Philippines, is considered an extension of the territory of its respective country. This also applies to embassies.
Par. 1: Crimes committed aboard Philippine ship or airship: The RPC is applied to Philippine vessels if the crime is committed while the ship is treading: Philippine waters (intraterritorial), or The high seas i.e. waters NOT under the jurisdiction of any State (extraterritorial)
Principles of Public International Law The following persons are exempt from the provisions of the RPC: Sovereigns and other heads of state Ambassadors, ministers, plenipotentiary, minister resident and charges d’ affaires. (Article 31, Vienna Convention on Diplomatic Relations)
Requisites (a) The ship or airship must not be within the territorial jurisdiction of another country (b) The ship or airship must be registered in the Philippines under Philippine laws
Note: Consuls and consular officers are NOT exempt from local prosecution. [See Article 41, Vienna Convention on Consular Relations]
Two rules as to jurisdiction over crimes committed aboard merchant vessels while in the territorial waters of another country (i.e. a foreign vessel treading Philippine waters OR Philippine vessels treading foreign waters):
Consuls, vice-consuls, and other commercial representatives of foreign nations do not possess the status of, and cannot claim the 6
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Philippine atmosphere, Philippine criminal law (See Anti-Hijacking Law) will govern.
FRENCH RULE: It is the flag or nationality of the vessel which determines jurisdiction UNLESS the crime violates the peace and order of the host country. ENGLISH RULE: the location or situs of the crime determines jurisdiction UNLESS the crime merely relates to internal management of the vessel.
Note: The Philippines adopts the Absolute Theory. Par. 2: Forging/Counterfeiting of Coins or Currency Notes in the Philippines Forgery is committed by giving to a treasury or bank note or any instrument payable to bearer or to order the appearance of a true genuine document or by erasing, substituting, counterfeiting or altering, by any means, the figures, letters, words, or signs contained therein.
The Philippines adheres to the ENGLISH RULE. When the crime is committed in a war vessel of a foreign country, the nationality of the vessel will always determine jurisdiction because war vessels are part of the sovereignty of the country to whose naval force they belong.
Forgery is committed abroad, and it refers only to Philippine coin, currency note, obligations and securities.
Note: The country of registry determines the nationality of the vessel, not its ownership. Thus, Filipino-owned vessel registered in China must fly the Chinese flag.
Par. 3: Should introduce into the country the above-mentioned obligations and securities.
International Theories on Aerial Jurisdiction The reason for this provision is that the introduction of forged or counterfeited obligations and securities into the Philippines is as dangerous as the forging or counterfeiting of the same, to the economic interest of the country.
Free Zone Theory The atmosphere over the country is free and not subject to the jurisdiction of the subjacent state, except for the protection of its national security and public order. Relative Theory The subjacent state exercises jurisdiction over the atmosphere only to the extent that it can effectively exercise control thereof.
Those who introduced the counterfeit items are criminally liable even if they were not the ones who counterfeited the obligations and securities. On the other hand, those who counterfeited the items are criminally liable even if they did not introduce the counterfeit items.
Absolute Theory The subjacent state has complete jurisdiction over the atmosphere above it subject only to the innocent passage by aircraft of a foreign country.
Par. 4: When public officers or employees commit an offense in the exercise of their functions. Crime committed pertains to the exercise of the public official’s functions:
Under this theory, if the crime is committed in an aircraft, no matter how high, as long as it can be established that it is within the 7
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The crimes which may be committed are: (a) Direct bribery (A.210) (b) Qualified Bribery (A. 211-A) (c) Indirect bribery (A.211) (d) Corruption (A.212) (e) Frauds against the public treasury (A.213) (f) Possession of prohibited interest (A.216) (g) Malversation of public funds or property (A. 217) (h) Failure to render accounts (A.218) (i) Illegal use of public funds or property (A.220) (j) Failure to make delivery of public funds or property (A.221) (k) Falsification by a public officer or employee committed with abuse of his official position (A.171) (l) Those having to do with the discharge of their duties in a foreign country.
(b) Conspiracy and proposal treason (A.115) (c) Misprision of treason (A.116) (d) Espionage (A.117)
to
commit
The functions contemplated are those, which are, under the law: to be performed by the public officer; in the foreign service of the Phil. government; in a foreign country.
Terrorism is now classified as a crime against national security and the law of nations. (See R.A. 9372, Human Security Act of 2007)
A crime committed within the grounds of a Philippine embassy on foreign soil shall be subject to Philippine penal laws, although it may or may not have been committed by a public officer in relation to his official duties. Embassy grounds are considered as extensions of the sovereignty of the country occupying them.
Section 58 provides that the Act shall apply to individual persons who, although physically outside the territorial limits of the Philippines shall: (a) Conspire or plot to commit any of the crimes in the Act (b) Commit any of said crimes on board a Philippine ship or airship (c) Commit any of said crimes within the embassy, consulate, or diplomatic premises belonging to or occupied by the Philippine government in an official capacity (d) iv. Commit said crimes against Philippine citizens or persons of Philippine descent where their citizenship or ethnicity was a factor in the commission of the crimes
Crimes against the law of nations (a) Inciting to war or giving motives for reprisals (A.118) (b) Violation of neutrality (A.119) (c) Correspondence with hostile country (A.120) (d) Flight to enemy’s country (A.121) (e) Piracy in general and mutiny on the high seas or in Philippine waters (A.122) Note: Crimes against public order (e.g., rebellion, coup d’etat, sedition) committed abroad is under the jurisdiction of the host country.
R.A. 9372, Human Security Act of 2007 has extraterritorial application.
Par. 5: Commit any of the crimes against national security and the law of nations, (Title One, Book 2, RPC)
Crimes against national security (a) Treason (A.114)
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(e) v. Commit said crimes directly against the Philippine government
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The offender already serving sentence is entitled to be released unless the repealing law is expressly made inapplicable to those who are serving sentence at the time of repeal.
PROSPECTIVITY General rule: Acts or omissions will only be subject to a penal law if they are committed AFTER a penal law has taken effect. [Art. 21, RPC]
Note: Habitual criminals will continue serving sentence Rule of prospectivity also applies to judicial decisions, administrative rulings and circulars. [Art. 8, Civil Code]
Conversely, acts or omissions which have been committed before the effectivity of a penal law could not be penalized by such penal law.
Rationale for the prospectivity rule: the punishability of an act must be reasonably known for the guidance of society. [Peo v. Jabinal]
Exception: Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony. [Art. 22, RPC] Exception to the Exception: The new law is expressly made inapplicable to pending actions or existing cause of actions; or The offender is a habitual criminal. [Art. 22, RPC]
LEGALITY
EFFECTS OF REPEAL/AMENDMENT
Nullum Crimen Nulla Poena Sine Lege – There is no crime when there is no law punishing the same.
Art. 21. No felony shall be punishable by any penalty not prescribed by law prior to its commission.
If the repeal makes the penalty lighter in the new law The new law shall be applied, EXCEPT when the offender is a habitual delinquent or when the new law is made not applicable to pending action or existing causes of action.
Limitation: Not every law punishing an act or omission may be valid as a criminal law. If the law punishing an act is ambiguous, it is null and void.
If the new law imposes a heavier penalty Law in force at the time of the commission of the offense shall be applied.
CONSTITUTIONAL LIMITATIONS ON THE POWER OF CONGRESS TO ENACT PENAL LAWS
If the new law totally repeals the existing law so that the act which was penalized under the old law is no longer punishable, The crime is obliterated.
EQUAL PROTECTION Article III, Section 1, 1987 Const. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.
Pending cases are dismissed, regardless of whether the accused is a habitual criminal. Unserved penalties imposed are remitted.
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special law, the generic word “crime” can be used.
Art. III, Sec. 14 (1), 1987 Const. No person shall be held to answer for a criminal offense without due process of law.
Felonies: How Committed Felonies are committed not only by means of deceit (dolo) but also by means of fault (culpa).
CRUEL OR INHUMAN PUNISHMENT
There is deceit when the act is performed with deliberate intent; and there is fault when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill. [Art. 3, RPC]
Art III, Sec. 19, 1987 Const. Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua.
CLASSIFICATION OF FELONIES Felonies are classified as follows: (1) According to the manner of their commission (2) According to the stages of their execution (3) According to their gravity
II. FELONIES DIFFERENTIATING FELONIES, OFFENSE, MISDEMEANOR AND CRIME
Other classifications: (1) As to count (2) As to nature
Felony – refers only to violations of the Revised Penal Code.
Importance: There are certain provisions in the RPC where the term “felony” is used, which means that the provision is not extended to crimes under special laws.
The purpose of classifying penalties is to bring about a proportionate penalty and equitable punishment. The penalties are graduated according to their degree of severity. o The stages (Art. 6) may not apply to all kinds of felonies. o There are felonies which do not admit of division.
Offense – A crime punished under a special law is called a statutory offense.
(1) According to Commission
A crime punishable under a special law is not referred to as a felony. “Crime” or “offense” is the proper term.
the
Manner
of
Their
Under Art. 3, they are classified as: (1) Intentional felonies – those committed with deliberate intent; and (2) Culpable felonies – those resulting from negligence, reckless imprudence, lack of foresight or lack of skill; performed without malice.
Misdemeanor – A minor infraction of the law, such as a violation of an ordinance. Crime – Whether the wrongdoing is punished under the Revised Penal Code or under a
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(b) Material Felonies: crimes that have various stages of execution (c) Felonies by omission: Crimes which have no attempted stage. (d) Crimes which have NO FRUSTRATED STAGE: the essence of the crime is the act itself. (e) Rape – the slightest penetration already consummates the crime (f) Arson – the slightest burning already renders the crime complete. (g) Theft – “free disposition of the items stolen” is not in any way determinative of whether the crime of theft has been produced. [Valuenzuela vs. People (2007)]
INTENTIONAL VS. CULPABLE FELONIES Intentional Act is malicious. With deliberate intent.
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Culpable Not malicious.
Injury caused is unintentional, being just an incident of another act performed without malice. Has intention Wrongful act results from to cause an imprudence, negligence, injury. lack of foresight, or lack of skill. (2) According to the Stages of Their Execution
According to Their Gravity Under Art. 9, felonies are classified as: (1) Grave felonies – those to which the law attaches the capital punishment or penalties which in any of their periods are afflictive; Reclusion perpetua Reclusion temporal Perpetual or Absolute DQ Perpetual or Temporary Special DQ Prision mayor Fine more than P6,000
Under Art. 6, they are classified as: (1) Attempted (2) Frustrated (3) Consummated Note: The classification of stages of a felony in Article 6 is true only to crimes under the Revised Penal Code. It does NOT apply to crimes punished under special laws. However, even certain crimes which are punished under the Revised Penal Code do not admit of these stages.
(2) Less grave felonies – those which the law punishes with penalties which in their maximum period is correctional; Prision correccional Arresto mayor Suspension Destierro Fines equal to or more than P200
Related to this, classification of felonies as to: (a) Formal Crimes: Crimes which are consummated in one instance;a single act of the accused consummates the offense as a matter of law (i.e. physical injuries, acts of lasciviousness, coercion, slander) (i) Example: ILLEGAL EXACTION under Art. 213 (ii) Mere demanding of an amount different from what the law authorizes him to collect will already consummate a crime, whether the taxpayer pays the amount being demanded or not.
Light felonies – those infractions of law for the commission of which the penalty is arresto menor, or a fine not exceeding P200, or both.
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General Rule: Light felonies are punishable only when they have been consummated Reason: They produce light, insignificant moral, and material injuries that public conscience is satisfied with providing a light penalty for their consummation. Exception: If committed against persons or property, punishable even if attempted or frustrated.
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This classification of felony according to gravity is important with respect to the question of prescription of crimes. If the penalty is a fine and exactly P200.00, it is only considered a light felony under Art. 9. If the fine is imposed as an alternative penalty or as a single penalty, the fine of P200.00 is considered a correctional penalty under Art. 26, hence a less grave penalty.
Light felonies under RPC: (1) Slight physical injuries (2) Theft when the value of the thing stolen is less than 5 pesos and theft is committed under the circumstances enumerated under Art. 308 par. 3 (3) Alteration of boundary marks (4) Malicious mischief when the value of the damage does not exceed two hundred pesos or cannot be estimated (5) Intriguing against honor.
If the penalty is exactly P200.00, apply Art. 26 (with respect to prescription of penalties). It is considered as a correctional penalty and it prescribes in 10 years. If the offender is apprehended at any time within ten years, he can be made to suffer the fine. As to Count Plurality of crimes may be in the form of: (a) Compound Crime, (b) Complex crime; and (c) Composite crime.
For light felonies, the only ones who can be held liable are the principals and accomplices.
As to Nature (a) Mala in se (b) Mala prohibita
Why is it necessary to determine whether the crime is grave, less grave or light? To determine whether these felonies can be complexed or not; the prescription of the crime and the prescription of the penalty.
B. ELEMENTS OF CRIMINAL LIABILITY Elements of Felonies [Art. 3, RPC] There must be an act or omission (actus reus/physical act)
In other words, these are felonies classified according to their gravity, stages and the penalty attached to them.
Act: Any kind of body movement which tends to produce some effect in the external world; includes possession. Omission: The failure to perform a positive duty which one is bound to do under the law.
Take note that when the Revised Penal Code speaks of grave and less grave felonies, the definition makes a reference specifically to Art. 25 of the Revised Penal Code.
That the act or omission must be punishable by the RPC.
Do not omit the phrase “In accordance with Art. 25” because there is also a classification of penalties under Art. 26 that was not applied. 12
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General Criminal Specific Criminal Intent Intent The intention to do The intention to something wrong. commit a definite act. Presumed from the Existence is not mere doing of a presumed. wrong act. The burden is upon Since the specific the wrongdoer to intent is an element prove that he acted of the crime, the without such burden is upon the criminal intent. prosecution to establish its existence. (3) Criminal Intent (a) The purpose to use a particular means to effect a result. (b) The intent to commit an act with malice, being purely a mental state, is presumed (but only if the act committed is unlawful). Such presumption arises from the proof of commission of an unlawful act. (c) However, in some crimes, intent cannot be presumed as an integral element thereof; so it has to be proven. (d) Example: In frustrated homicide, specific intent to kill is not presumed but must be proven; otherwise it is merely physical injuries. (e) Intent which is a mental process presupposes the exercise of freedom and the use of intelligence. (f) If an act is proven to be unlawful, then intent will be presumed prima facie. [U.S. v. Apostol] (g) An honest mistake of fact destroys the presumption of criminal intent which arises from the commission of a felonious act. [People v. Oanis] (h) Mens rea: "A guilty mind, a guilty or wrongful purpose or criminal intent." [Black's Law Dictionary, 5th ed., p. 889]
It is important that there is a law requiring the performance of an act; if there is no positive duty, there is no liability. That the act is performed or the omission incurred by means of dolo or culpa. The act or omission must be voluntary
DOLO Dolo is deliberate intent otherwise referred to as criminal intent, and must be coupled with freedom of action and intelligence on the part of the offender as to the act done by him. Intentional Felonies – The act or omission is performed or incurred with deliberate intent (with malice) to cause an injury to another. Requisites: (1) Freedom (a) Voluntariness on the part of the person who commits the act or omission. (b) If there is lack of freedom, the offender is exempt from liability (i.e., presence of irresistible force or uncontrollable fear) (2) Intelligence (a) Capacity to know and understand the consequences of one’s act. (b) This power is necessary to determine the morality of human acts, the lack of which leads to non-existence of a crime. (c) If there is lack of intelligence, the offender is exempt from liability. (i.e., offender is an imbecile, insane or under 15 years of age)
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The purpose to use a particular means to effect a definite result. (Reyes)
Note: If any of the elements is absent, there is no dolo. If there is no dolo, there could be no intentional felony. [Visbal vs. Buban (2003)]
Discernment – is the mental capacity to tell right from wrong. It is integral to the element of intelligence, NOT intent.
Exception to the requirement of criminal intent: (1) Felonies committed by CULPA (2) Offenses MALA PROHIBITA
Motive – it is the moving power which impels one to do an act for a definite result (ex. vengeance). Generally, it is not an essential element of a crime; hence, it need not be proved for purposes of conviction (except in certain cases enumerated below).
CATEGORIES OF CRIMINAL INTENT (GENERAL VS. SPECIFIC INTENT)
The general criminal intent is presumed from the criminal act; the absence of any general intent is relied upon as a defense; such absence must be proved by the accused. Generally, a specific intent is not presumed. Its existence, as a matter of fact, must be proved by the State just as any other essential element. This may be shown, however, by the nature of the act, the circumstances under which it was committed, the means employed and the motive of the accused In some particular felonies, proof of specific intent is required. In certain crimes against property, there must be intent to gain (Art. 293 – robbery, Art 308 – theft). Intent to kill is essential in attempted and frustrated homicide (Art 6 in relation to Art 249), as well as in murder. In forcible abduction (Art. 342), specific intent of lewd designs must be proved.
DISTINCTION BETWEEN DISCERNMENT AND MOTIVE
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How motive is proved Generally, the motive is established by the testimony of witnesses on the acts or statements of the accused before or immediately after the commission of the offense, deeds, or words that may express it or from which his motive or reason for committing it may be inferred. [Barrioquinto v. Fernandez (1949)] When Motive Becomes Material in Determining Criminal Liability (1) When the act brings about variant crimes (e.g. kidnapping v. robbery [People v. Puno (1993)]) (2) When there is doubt as to the identity of the assailant. (3) When there is the need to ascertain the truth between two antagonistic versions of the crime. (4) When the identification of the accused proceeds from an unreliable source and the testimony is inconclusive and not free from doubt. (5) When there are no eyewitnesses to the crime, and when suspicion is likely to fall upon a number of persons. (6) When the evidence on the commission of the crime is purely circumstantial. Lack of motive can aid in achieving acquittal of the accused, especially
INTENT,
Intent – is the determination to do a certain thing, an aim or purpose of the mind. It establishes the nature and extent of culpability in intentional felonies.
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where there is doubt as to the identity of the accused. [People v. Hassan (1988)] Proof of motive is not indispensable for a conviction, particularly where the accused is positively identified by an eyewitness and his participation is adequately established. [People v. Delos Santos] (7) When the act is alleged to be committed in defense of a stranger because it must not be induced by revenge, resentment, or other evil motive.
Rationale: el que es causa de la causa es causa del mal causado (he who is the cause of the cause is the cause of the evil caused). Requisites: (1) An intentional felony has been committed. (a) The felony committed should be one committed by means of dolo (with malice) because Art. 4, Par. 1 speaks of wrongful act done different from that which he intended. (b) The act should not be punished by a special law because the offender violating a special law may not have the intent to do an injury to another. (c) No felony is committed when: (i) the act or omission is not punishable by the RPC, (ii) the act is covered by any of the justifying circumstances enumerated in Art. 11. (2) The wrong done to the aggrieved party be the direct, natural and logical consequence of the felony committed by the offender. The relation of cause and effect must be shown: a. Unlawful act is the efficient cause b. Accelerating cause (3) Proximate cause
Note: Discernment does not indicate the presence of intent, merely intelligence [People v. Cordova (1993)]. Thus, discernment is necessary whether the crime is dolo or culpa.
WRONGFUL ACT THAT INTENDED
DIFFERENT
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FROM
Art. 4. RPC. Criminal liability shall be incurred: By any person committing a felony (delito) although the wrongful act done be different from that which he intended. xxx xxx xxx When a person commits a felony with malice, he intends the consequences of his felonious act. One who commits an intentional felony is responsible for all the consequences which may naturally and logically result therefrom, whether foreseen or intended or not.
Proximate Cause - That cause, which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury without which the result would not have occurred.
One is not relieved from criminal liability for the natural consequences of one’s illegal acts, merely because one does not intend to produce such consequences. [US v. Brobst (1909)]
The proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of 15
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events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom. [Vda. De Bataclan v. Medina (1957)]
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for another (Art. 49 – penalty for lesser crime in its maximum period) (a) At least two subjects (b) A has intent to kill B, but kills C (c) Under Art. 3, if A hits C, he should have no criminal liability. But because of Art. 4, his act is a felony. (2) Aberratio ictus - mistake in the blow; when offender intending to do an injury to one person actually inflicts it on another (Art. 48 on complex crimes – penalty for graver offense in its maximum period) (3) There is only one subject. (4) The intended subject is a different subject, but the felony is still the same.
Note: Criminal liability exists from the concurrence of the mens rea and the actus reus. Criminal liability for some felonies arises only upon a specific resulting harm: Homicide and its qualified forms requires DEATH of the victim to be consummated. Estafa: requires that the victim incur damage for criminal liability for the consummated felony to arise.
(5) Praeter intentionem - injurious result is greater than that intended (Art. 13 – mitigating circumstance) (6) If A’s act constitutes sufficient means to carry out the graver felony, he cannot claim praeter intentionem. When death is presumed to be the natural consequence of physical injuries inflicted: That the victim at the time the physical injuries were inflicted was in normal health. That death may be expected from the physical injuries inflicted; and That death ensued within a reasonable time. [People v. Datu Baginda]
General rule: The offender is CRIMINALLY LIABLE for ALL the natural and logical consequences of his felonious act, although not intended, if the felonious act is the proximate cause of the resulting harm. Any person who creates in another person’s mind an immediate sense of danger which causes the latter to do something resulting in the latter’s injuries, is liable for the resulting injuries. [People v. Page citing People v. Toling]
PROXIMATE CAUSE V. CAUSE V. REMOTE CAUSE
IMMEDIATE
Proximate cause – see definition above.
Thus, the person is still criminally liable although the wrongful act done be different from that which he intended in the following cases:
Immediate cause – The last event in a chain of events, though not necessarily the proximate cause of what follows.
(1) Error in personae - mistake in the identity of the victim; injuring one person mistaken
Remote cause – A cause that does not necessarily or immediately produce an event or injury. 16
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The felony committed is not the proximate cause of the resulting injury when: (1) There is an efficient intervening cause or an active force that intervened between the felony committed and the resulting injury, and the active force is a distinct act or fact absolutely foreign from the felonious act of the accused; or (2) The resulting injury is due to the intentional act of the victim.
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There must be a law requiring the doing or performing of an act. Punishable omissions in the RPC: (1) Art. 116: Misprision of treason. (2) Art. 125: Failure to deliver prisoners. (3) Art. 137: Disloyalty of public officers or employees. (4) Art. 208: Negligence and tolerance in prosecution of offenses. (5) Art. 223: Conniving with or consenting to evasion. (6) Art. 275: Abandonment of person in danger and abandonment of one’s own victim. (7) Art. 276: Abandoning a minor
The following are not efficient intervening cause: (1) The weak or diseased physical condition of the victim, as when one is suffering from tuberculosis or heart disease. [People v. Illustre] (2) The nervousness or temperament of the victim, as when a person dies in consequence of an internal hemorrhage brought on by moving about against the doctor’s orders, because of his nervous condition due to the wound inflicted by the accused. [People v. Almonte] (3) Causes which are inherent in the victim, such as (a) the victim not knowing how to swim and (b) the victim being addicted to tuba drinking. [People v. Buhay and People v. Valdez] (4) Neglect of the victim or third person, such as the refusal by the injured party of medical attendance or surgical operation, or the failure of the doctor to give anti-tetanus injection to the injured person. [U.S. v. Marasigan] (5) Erroneous or unskillful medical or surgical treatment, as when the assault took place in an outlying barrio where proper modern surgical service was not available. [People v. Moldes]
Mistake of Fact (Ignorantia Facti Excusat) – It is a reasonable misapprehension of fact on the part of the person causing injury to another. Such person is NOT criminally liable as he acted without criminal intent. Under this principle, what is involved is the lack of intent on the part of the accused. Therefore, the defense of mistake of fact is an untenable defense in culpable felonies, where there is no intent to consider. An honest mistake of fact destroys the presumption of criminal intent which arises upon the commission of a felonious act. Requisites: (1) That the act done would have been lawful had the facts been as the accused believed them to be; (2) That the intention of the accused in performing the act should be lawful; (3) That the mistake must be without fault or carelessness on the part of the accused. When the accused is negligent, mistake of fact is not a defense.[ People v. Oanis (1993)]
Omission – It is inaction; the failure to perform a positive duty which a person is bound to do.
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Justice of the Peace of Pampanga the proposition that "reckless imprudence is not a crime in itself but simply a way of committing it.
However, mistake of fact is NOT availing in People v. Oanis (74 Phil. 257), because the police officers were at fault when they shot the escaped convict who was sleeping, without first ascertaining his identity. (It is only when the fugitive is determined to fight the officers of law trying to catch him that killing the former would be justified)
It is not a mere question of classification or terminology. In intentional crimes, the act itself is punished; in negligence or imprudence, what is principally penalized is the mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the imprudencia punible.
US v. Ah Chong (1910): A cook who stabs his roommate in the dark, honestly mistaking the latter to be a robber responsible for a series of break-ins in the area, and after crying out sufficient warnings and believing himself to be under attack, cannot be held criminally liable for homicide.
The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine the penalty, it does not qualify the substance of the offense. And, as the careless act is single, whether the injurious result should affect one person or several persons, the offense (criminal negligence) remains one and the same, and can not be split into different crimes and prosecutions.
CULPA Culpa – The act or omission is not malicious; the injury caused being simply the incident of another act performed without malice. The element of criminal intent is replaced by negligence, imprudence, lack of foresight or lack of skill.
Negligence - Indicates deficiency of perception, failure to pay proper attention, and to use diligence in foreseeing the injury or damage impending to be caused. Usually involves lack of foresight.
Requisites: (1) Freedom (2) Intelligence (3) Negligence, reckless imprudence, lack of foresight or lack of skill
Imprudence - Indicates deficiency of action, failure to take the necessary precaution to avoid injury to person or damage to property. Usually involves lack of skill.
Ivler v. Modesto-San Pedro (2010): Reckless Imprudence is a single crime, its consequences on persons and property are material only to determine the penalty.
Reason for punishing acts of negligence or imprudence: A man must use his common sense and exercise due reflection in all his acts; it is his duty to be cautious, careful and prudent.
Quasi-offenses, whether reckless or simple, are distinct species of crime, separately defined and penalized under the framework of our penal laws. As early as the middle of the last century, the Court already sought to bring clarity to this field by rejecting in Quizon v.
DOCTRINES CONCERNING CULPABLE CRIMES
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(1) Emergency Rule A person who is confronted with a sudden emergency may be left no time for thought so he must make a speedy decision based largely upon impulse or instinct. Importance: cannot be held to the same conduct as one who has had an opportunity to reflect, even though it later appears that he made the wrong decision.
CRIMINAL LAW events leading to the injury [Carillo v. People].
A. IMPOSSIBLE CRIME Purpose of punishing impossible crimes – to suppress criminal propensity or criminal tendencies. Objectively, the offender has not committed a felony, but subjectively, he is a criminal. Requisites: (1) That the act performed would be an offense against persons or property. (2) That the act was done with evil intent. (3) That its accomplishment is inherently impossible, or that the means employed is either inadequate or ineffectual. (4) That the act performed should not constitute a violation of another provision of the RPC
(2) Doctrine Of “Last Clear Chance” The contributory negligence of the party injured will NOT defeat the action if it be shown that the accused might, by the exercise of reasonable care and prudence, have avoided the consequences of the negligence of the injured party. Last Clear Chance is a defense by the defendant in a damage suit against liability by transferring it to the plaintiff. Except: The doctrine is not applicable in criminal cases because the liability is penal in nature and thus liability cannot be transferred to the other party. [Anuran v. Buno (1966)] It is not a case between two parties involved in an incident but rather between an individual and the State.
Inadequate – Insufficient (e.g. small quantity of poison) Ineffectual – means employed did not produce the result expected (e.g. pressed the trigger of the gun not knowing that it is empty) Inherent impossibility: The act intended by the offender is by its nature one of impossible accomplishment. There must be either: (a) Legal impossibility – The intended acts, even if completed, would not amount to a crime. Legal impossibility would apply to those circumstances where: (i) the motive, desire and expectation is to perform an act in violation of the law; (ii) there is intention to perform the physical act; (iii) there is a performance of the intended physical act; and
(3) Rule Of Negative Ingredient This is related to the doctrine of proximate cause and applicable when certain causes leading to the result are not identifiable. This rule states that: The prosecution must first identify what the accused failed to do. Once this is done, the burden of evidence shifts to the accused. The accused must show that the failure did not set in motion the chain of 19
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(iv) the consequence resulting from the intended act does not amount to a crime. [Intod v. CA] (b) Physical or factual impossibility – Extraneous circumstances unknown to the actor or beyond his control prevent the consummation of the intended crime. (i) In the Philippines, impossibility of accomplishing the criminal intent is not merely a defense but an act penalized in itself. (ii) Since the offender in an impossible crime has already performed the acts for the execution of the same, there could be no attempted impossible crime. There is no frustrated impossible crime either, because the acts performed by the offender are considered as constituting a consummated offense.
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It so happened that the intended victim did not come home that evening and so was not in her bedroom at that time. Eventually the culprits were prosecuted and convicted by the trial court for attempted murder. CA affirmed the judgment but the SC modified the same and held the petitioner liable only for the so-called impossible crime. As a result, petitioner-accused was sentenced to imprisonment of only six months of arresto mayor for the felonious act he committed with intent to kill: this despite the destruction done to the intended victim’s house.
B. STAGES OF EXECUTION Classification under Art. 6: Consummated Felony – When all the elements necessary for its execution and accomplishment are present; the felony is produced. Frustrated Felony – When the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. Attempted Felony – When the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance
MODIFIED CONCEPT OF IMPOSSIBLE CRIME Intod v. CA (1992): In this case, four culprits, all armed with firearms and with intent to kill, went to the intended victim’s house and after having pinpointed the latter’s bedroom, all four fired at and riddled the said room with bullets, thinking that the intended victim was already there as it was about 10:00 in the evening.
DEVELOPMENT OF A CRIME ELEMENTS OF CRIMINAL IMPOSSIBLE CRIME LIABILITY Lacking due to: inherent impossibility Actus Reus employment of inadequate means
ATTEMPTED
FRUSTRATED
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Mens Rea Concurrence Result Causation
execution
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(2) Such external acts have a direct connection with the crime intended to be committed.
(1) Internal acts Intent, ideas and plans; generally not punishable, even if, had they been carried out, they would constitute a crime The intention and act must concur. Illustration: Ernie plans to kill Bert
Indeterminate Offense – It is one where the purpose of the offender in performing an act is not certain. Its nature in relation to its objective is ambiguous. The intention of the accused must be viewed from the nature of the acts executed by him, and not from his admission. The accused may be convicted of a felony defined by the acts performed by him up to the time of desistance.
(2) External acts (a) Preparatory Acts Acts tending toward the crime. Ordinarily not punished except when considered by law as independent crimes (i.e. Art. 304 – possession of picklocks) Proposal and conspiracy to commit a felony are not punishable except when the law provides for their punishment in certain felonies These acts do not yet constitute even the first stage of the acts of execution. Intent not yet disclosed. Illustration: Ernie goes to the kitchen to get a knife. (b) Acts of Execution Usually overt acts with a logical relation to a particular concrete offense. Punishable under the RPC. Illustration: Ernie stabs Bert
People v. Lamahang (1935): Aurelio Lamahang was caught opening with an iron bar a wall of a store of cheap goods in Fuentes St. Iloilo. He broke one board and was unfastening another when a patrolling police caught him. The owners of the store were sleeping inside store as it was early dawn. Lamahang was then convicted of attempted robbery Held: The crime committed was only attempted trespass to dwelling. Attempt should have logical relation to a particular and concrete offense which would lead directly to consummation. It is necessary to establish an unavoidable connection & logical & natural relation of cause and effect. It’s also important to show clear intent to commit crime. In the case at bar, we can only infer that his intent was to enter by force, other inferences are not justified by facts. Groizard: infer only from nature of acts executed. Acts susceptible of double interpretation can’t furnish ground for themselves. The mind should not directly infer intent.
A commission of the felony is deemed commenced when the following are present: (1) There are external acts.
Attempted and Frustrated Felonies – The difference between the attempted stage and the frustrated stage lies in whether the 21
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offender has performed all the acts of execution for the accomplishment of a felony.
Acts Performed
Why
Attempted Felony Overt acts of execution are started BUT Not all acts of execution are present Due to reasons other than the spontaneous desistance of the perpetrator
Offender still in subjective phase because he Position in still has the control of his Timeline acts, including their natural cause.
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Overt Act – Some physical activity or deed, indicating the intention to commit a particular crime, more than a mere planning or preparation, which if carried to its complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense.
Frustrated Felony All acts of execution are finished BUT Crime sought to be committed is not achieved
Due to intervening causes independent of the will of the perpetrator
Offender is already in the objective phase because all acts of execution are already present and the cause of its nonaccomplishmen t is other than the offender’s will
B. 1. ATTEMPTED STAGE Elements: (1) The offender commences the commission of the felony directly by overt acts; (2) He does not perform all the acts of execution which should produce the felony; (3) The non-performance of all acts of execution was due to cause or accident other than his own spontaneous desistance.
Marks the commencement of the subjective phase: Subjective phase - That portion of the acts constituting a crime, starting from the point where the offender begins the commission of the crime to that point where he still has control over his acts including their (act’s) natural course If between those two points, the offender is stopped by reason of any cause outside of his own voluntary desistance, the subjective phase has not been passed and it is merely an attempt. Desistance – is an absolutory cause which negates criminal liability because the law encourages a person to desist from committing a crime. But, it does not negate all criminal liability, if the desistance was made when acts done by him already resulted in a felony, the offender will still be criminally liable for the felony brought about by his act. What is negated is only the attempted stage, but there may be other felonies arising from his act.
Note: Desistance is true only in the attempted stage of the felony.
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If the felony is already in its frustrated stage, desistance will NOT negate criminal liability. In the attempted stage, the definition uses the word “directly.” The word “directly” emphasizes the requirement that the attempted felony is that which is directly linked to the overt act performed by the offender, not the felony he has in his mind. There are some acts which are ingredients of a certain crime, but which are, by themselves, already criminal offenses like in the case of People v. Lamahang (1935) where the act of removing the panel indicates only at most the intention to enter, he can only be prosecuted for trespass and not robbery.
Elements: (1) The offender performs all the acts of execution; (2) All the acts performed would produce the felony as a consequence; (3) But the felony is not produced; (4) By reason of causes independent of the will of the perpetrator.
The hymen of the victim was still intact. However, since it was decided in People v. Orita that entry into labia is considered rape even without rupture and full penetration of the hymen, a question arises whether what transpired was attempted or consummated rape.
conviction for consummated rape. Where entry into the labia has not been established, the crime amounts to an attempted rape. The prosecution did not prove that Campuhan’s penis was able to penetrate victim’s vagina because the kneeling position of the accused obstructed the mother’s view of the alleged sexual contact. The testimony of the victim herself claimed that penis grazed but did not penetrate her organ. There was only a shelling of the castle but no bombardment of the drawbridge yet.
B. 2. FRUSTRATED STAGE
People v. Campuhan (2000): The mother of the 4-year-old victim caught the houseboy Campuhan in the act of almost raping her daughter.
Held:
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There was only attempted rape. Mere touching of external genitalia by the penis is already rape. Touching should be understood as inherently part of entry of penis penetration and not mere touching, in the ordinary sense, of the pudendum. Requires entry into the labia, even if there be no rupture of the hymen or laceration of the vagina, to warrant a
The end of the subjective phase and the beginning of the objective phase. Objective phase – the result of the acts of execution, that is, the accomplishment of the crime. If the subjective and objective phases have been passed there is a consummated felony.
People v. Listerio (2000): Brothers Jeonito and Marlon were walking when they met a group composed of men who blocked their path and attacked them with lead pipes and bladed weapons. One stabbed Jeonito from behind. Jeonito’s brother, Marlon, was hit on the head. 23
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Held: (1) The SC held that the crime is a frustrated felony not an attempted offense considering that after being stabbed and clubbed twice in the head as a result of which he lost consciousness and fell. Marlon's attackers apparently thought he was already dead and fled. (2) A crime cannot be held to be attempted unless the offender, after beginning the commission of the crime by overt acts, is prevented, against his will, by some outside cause from performing all of the acts which should produce the crime. (3) In other words, to be an attempted crime, the purpose of the offender must be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has performed all of the acts which should produce the crime as a consequence, which acts it is his intention to perform. (4) If he has performed all the acts which should result in the consummation of the crime and voluntarily desists from proceeding further, it cannot be an attempt.
CRIMINAL LAW execution when he has effected a penetration. Once there is penetration, no matter how slight it is, the offense is consummated. For this reason, rape admits only of the attempted and consummated stages, no frustrated stage. [People v. Orita]
(2) Arson One cannot say that the offender, in the crime of arson, has already performed all the acts of execution which could produce the destruction of the premises through the use of fire, unless a part of the premises has begun to burn. The crime of arson is therefore consummated even if only a portion of the wall or any part of the house is burned. The consummation of the crime of arson does not depend upon the extent of the damage caused. (People v. Hernandez) (3) Bribery and Corruption of Public Officers The manner of committing the crime requires the meeting of the minds between the giver and the receiver. If there is a meeting of the minds, there is consummated bribery or consummated corruption. If there is none, it is only attempted.
CRIMES WHICH DO NOT ADMIT OF FRUSTRATED STAGE (1) Rape The essence of the crime is carnal knowledge. No matter what the offender may do to accomplish a penetration, if there was no penetration yet, it cannot be said that the offender has performed all the acts of execution. We can only say that the offender in rape has performed all the acts of
(4) Adultery This requires the sexual contact between two participants. If that link is present, the crime is consummated. (5) Physical Injuries Under the Revised Penal Code, the crime of physical injuries is penalized on the basis of the gravity of the 24
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injuries. There is no simple crime of physical injuries. There is the need to categorize because there are specific articles that apply whether the physical injuries are serious, less serious or slight. Thus, one could not punish the attempted or frustrated stage because one does not know what degree of physical injury was committed unless it is consummated.
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(b) Crimes consummated by mere attempt or proposal by overt act. (i) Ex. Flight to enemy’s country (Art. 121) and corruption of minors (Art. 340) (c) Felony by omission (i) There can be no attempted stage when the felony is by omission, because the offender does not execute acts, rather he omits to perform an act which the law requires him to do. (d) Crimes requiring the intervention of two persons to commit them are consummated by mere agreement. (i) In bribery, the manner of committing the crime requires the meeting of the minds between the giver and the receiver. (ii) When the giver delivers the money to the supposed receiver, but there is no meeting of the minds, the only act done by the giver is an attempt. (e) Material Crimes – have three stages of execution
(6) Theft Once there is unlawful taking, theft is consummated. Either the thing was taken or not. It does not matter how long the property was in the possession of the accused; it does not matter whether the property was disposed or not Rule of thumb: Felonies that do not require any result do not have a frustrated stage.
B. 3. CONSUMMATED STAGE If the subjective and objective phases are present.
Thus, in determining the stage of some crimes, the manner of execution becomes pivotal in determining the end of the subjective phase, i.e. once the offender performs the act in the manner provided for in the law, HE IS ALREADY DEEMED TO HAVE PERFORMED EVERY ACT FOR ITS EXECUTION.
Factors in Determining the Stage of Execution of a Felony (1) The manner of committing the crime; (2) The elements of the crime; and (3) The nature of the crime itself. These three factors are helpful in trying to pinpoint whether the crime is still in its attempted, frustrated or consummated stage.
(2) The Elements of the Crime (a) Along with the manner of execution, there are crimes wherein the existence of certain elements becomes the factor in determining its consummation. (b) In the crime of estafa, the element of damage is essential before the crime could be consummated. If there is no damage, even if the offender succeeded in carting away the personal
(1) The Manner of Committing the Crime (a) Formal Crimes - consummated in one instant, no attempt. (i) Ex. Slander and false testimony (ii) There can be no attempt, because between the thought and the deed, there is no chain of acts that can be severed. 25
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property involved, estafa cannot be considered as consummated. (c) On the other hand, if it were a crime of theft, damage or intent to cause damage is not an element of theft. What is necessary only is intent to gain, not even gain is important. (d) In the crime of abduction, the crucial element is the taking away of the woman with lewd designs.
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General rule: Conspiracy and proposal to commit a felony are not punishable. Exception: They are punishable only in the cases in which the law specially provides a penalty therefore. Conspiracy to commit (a) Treason (Art. 115) (b) Rebellion (Art. 136) (c) Insurrection (Art. 136) (d) Coup d’état, (Art. 136) (e) Sedition (Art. 141) (f) Monopolies and combinations in restraint of trade (Art. 186) (g) Espionage (Sec. 3, C.A. 616) (h) Selected acts under the Dangerous Drugs Act (Sec. 26, R.A. 9165) (i) Arson (P.D. 1613, Sec. 7) (j) Terrorism (R.A. 9372, Sec. 4)
(3) The Nature of the Crime Itself In defining of the frustrated stage of crimes involving the taking of human life (parricide, homicide, and murder), it is indispensable that the victim be mortally wounded. Hence, the general rule is that there must be a fatal injury inflicted, because it is only then that death will follow.
B. CONSPIRACY AND PROPOSAL
Proposal to commit – (a) Treason (Art. 115) (b) Coup d’ etat (Art. 136) (c) Rebellion (Art. 136) (d) Inducement not to answer summons, appear or be sworn in Congress, etc. (Art. 150)
Conspiracy – exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. (Article 8, RPC). Agreement may be oral or written, express or implied. Requisites of conspiracy: (1) Two or more persons come to an agreement. (2) Agreement presupposes meeting of the minds of two or more persons (3) The agreement pertains to a commission of a felony. (4) Agreement to effect what has been conceived and determined. The execution of the felony was decided upon.
Rationale: Conspiracy and proposal to commit a crime are only preparatory acts and the law regards them as innocent or at least permissible except in rare and exceptional cases. Conspiracy as a felony, distinguished from conspiracy as a manner of incurring criminal liability: As a felony, conspirators do not need to actually commit treason, rebellion, insurrection, etc., it being sufficient that two or more persons agree and decide to commit it.
Note: There must be participation in the criminal resolution because simple knowledge thereof by a person may only make him liable as an accomplice. 26
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(3) It is not the execution of a felony that is proposed.
As a manner of incurring criminal liability, if they commit treason, rebellion, etc., they will be held liable for it, and the conspiracy which they had before committing the crime is only a manner of incurring criminal liability, not a separate offense.
Note: It is not necessary that the person to whom the proposal is made agrees to commit treason or rebellion.
In conspiracy, the act of one is the act of all. General rule: When the conspiracy is established, all who participated therein, irrespective of the quantity or quality of his participation is liable equally, whether conspiracy is pre-planned or instantaneous.
Exception: Unless one or some of the conspirators committed some other crime which is not part of the intended crime.
Exception to the Exception: When the act constitutes a “single indivisible offense.”
Proposal to commit a felony - when the person who has decided to commit a felony proposes its execution to some other person or persons. [Art. 8, RPC]
Examples: (1) Proposal to commit treason (Art. 115) and (2) Proposal to commit coup d’état, rebellion or insurrection (Art. 136). Requisites: (1) That a person has decided to commit a felony; and (2) That he proposes its execution to some other person or persons.
There is no criminal proposal when: (1) The person who proposes is not determined to commit the felony; (2) There is no decided, concrete and formal proposal; 27
Conspiracy must be established by positive and conclusive evidence, not by conjectures or speculations. [People v. Laurio (1991)] Conspiracy is predominantly a state of mind as it involves the meeting of the minds and intent of the malefactors. Consequently, direct proof is not essential to establish it. [People v. Bello (2004)] To establish conspiracy, evidence of actual cooperation rather than mere cognizance or approval of an illegal act is required. Conspiracy is never presumed; it must be shown to exist as clearly and convincingly as the commission of the crime itself. Mere presence of a person at the scene of the crime does not make him a conspirator for conspiracy transcends companionship. [People v. Comadre (2004)] While it is mandatory to prove conspiracy by competent evidence, direct proof is not essential to show it – it may be deduced from the mode, method, and manner by which the offense was perpetrated, or inferred from the acts of the accused themselves when such acts point to a joint purpose and design, concerted action and community of interest. [People v. Cenahonon (2007)] Direct proof is not required, as conspiracy may be proved by circumstantial evidence. It may be established through the collective acts of the accused before, during and after the commission of a felony that all the accused aimed at the same object, one performing one part and the other
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performing another for the attainment of the same objective; and that their acts, though apparently independent, were in fact concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments. [People v. Talaogan (2008)] Doctrine of Implied Conspiracy – Conspiracy need not be direct but may be inferred from the conduct of the parties, their joint purpose, community of interest and in the mode and manner of commission of the offense. [People v. Pangilinan (2003)]
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In some exceptional situations, having community of design with the principal does not prevent a malefactor from being regarded as an accomplice if his role in the perpetration of the homicide or murder was, relatively speaking, of a minor character. (People v. Nierra)
In determining whether there is an implied conspiracy, it must be based on: (1) Overt acts done before, during, or after the commission of the crime; (2) Words, remarks or language used before, during or after the commission of the crime (a) They must be distinct from each other, independent or separate. (b) They must be closely associated, closely related, closed linked, and coordinated. (c) They must be for the common criminal design, joint criminal interest, unity of criminal purpose, or concerted action, geared towards the attainment of the felony.
Legal effects of implied conspiracy are: Not all those present at the crime scene will be considered conspirators; Only those who participated in the criminal acts during the commission of the crime will be considered co-conspirators; Mere acquiescence to or approval of the commission of the crime, without any act of criminal participation, shall not render one criminally liable as co-conspirator. In the absence of any previous plan or agreement to commit a crime, the criminal responsibility arising from different acts directed against one and the same person is individual and not collective, and that each of the participants is liable only for his own acts. (People v. Bagano) A conspiracy is possible even when participants are not known to each other. When several persons who do not know each other simultaneously attack the victim, the act of one is the act of all, regardless of the degree of injury inflicted by any one of them. Everyone will be liable for the consequences. One who desisted is not criminally liable. As pointed out earlier, desistance is true only in the attempted stage. Before this stage, there is only a preparatory stage. Conspiracy is only in the preparatory stage.
Distinctions between the liability of a conspirator and that of a member of a band where the crime committed is robbery which is attended by other crimes. (1) A conspirator is liable only for such other crimes which could be foreseen and which are the natural and logical consequences of the conspiracy. Thus, if the conspiracy is only to rob the victim, rape is not a foreseeable consequence. (People v. Castillo) (2) A member of a band in a robbery cuadrilla, on the other hand, is liable for all assaults, inclusive of rape and homicide, where he was present when these crimes were being committed but he did not attempt to prevent the same. (Art. 296 (2), RPC). 28
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prevent it, he will be liable under the cuadrilla rule; and (c) If the lookout was not present when the homicide was committed, he will not be liable for the rape but he will still be liable for the homicide under the conspiracy theory.
If both conspiracy to rob and cuadrilla are present, both rules may apply, in this manner: (a) If a homicide was committed, the lookout is liable therefore under the conspiracy theory; (b) If a rape was committed and the lookout was present but did not try to Two Concepts of Conspiracy AS A FELONY IN ITSELF
Stage Preparatory acts
How incurred Mere agreement
Legal requirements
Illustration
The RPC must specifically punish the act of conspiring (and proposing) The act must not be accomplished, else the conspiracy is obliterated and the act itself is punished.
A, B, C and D came to an agreement to commit rebellion. Their agreement was to bring about the rebellion on a certain date. Even if none of them has performed the act of rebellion, there is already criminal liability arising from the conspiracy to commit the rebellion. But if anyone of them has committed the overt act of rebellion, the crime of all is no longer conspiracy but rebellion itself. This subsists even though the other coconspirators do not know that one of them had already done the act of rebellion. Three persons plan to rob a bank. For as long as the conspirators merely entered the bank there is no crime yet. But when one of them
Quantum of proof: Conspiracy as a crime must be established beyond reasonable doubt
AS A BASIS FOR LIABILITY
Executory acts
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Commis-sion of overt act
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Participants acted in concert or simultaneously or in any way which is indicative of a meeting of the minds towards a common criminal goal or criminal
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objective. The act of meeting together is not necessary as long as a common objective can be discerned from the overt acts. The act must be accomplished, if there is only conspiracy or proposal, there is no crime to be punished.
draws a gun and disarms the security guard, all of them shall be held liable, unless a coconspirator was absent from the scene of the crime or he showed up, but he tried to prevent the commission of the crime.
Quantum of proof: Reasonably inferred from the acts of the offenders when such acts disclose or show a common pursuit of the criminal objective. (People v. Pinto)
C. MULTIPLE OFFENDERS (DIFFERENCES, RULES, EFFECTS)
Crimes committed
Recidivism/Reincinden cia; Art. 14 (9) Sufficient at the tme of the trial that the offender has been previously convicted by final judgment for another crime embraced in the same title of the Code on the date of his trial
Period of time the crimes are committed
No period of time
Number of crimes committed
The second conviction for an offense embraced in the same title of RPC
Habituality/Reiteracion/ Repetition; Art. 14 (10) Necessary that the offender shall have served out his sentence for the first offense
The previous and subsequent offenses must NOT be embraced in the same title of the
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QuasiRecidivism; Art. 160 Before serving or while serving sentence, the offender commits a felony (NOT a crime) Before serving or while serving sentence Offender commits a felony
Habitual Delinquency; Art. 62 (5) Specified: less serious or serious physical injuries robbery theft estafa falsification
Within 10 years from his last release or conviction Guilty the third time or oftener
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RPC If not offset by any Not always mitigating aggravating circumstance, increase circumstance the penalty only to the maximum Their effects
C. 1. RECIDIVISM
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an Imposes the An additional penalty maximum shall be imposed of the penalty for the new offense, and cannot be offset by any mitigating circumstance
Meaning of “at the time of his trial for one crime:” (a) It is employed in its general sense.
Basis: the greater perversity of the offender, as shown by his inclination to commit crimes A recidivist is one who, at the time of his trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of the Revised Penal Code. [People v. Lagarto (1991)]
(b) It is meant to include everything that is done in the course of the trial, from arraignment until after sentence is announced by the judge in open court. (c) In recidivism, it is sufficient that the succeeding offense be committed after the commission of the preceding offense provided that at the time of his trial for the second offense, the accused had already been convicted of the first offense. (d) If both offenses were committed on the same date, they shall be considered as only one, hence, they cannot be separately counted in order to constitute recidivism. Also, judgments of conviction handed down on the same day shall be considered as only one conviction. (e) To prove recidivism, it is necessary to allege the same in the information and to attach thereto certified copy of the sentences rendered against the accused. (f) Recidivism must be taken into account no matter how many years have intervened between the first and second felonies. (g) Even if the accused was granted a pardon for the first offense, but he commits
Requisites: (1) Offender is on trial for an offense (2) He was previously convicted by final judgment of another crime (a) Both the first and second offenses are embraced in the same title of the RPC (b) Offender is convicted of the new offense Note: What is controlling is the time of trial, not the time of commission of the crime. [Reyes, The RPC]
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another felony embraced in the same title of the Code, the first conviction is still counted to make him a recidivist, since pardon does not obliterate the fact of his prior conviction. (h) Example of a recidivist is when the accused was convicted previously of homicide and was now convicted of the crime of rape. Both are under Title Eight of Book Two of the RPC, Crimes against Persons. [RA 8353 also known as Anti-Rape Law of 1997 reclassified rape as a crime against persons].
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in the same title of the the Code. Code. As to frequency. Not always an Always to be taken aggravating into consideration in circumstance. fixing the penalty to be imposed upon the accused.
C. 3. QUASI-RECIDIVISM Art. 160, RPC. Commission of another crime during service of penalty imposed for another offense; Penalty. — Besides the provisions of Rule 5 of Article 62, any person who shall commit a felony after having been convicted by final judgment, before beginning to serve such sentence, or while serving the same, shall be punished by the maximum period of the penalty prescribed by law for the new felony.
C. 2. HABITUALITY (REITERACION) Basis: same as recidivism Requisites: (1) Accused is on trial for an offense (2) He previously served sentence (a) for another offense to which the law attaches an equal or greater penalty, OR (b) for two or more crimes to which it attaches lighter penalty than that for the new offense (3) He is convicted of the new offense
C. 4. HABITUAL DELINQUENCY Requisites: (1) Offender had been convicted of any of the crimes of serious or less serious physical injuries, robbery, theft, estafa, or falsification (2) After that conviction or after serving his sentence, he again committed, and, within 10 years from his release or first conviction, he was again convicted of any of the said crimes for the second time (3) After his conviction of, or after serving sentence for, the second offense, he again committed, and, within 10 years from his last release or last conviction, he was again convicted of any of said offenses, the third time or oftener. [Art. 62, RPC]
If the second offense or crime is punishable under a special law, it cannot be considered under reiteracion because Articles 13, 14, and 15 of the RPC are not applicable to special law crimes. REITERACION RECIDIVISM As to the first offense It is necessary that the It is enough that a offender shall have final judgment has served out his been rendered in the sentence for the first first offense. offense. As to the kind of offenses involved The previous and Requires that the subsequent offenses offenses be included must not be embraced in the same title of
Purpose of the law in imposing additional penalty: To render more effective social defense and the reformation of habitual delinquents (Reyes, quoting People v. Abuyen)
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D. CONTINUING CRIMES
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crime because each crime because all of act is generated by a the acts performed criminal impulse arise from one criminal resolution.
Continuing crime (continuous or continued) - A single crime, consisting of a series of acts but all arising from one criminal resolution. Cuello Calon explains the delito continuado in this way: When the actor, there being unity of purpose and of right violated, commits diverse acts, each one of which, although of a delictual character, merely constitutes a partial execution of a single particular delict, such delictual acts is called delito continuado. o Example: One who on several occasions steals wheat deposited in a granary. Each abstraction constitutes theft, but instead of imposing on the culprit different penalties for each theft committed, he is punished for only one “hurto continuado” for the total sum or value abstracted.
People v. De Leon (1926): a thief who took from a yard of a house two game roosters belonging to two different persons was ruled to have committed only one crime of theft, because there is a unity of thought in the criminal purpose of the offender. The accused was animated by a single criminal impulse. A continued crime is not a complex crime. The offender here does not perform a single act, but a series of acts, and one offense is not a necessary means for continuing the other. Hence, the penalty is not to be imposed in its maximum period.
Continuing offense - A continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy. Although there is a series of acts, there is only one crime committed. Hence, only one penalty shall be imposed.
Requisites: (1) Multiplicity of acts. (2) Unity of criminal purpose of intent. (3) Unity of criminal offense violated. Real or material Continued Crime plurality There is a series of acts performed by the offender. Each act performed The different acts constitutes a separate constitute only one
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A continued crime is different from a transitory crime (moving crime) in criminal procedure for purposes of determining venue. When a transitory crime is committed, the criminal action may be instituted and tried in the court of the municipality, city or province wherein any of the essential ingredients thereof took place. While Article 48 speaks of a complex crime where a single act constitutes two or more grave or less grave offenses, those cases involving a series of acts resulting in two or more grave and less grave felonies, were considered by the Supreme Court as a complex crime when it is shown that the act is the product of one single criminal impulse. TIP: If confronted with a problem, the Supreme Court has extended this class of complex crime to those cases when the offender performed not a single act
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but a series of acts as long as it is the product of a single criminal impulse
of the crime does not fit the definition of Art 48, because there is no other provision in the RPC.
People v. Garcia (1980): The accused were convicts who were members of a certain gang and they conspired to kill the other gang. Some of the accused killed their victims in one place within the same penitentiary, some killed the others in another place within the same penitentiary. The Supreme Court ruled that all accused should be punished under one information because they acted in conspiracy. The act of one is the act of all. Because there were several victims killed and some were mortally wounded, the accused should be held for the complex crime of multiple homicide with multiple frustrated homicide. There is a complex crime not only when there is a single act but a series of acts. It is correct that when the offender acted in conspiracy, this crime is considered as one and prosecuted under one information. Although in this case, the offenders did not only kill one person but killed different persons, the Supreme Court considered this as complex.
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Applying the concept of the “continued crime”, the following cases have been treated as constituting one crime only: (1) People v. Tumlos, (1939): The theft of 13 cows belonging to two different persons committed by the accused at the same place and period of time; (2) People v. Jaranilla, (1974): The theft of six roosters belonging to two different owners from the same coop and at the same period of time; (3) People v. Sabbun, (1964): The illegal charging of fees for service rendered by a lawyer every time he collected veteran’s benefits on behalf of a client who agreed that attorney’s fees shall be paid out of such benefits. The collections of legal fees were impelled by the same motive, that of collecting fees for services rendered, and all acts of collection were made under the same criminal impulse. The Supreme Court declined to apply the concept in the following cases: (1) People v. Dichupa, (1961): Two estafa cases, one which was committed during the period from January 19 to December, 1955 and the other from January 1956 to July 1956. Said acts were committed on two different occasions; (2) People v. CIV: Several malversations committed in May, June and July 1936 and falsifications to conceal said offenses committed in August and October, 1936. The malversations and falsifications were not the result of one resolution to embezzle and falsify;
Whenever the Supreme Court concludes that the criminals should be punished only once, because they acted in conspiracy or under the same criminal impulse: it is necessary to embody these crimes under one single information. It is necessary to consider them as complex crimes even if the essence
In the THEFT cases: The trend is to follow the single larceny doctrine: 34
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(a) taking of several things, (b) whether belonging to the same or different owners, (c) at the same time and place, constitutes one larceny only.
PLURALITY OF CRIMES There is no conviction for any of the crimes committed.
Abandoned is the doctrine that the government has the discretion to prosecute the accused for one offense or for as many distinct offenses as there are victims.
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RECIDIVISM There must be conviction by final judgment of the first or prior offense.
A Complex crime is not just a matter of penalty, but of substance under the Revised Penal Code.
Kinds of Plurality of Crimes (1) Real or Material Plurality (a) There are different crimes in law as well as in the conscience of the offender. (b) In such cases, the offender shall be punished for each and every offense that he committed. (2) Formal or Ideal Plurality (a) There is but one criminal liability in this kind of plurality. (b) Divided into 3 groups: (i) Complex Crimes - When the offender commits either of the complex crimes defined in Art. 48 of the Code. (ii) Special Complex Crimes - When the law specifically fixes a single penalty for 2 or more offenses committed. (iii) Continuing and Continued Crimes - A single crime consisting of a series of acts but all arising from one criminal resolution.
Note: The concept of delito continuado has been applied to crimes under special laws since in Art. 10, the RPC shall be supplementary to special laws, unless the latter provides the contrary.
E. COMPLEX CRIMES AND SPECIAL COMPLEX CRIMES Plurality of Crimes (Concursu de delitos) (1) Consists of the successive execution (2) by the same individual (3) of different criminal acts (4) for any of which no conviction has yet been declared. Philosophy behind plural crimes Through the concept of plural crimes, several crimes are treated as one. The purpose of this is to allow leniency towards the offender, who, instead of being made to suffer distinct penalties for every resulting crime, is made to suffer one penalty only, although it is the penalty for the most serious one and is imposed in its maximum period.
E. 1. COMPLEX CRIMES Art. 48. Penalty for complex crimes. When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its
Note: If by complexing the crime, the penalty would turn out to be higher, do not complex anymore.
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separate offenses or may be absorbed by the grave felony.
maximum period Art. 48 requires the commission of at least 2 crimes. But the two or more GRAVE or LESS GRAVE felonies must be: (1) the result of a single act, or (2) an offense must be a necessary means for committing the other.
Illustration: When the crime is committed by force or violence, slight physical injuries are absorbed. Reason: the slight physical injuries are the necessary consequence of the force or violence inherent in the crime.
Nature of complex crimes Although two or more crimes are actually committed, they constitute only one crime in the eyes of the law, and in the conscience of the offender. Even in the case where an offense is a necessary means for committing the other, the evil intent of the offender is only one. Hence, there is only one penalty imposed for the commission of a complex crime.
So that when an offender performed more than one act, although similar, if they result in separate crimes, there is no complex crime at all, instead, the offender shall be prosecuted for as many crimes as are committed under separate information.
TWO KINDS OF COMPLEX CRIMES (1) Compound Crime (Delito Compuesto) A single act results in two or more grave or less grave felonies. Requisites: (1) That only a single act is performed by the offender (2) That the single acts produces: (a) 2 or more grave felonies, or (b) 1 or more grave and 1 or more less grave felonies, or (c) 2 or more less grave felonies
Article 48 DOES NOT apply to acts penalized under Article 365 of the Revised Penal Code. Article 48 is a procedural device allowing single prosecution of multiple felonies falling under either of two categories: (1) when a single act constitutes two or more grave or less grave felonies (thus excluding from its operation light felonies46); and (2) when an offense is a necessary means for committing the other. The legislature crafted this procedural tool to benefit the accused who, in lieu of serving multiple penalties, will only serve the maximum of the penalty for the most serious crime. In contrast, Article 365 is a substantive rule penalizing not an act defined as a felony but "the mental attitude behind the act, the dangerous recklessness, lack of care or foresight, a single mental attitude regardless of the resulting consequences. Thus, Article 365 was crafted as one quasicrime resulting in one or more consequences. (Ivler v. Modesto-San Pedro [2010])
Single Act
Several Acts Submachine gun – because Throwing a of the number of bullets hand grenade released A single bullet Firing of the revolver twice killing two in succession person
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Light felonies produced by the same act should be treated and punished as 36
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Example of a compound crime: The victim was killed while discharging his duty as barangay captain to protect life and property and enforce law and order in his barrio.
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(4) When the offender already had in his possession the funds which he misappropriated, the subsequent falsification of a public or official document involving said offense is a separate offense. (5) No complex crime where one of the offenses is penalized by a special law. (6) There is no complex crime of rebellion with murder, arson, robbery, or other common crimes (People v. Hernandez; Enrile v. Salazar). (7) In case of continuous crimes. (8) When the other crime is an indispensable element of the other offense.
The crime is a complex crime of homicide with assault upon a person in authority. When in obedience to an order several accused simultaneously shot many persons, without evidence how many each killed, there is only a single offense, there being a single criminal impulse. (2) Complex Crime Proper (Delito Complejo) An offense is a necessary means for committing the other. In complex crime, when the offender executes various acts, he must have a single purpose. But: When there are several acts performed, the assumption is that each act is impelled by a distinct criminal impulse, hence each will have a separate penalty.
General rules in complexing crimes: (1) When two crimes produced by a single act are respectively within the exclusive jurisdiction of two courts of different jurisdiction, the court of higher jurisdiction shall try the complex crime. (2) The penalty for complex crime is the penalty for the most serious crime, the same to be applied in its maximum period. (3) When two felonies constituting a complex crime are punishable by imprisonment and fine, respectively, only the penalty of imprisonment should be imposed. (4) Art. 48 applies only to cases where the Code does not provide a definite specific penalty for a complex crime. (5) One information should be filed when a complex crime is committed. (6) When a complex crime is charged and one offense is not proven, the accused can be convicted of the other.
Requisites: (1) That at least two offenses are committed (2) That one or some of the offenses must be necessary to commit the other (3) That both or all the offenses must be punished under the same statute. (4) Note: The phrase “necessary means” does not mean “indispensable means” No complex crime proper: (1) Subsequent acts of intercourse, after forcible abduction with rape, are separate acts of rape. (2) Not complex crime when trespass to dwelling is a direct means to commit a grave offense. (3) No complex crime, when one offense is committed to conceal the other.
Rules in Article 48 are NOT applicable: (1) When the crimes subject of the case have common elements; (2) When the crimes involved are subject to the rule of absorption of one crime by the other; (3) Where the two offenses resulting from a single act are specifically punished as a 37
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single crime, such as less serious physical injuries with serious slander of deed, since this is punished under Article 265 par. 2, as the single crime of less serious physical injuries with ignominy; (4) In special complex crimes or composite crimes;
E. 2. SPECIAL COMPLEX/COMPOSITE CRIMES The substance is made up of more than one crime but which in the eyes of the law is only: (a) a single indivisible offense. (b) all those acts done in pursuance of the crime agreed upon are acts which constitute a single crime. Special Complex Crimes (1) Robbery with Homicide (Art. 294 (1)) (2) Robbery with Rape (Art. 294 (2)) (3) Robbery with Arson (4) Kidnapping with serious physical injuries (Art. 267 (3)) (5) Kidnapping with rape (6) Rape with Homicide (Art. 335) (7) Arson with homicide When crimes involved cannot be legally complexed: (1) Malicious obtention or abusive service of search warrant (Art. 129) with perjury; (2) Bribery (Art. 210) with infidelity in the custody of prisoners; (3) Maltreatment of prisoners (Art. 235) with serious physical injuries; (4) Usurpation of real rights (Art. 312) with serious physical injuries; and (5) Abandonment of persons in danger (Art. 275) and crimes against minors (Art. 276 to 278) with any other felony.
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II. Circumstances Affecting Criminal Liability JUSTIFYING
EXEMPTING THERE IS A NO WRONG WRONG No criminal No criminal liability liability With civil liability No civil liability Except: Except: accident; state of necessity insuperable cause
MITIGATING AGGRAVATING ALTERNATIVE THERE IS A THERE IS A THERE IS A FELONY FELONY FELONY Decreased Increased criminal Increased or criminal liability liability decreased liability With civil liability
Imputability – is the quality by which an act may be ascribed to a person as its author or owner. It implies that the act committed has been freely and consciously done and may, therefore, be put down to the doer as his very own
With civil liability
With civil liability
Justifying Circumstances – those where the act of a person is said to be in accordance with law, so that such person is deemed not to have transgressed the law and is free from both criminal and civil liability. There is no civil liability except in par. 4, Art. 11, where the civil liability is borne by the persons benefited by the act.
Responsibility – is the obligation of suffering the consequences of crime. It is the obligation of taking the penal and civil consequences of the crime.
Basis: Lack of dolo
Imputability distinguished from responsibility – while imputability implies that a deed may be imputed to a person, responsibility implies that the person must take the consequences of such a deed.
Guilt – is an element of responsibility, for a man cannot be made to answer for the consequences of a crime unless he is guilty. [Reyes, The RPC]
The burden of proof rests on the accused, who must prove the circumstance by clear and convincing evidence. There is NO crime committed, the act being justified. Thus, such persons cannot be considered criminals.
Par. 1. Self Defense Includes not only the defense of the person or body of the one assaulted but also that of his rights, the enjoyment of which is protected by law. It includes: (a) The defense of honor. Hence, a slap on the face is considered as unlawful aggression since the face represents a person and his dignity. [Rugas vs. People] (b) The defense of property rights can be invoked if there is an attack upon the property although it is not coupled with an attack upon the person of the owner of the premises. All the
A. JUSTIFYING CIRCUMSTANCES SIX Justifying Circumstances: (1) Self defense (2) Defense of relatives (3) Defense of strangers (4) Avoidance of a greater evil (5) Fulfillment of duty (6) Obedience to an order issued for some lawful purpose.
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elements for justification must however be present. [People v. Narvaez]
Subjects of Self-Defense: (a) Defense of Person (b) Defense of Rights (c) Defense of Property (d) Defense of Honor Self-defense is lawful because: (a) Impulse of self-preservation; (b) State cannot provide protection for each of its constituents.
Elements: (1) Unlawful aggression (2) Reasonable necessity of means employed to prevent or repel it. (3) Lack of sufficient provocation on the part of the person defending himself.
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Unlawful aggression must also be a continuing circumstance or must have been existing at the time the defense is made. Once the unlawful aggression is found to have ceased, the one making the defense of a stranger would likewise cease to have any justification for killing, or even just wounding, the former aggressor. [People vs. Dijan (2002)] Not merely oral threats or threatening stance or posture; Mere belief of an impending attack is not sufficient. BUT in relation to “mistake of fact,” the belief of the accused may be considered in determining the existence of unlawful aggression When intent to attack is manifest, picking up a weapon is sufficient unlawful aggression
Lawful aggression: In fulfilment of a duty or in the exercise of a right.
Note: If there is unlawful aggression but one of the other requisites is lacking, it is considered an incomplete self-defense, which is a mitigating circumstance. The first two elements also apply to defense of relative and defense of stranger.
Note: No unlawful aggression when there was an agreement to fight and the challenge to fight was accepted. BUT aggression which is ahead of an agreed time or place is unlawful aggression.
Unlawful aggression Equivalent to an actual physical assault; OR threatened assault of an immediate and imminent kind which is offensive and positively strong, showing the wrongful intent to cause harm. The aggression must constitute a violation of the law. When the aggression ceased to exist, there is no longer a necessity to defend one’s self. EXCEPT: when the aggressor retreats to obtain a more advantageous position to ensure the success of the initial attack, unlawful aggression is deemed to continue. Must come from the person attacked by the accused.
Stand ground when in the right – the law does not require a person to retreat where he has a right to be and his assailant is rapidly advancing upon him with a deadly weapon. [United States v. Domen (1917)] Reasonable necessity of means employed to prevent or repel it Involves two elements: necessity for the course of action, and necessity of the means employed, which should be reasonable
TEST OF REASONABLENESS The means employed depends upon: (1) nature and quality of the weapon used by the aggressor 40
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(2) aggressor’s physical condition, character, size, and other circumstances (3) and those of the person defending himself (4) the place and occasion of the assault. This element should be interpreted liberally in favour of the law-abiding citizen. Perfect equality between the weapons used by the one defending himself and that of the aggressor is not required, neither is the material commensurability between the means of attack and defense. Rational equivalence is enough. Reason: Because the person assaulted does not have sufficient tranquility of mind to think and to calculate.
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People v. Alconga, et al. (1947): Barion went to the guardhouse where accused Alconga was doing his duties as “home guard.” While the accused was seated, the deceased swung at him with his pingahan (piece of bamboo). The accused was able to avoid the blow however, by falling to the ground under the bench, with the intention of crawling out of the guardhouse. The accused was able to go out of the guardhouse by crawling, and when the deceased was delivering the third blow, the accused (still in his crawling position), fired at the deceased with his revolver. The deceased got up and drew his dagger this time, while the accused used his bolo and hand-to-hand fight commenced. The deceased obtained several wounds and ran away, only to be followed by the accused, and another fight happened. The deceased sustained more injuries including the mortal bolo blow, and he fell to the ground.
Lack of sufficient provocation on part of defender In case there was a provocation on the part of the person attacked, the attack should not immediately precede the provocation for defense to be valid. Never confuse unlawful aggression with provocation. Mere provocation is not enough. It must be real and imminent. Unlawful aggression is an indispensable requisite.
Held: In the initial stage of the fight, the accused was acting in self-defense. However, when he chose to run after the deceased, he was no longer acting in self-defense for there was no more aggression to defend against and he could have chosen to stay where he was. The unlawful aggression had already ceased and therefore, his right to self-defense had ceased as well. (a) Defense of Honor: People v. Dela Cruz (1935): Accused Dela Cruz was found guilty of homicide for stabbing and killing Rivera. Dela Cruz claimed that on her way home one evening, Rivera followed her, embraced and kissed her and touched her private parts. She didn’t know that it was Rivera and that she was unable to resist the strength of Rivera so she got a knife from her pocket and stabbed him in defense of her honor.
Retreat of aggressor – aggression ceases, except when retreat is made to take a more advantageous position to insure the success of the attack, unlawful aggression continues.
Held: She is justified in using the pocketknife in repelling what she believed to be an attack upon her honor. It was a dark night and she could not have identified Rivera. There being 41
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no other means of self-defense.
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property rights when Fleischer angrily ordered the continuance of the fencing. The third element of self-defense is also present because there was no sufficient provocation on the part of Narvaez since he was sleeping when the deceased where fencing.
People v. Jaurigue (1946): Amado (deceased) has been courting the accused Avelina in vain. On the day of the crime, Avelina and Amado were in Church. Amado sat beside Avelina and placed his hand on her thigh. Thereafter, Avelina took out her knife and stabbed Amado in the neck, causing the death of Amado.
However, the second element was lacking. Shooting the victims from the window of his house is disproportionate to the physical aggression by the victims. Thus, there is incomplete self-defense.
Held: Although the defense of one’s honor exempts one from criminal liability, it must be proved that there is actual danger of being raped. In this case, 1) the church was well-lit, 2) there were several people in the church, including the father of the accused and other town officials. In light of these circumstances, accused could not have possibly been raped. The means employed in defense of her honor was evidently excessive.
(c) Defense of Reputation: People v. Chua Hiong (1954): Cesario Gocheco, a nephew of the accused wrote an article entitled “Doubtful Citizenship” assailing and questioning defendant’s citizenship. In response to this defendant wrote a column saying that Gocheco only wants “personal revenge” and that this is “the moving passion in this drama of intrigues and persecution to which I and my family have been subjected.” He further claims that Solipco, who wrote him a threatening letter and gave him a rope which implies that he should just hang himself, is also the same Gocheco. Prior to this series of events it is known upon the Court that Gocheco and defendant had faced each other in a civil case in which Gocheco lost 2/3 of important inheritance to Chua Hiong. The defendant was then charged with libel.
(b) Defense of Property: People vs. Apolinar: This can only be invoked as justifying circumstance if Life and limb of the person making the defense is also the subject of unlawful aggression Life cannot be equal to property. People v. Narvaez (1983): Narvaez was taking his rest inside his house when he heard that the wall of his house was being chiseled. He saw that Fleischer and Rubia, were fencing the land of the father of the deceased Fleischer. He asked the group to stop but they refused. The accused got mad so he got his shotgun and shot Fleischer. Rubia ran towards the jeep and knowing there is a gun on the jeep, the accused fired at Rubia as well. Narvaez claimed he acted in defense of his person and rights.
Held: Defendant is acquitted from charges of libel by the justification of his action through defense of reputation. If one’s reputation had been attacked by another he is justified to hit back with another libel but only if such libel is adequate to the first attack. Par. 2. Defense of Relatives Elements: (1) Unlawful aggression (a) Unlawful aggression may not exist as a matter of fact; it can be made to depend upon the honest belief of the one making the defense.
Held: There was aggression by the deceased not on the person of the accused but on his 42
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(b) Reason: The law acknowledges the possibility that a relative, by virtue of blood, will instinctively come to the aid of their relatives. (2) Reasonable necessity of means employed to prevent or repel it (3) Lack of suffcient provocation on part of relative, or, in case of provocation, the one making the defense had no part therein (a) Although the provocation prejudices the person who gave it, its effects do not reach the defender who took no part therein, because the latter was prompted by some noble or generous sentiment in protecting and saving a relative
(3) The person defending was not induced by revenge, resentment or other evil motive. Note: Motive is relevant only in this kind of defense.
Basis: It is found not only upon a humanitarian sentiment, but also upon the impulse of blood which impels men to rush, on the occasion of great perils, to the rescue of those close to them by ties of blood.
Elements: (1) Evil sought to be avoided actually exists (2) The evil or injury sought to be avoided must not have been produced by the one invoking the justifying circumstances. (3) Injury feared be greater than that done to avoid it (4) There is no other practical & less harmful means of preventing it.
Stranger – any person not included in the enumeration of relatives under [par. 2 of Art. 11] If the person being defended is a second cousin, it will be defense of stranger. Basis: What one may do in his defense, another may do for him. The ordinary man would not stand idly by and see his companion killed without attempting to save his life. Par. 4. Avoidance of a Greater Evil
Relatives entitled to defense: (1) Spouse (2) Ascendants (3) Descendants (4) Legitimate, natural or adopted Brothers/Sisters (5) Relatives by Affinity in the same degree (6) Relatives by Consanguinity w/in the 4th civil degree
General rule: No civil liability in justifying circumstances because there is no crime. Exception: There is CIVIL LIABILITY under this paragraph. Persons benefited shall be liable in proportion to the benefit which they have received.
There is no distinction in the Revised Penal Code whether the descendant should be legitimate or illegitimate; when the law does not extinguish, the courts cannot distinguish.
Ty v. People (2004): Ty's mother and sister were confined at the Manila Doctors' Hospital. Ty signed the "Acknowledgment of Responsibility for Payment" in the Contract of Admission. The total hospital bills of the two patients amounted to P1,075,592.95. Ty executed a promissory note wherein she assumed payment of the obligation in installments. To assure payment of the obligation, she drew 7 postdated checks against Metrobank payable
Par. 3. Defense of Strangers Elements: (1) Unlawful aggression; (2) Reasonable necessity of the employed to prevent or repel it;
means
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If the first condition is present, but the second is not because the offender acted with culpa, the offender will be entitled to a privileged mitigating circumstance. The penalty would be reduced by one or two degrees.
to the hospital which were all dishonored by the drawee bank due to insufficiency of funds. As defense, Ty claimed that she issued the checks because of “an uncontrollable fear of a greater injury.” She averred that she was forced to issue the checks to obtain release for her mother who was being inhumanely treated by the hospital. She alleged that her mother has contemplated suicide if she would not be discharged from the hospital. Ty was found guilty by the lower courts of 7 counts of violation of BP22.
People v. Ulep (2000): Accused-appellant and the other police officers involved originally set out to restore peace and order at Mundog Subdivision where the victim was then running amuck. The victim threatened the safety of the police officers despite accused-appellant's previous warning shot and verbal admonition to the victim to lay down his weapon.
Held: The court sustained the findings of the lower courts. The evil sought to be avoided is merely expected or anticipated. So the defense of “an uncontrollable fear of a greater injury” is not applicable. Ty could have taken advantage of an available option to avoid committing a crime. By her own admission, she had the choice to give jewelry or other forms of security instead of postdated checks to secure her obligation.
Held: As a police officer, it is to be expected that accused-appellant would stand his ground. Up to that point, his decision to respond with a barrage of gunfire to halt the victim's further advance was justified under the circumstances. A police officer is not required to afford the victim the opportunity to fight back. Neither is he expected – when hard pressed and in the heat of such an encounter at close quarters – to pause for a long moment and reflect coolly at his peril, or to wait after each blow to determine the effects thereof. But he cannot be exonerated from overdoing his duty when he fatally shot the victim in the head, even after the latter slumped to the ground due to multiple gunshot wounds sustained while charging at the police officers. Sound discretion and restraint dictated that a veteran policeman should have ceased firing at the victim the moment he saw the latter fall to the ground. The victim at that point no longer posed a threat. Shooting him in the head was obviously unnecessary.
Moreover, for the defense of state of necessity to be availing, the greater injury feared should not have been brought about by the negligence or imprudence, more so, the willful inaction of the actor. In this case, the issuance of the bounced checks was brought about by Ty's own failure to pay her mother's hospital bills. Par. 5. Fulfillment of Duty or Lawful Exercise of Right or Office Elements: (1) Offender acted in performance of duty or in the lawful exercise of a right or office; (2) That the injury caused or the offense committed be the necessary consequence of the due performance of duty or the lawful exercise of such right or office.
The law does not clothe police officers with authority to arbitrarily judge the necessity to kill- it must be stressed that their judgment and discretion as police officers in the performance of their duties must be exercised neither capriciously nor oppressively, but 44
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within reasonable limits.
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of a duty. The deceased was under the obligation to surrender and had no right, after evading service of his sentence, to commit assault and disobedience with a weapon in his hand, which compelled the policeman to resort to such extreme means, which, although it proved to be fatal, was justified by the circumstance.
Mamagun v. People (2007): A policeman in pursuit of a snatcher accidentally shot one of the bystanders who were actually helping him chase the snatcher. Held: To be sure, acts in the fulfillment of a duty, without more, do not completely justify the petitioner’s firing the fatal gunshot at the victim. True, petitioner, as one of the policemen responding to a reported robbery then in progress, was performing his duty as a police officer as well as when he was trying to effect the arrest of the suspected robber and in the process, fatally shoot said suspect, albeit the wrong man. However, in the absence of the equally necessary justifying circumstance that the injury or offense committed be the necessary consequence if the due performance of such duty, there can only be incomplete justification, a privilege mitigating circumstance under Art. 13 and 69 of the RPC. There can be no quibbling that there was no rational necessity for the killing of Contreras. Petitioner could have first fired a warning shot before pulling the trigger against Contreras who was one of the residents chasing the suspected robber.
Doctrine of “SELF-HELP” Article 429 of the Civil Code is applicable under this paragraph. The article states, “The owner or lawful possessor of a thing has the right to exclude any person from the enjoyment and disposal thereof.” For this purpose, he may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property. The actual invasion of property may consist of a mere disturbance of possession or of a real dispossession. If it is a mere disturbance of possession, force may be used against it at any time as long as it continues, even beyond the prescriptive period of forcible entry. If the invasion consists of a real dispossession, force to regain possession can be used only immediately after the dispossession.
People v. Delima (1922): Napilon escaped from the jail where he was serving sentence. Some days afterwards the policeman, Delima, who was looking for him found him in the house of Alegria, armed with a pointed piece of bamboo in the shape of a lance. Delima demanded the surrender of the weapon but Napilon refused. Delima fired his revolver to impose his authority but the bullet did not hit him. The criminal ran away and Delima went after him and fired again his revolver, this time hitting and killing him.
Par. 6. Obedience to an order issued for some lawful purpose Elements: (1) Order must have been issued by a superior (2) The order is for some lawful purpose (3) The means used to carry it out must be lawful (a) A subordinate is not liable for carrying out an illegal order of his superior if he is not aware of the illegality of the order and he is not negligent.
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People v. Oanis (1943): Although an officer in making a lawful arrest is justified in using such force as is reasonably necessary to secure and detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes, and protect himself from bodily harm, yet he is never justified in using unnecessary force or in treating him with wanton violence or in resorting to dangerous means when the arrest could be effected otherwise.
criminal, so there is civil liability (Except: Art. 12, par. 4 there is civil liability).
ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT OF 2004 (RA 9262) Battery – any act of inflicting physical harm upon the woman or her child resulting in physical and psychological or emotional distress.
People v. Beronilla (1955): Held: Where the accused acted upon orders of superior officers that they, as military subordinates, could not question, and obeyed in good faith, without being aware of their illegality, without any fault or negligence on their part, the act is not accompanied by criminal intent. A crime is not committed if the mind of the person performing the act be innocent.
JUSTIFYING VS. CIRCUMSTANCE JUSTIFYING CIRCUMSTANCE It affects the act, not the actor. The act is considered to have been done within the bounds of law; hence, legitimate and lawful in the eyes of the law.
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Battered Woman - Woman “who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without concern for her rights.” Battered Woman Syndrome- refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse.
EXEMPTING
EXEMPTING CIRCUMSTANCE It affects the actor, not the act.
Battered Woman Syndrome as a Defense. – Victim-survivors who are found by the courts to be suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of selfdefense under the Revised Penal Code.
The act complained of is actually wrongful, but the actor is not liable.
Since the act complained of is actually wrong, there Since the act is is a crime but since considered lawful, the actor acted there is no liability. without voluntariness or negligence, there is no dolo or culpa. There is no criminal or There is a crime, civil liability. although there is no
In the determination of the state of mind of the woman who was suffering from battered woman syndrome at the time of the commission of the crime, the courts shall be assisted by expert psychiatrists/ psychologists [SECTION 26, RA 9262]
The battered woman syndrome is characterized by a “CYCLE OF VIOLENCE”,
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which is made up of three phases [People v. Genosa].
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Note: For the BWS to be available as a defense, it must be proven that there has been more than one cycle. [People v. Genosa (2004)]
(1) First Phase: Tension Building Phase Where minor battering occurs, it could be a verbal or slight physical abuse or another form of hostile behavior. The woman tries to pacify the batterer through a show of kind, nurturing behavior, or by simply staying out of the way. But this proves to be unsuccessful as it only gives the batterer the notion that he has the right to abuse her.
B. EXEMPTING CIRCUMSTANCES EXEMPTING CIRCUMSTANCES: 1. Imbecility/Insanity 2. Minority 3. Accident 4. Compulsion of irresistible force 5. Impulse of uncontrollable fear 6. Insuperable or lawful cause Exempting circumstances – those grounds for exemption from punishment because there is wanting in the agent of the crime any of the conditions which make the act voluntary or negligent.
(2) Second Phase: Acute Battering Incident Characterized by brutality, destructiveness, and sometimes death. The battered woman has no control; only the batterer can stop the violence. The battered woman realizes that she cannot reason with him and resistance would only worsen her condition.
The reason for the exemption lies on the complete absence of intelligence, freedom of action, or intent, or on the absence of negligence on the part of the accused.
(3) Third Phase: Tranquil Period Characterized by guilt on the part of the batterer and forgiveness on the part of the woman. The batterer may show a tender and nurturing behavior towards his partner and the woman also tries to convince herself that the battery will never happen again and that her partner will change for the better.
PAR. 1. INSANITY OR IMBECILITY Imbecile - One who, while advanced in age, has a mental development comparable to that of a child between 2 and 7 years of age. Exempt in all cases from criminal liability Insane - There is a complete deprivation of intelligence in committing the act but capable of having lucid intervals. Mere abnormality of mental faculties is not enough especially if the offender has not lost consciousness of his acts.
Four Characteristics of the Syndrome: (1) The woman believes that the violence was her fault; (2) She has an inability to place the responsibility for the violence elsewhere; (3) She fears for her life and/or her children’s life (4) She has an irrational belief that the abuser is omnipresent and omniscient.
During a lucid interval, the insane acts with intelligence and thus, is not exempt from criminal liability. Insanity is a defense in the nature of confession and avoidance and must be proved beyond reasonable doubt. 47
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Both coginition and volition tests are applied. There must be complete deprivation of the intellect or will or freedom.
Evidence of insanity must refer to: a. the time preceding the act under prosecution or b. at the very moment of its execution.
Presumption is always in favor of sanity; the defense must prove that the accused was insane at the time of the commission of the crime.
Insanity subsequent to commission of crime is not exempting Feeblemindedness is not imbecility. It is necessary that there is a complete deprivation of intelligence in committing the act, that is, the accused be deprived of reason, that there is no responsibility for his own acts; that he acts without the least discernment; that there be complete absence of the power to discern, or that there be a complete deprivation of the freedom of the will. [People vs. Formigones,
Juridical Effects of Insanity 1. If present at the time of the commission of the crime – EXEMPT from liability. 2. If present during trial – proceedings will be SUSPENDED and accused is committed to a hospital. 3. After judgment or while serving sentence – Execution of judgment is SUSPENDED, the accused is committed to a hospital. The period of confinement in the hospital is counted for the purpose of the prescription of the penalty.
1950] Cases covered under this article: 1. Dementia praecox [People v. Bonoan,
1937]
Basis: Complete absence of intelligence
Note: Cited in OLD cases, but is a term no
longer used by mental health practitioners 2. Somnambulism: sleep-walking [People vs. Taneo, 1933]
PAR. 2. & 3. MINORITY (SUPERSEDED BY RA 9344)
3. Malignant malaria: which affects the nervous system [People v. Lacena]
Juvenile Justice and Welfare Act of 2006 (R.A. 9344); also refer to Child and Youth Welfare Code (P.D. 603, as amended)
People vs. Dungo, 1991: The insanity that is exempting is limited only to mental aberration or disease of the mind and must completely impair the intelligence of the accused.
What is the Juvenile Justice and Welfare System? "Juvenile Justice and Welfare System" refers to a system dealing with children at risk and children in conflict with the law, which provides child-appropriate proceedings, including programs and services for prevention, diversion, rehabilitation, re-integration and aftercare to ensure their normal growth and development.
Two tests of insanity: 1. The test of COGNITION, or whether the accused acted with complete deprivation of intelligence in committing the said crime; 2. The test of VOLITION, or whether the accused acted in total deprivation of freedom of will. [People vs. Rafanan, 1991]
[Title V: Juvenile Justice and Welfare System of RA 9344] a. Definition of child in conflict with the law
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Sec. 4 (e). "Child in conflict with the law" – a child who is alleged as, accused of, or adjudged as, having committed an offense under Philippine laws.
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3. The physical appearance of the child, and 4. Other relevant evidence. In case of doubt as to the child’s age, it shall be resolved in his/her favor.
b. Minimum age of criminal responsibility RA 9344, Sec. 6. Minimum Age of Criminal Responsibility. - A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an intervention program pursuant to Section 20 of this Act.
d. Exemption from criminal liability 1.
15 yrs old or below at the time of commission of offense: ABSOLUTELY EXEMPT from criminal liability but subject to intervention program 2. Over 15 yrs old but below 18: EXEMPT from criminal liability & subject to intervention program If acted w/ discernment subject to diversion program 3. Below 18 yrs are exempt from: a. Status offense b. Vagrancy and Prostitution c. Mendicancy (PD1563) d. Sniffing of Rugby (PD 1619)
A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with this Act. The exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws.
Discernment – mental capacity to understand the difference between right and wrong as determined by the child’s appearance, attitude, comportment and behavior not only before and during the commission of the offense but also after and during the trial. It is manifested through: 1. Manner of committing a crime – Thus, when the minor committed the crime during nighttime to avoid detection or took the loot to another town to avoid discovery, he manifested discernment. 2. Conduct of the offender – The accused shot the victim with his sling shot and shouted “Putang ina mo”. (People v. Alcabao, 44 OG 5006)
c. Determination of Age [Sec. 7, RA 9344] Presumption: Minority of child in conflict with the law. S/he shall enjoy all the rights of a child in conflict with the law until s/he is proven to be 18 years old or older. The age of a child may be determined from: 1. The child’s birth certificate, 2. Baptismal certificate, or 3. Any other pertinent documents. In the absence of these documents, age may be based on: 1. Information from the child himself/herself, 2. Testimonies of other persons,
Automatic Suspension of Sentence – Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense charged, the court 49
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shall determine and ascertain any civil liability which may have resulted from the offense committed. However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application: Provided, however, That suspension of sentence shall still be applied even if the juvenile is already eighteen years (18) of age or more at the time of the pronouncement of his/her guilt.
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in the absence thereof, the child's nearest relative. 2. Shall give notice to the local social welfare and development officer who will determine the appropriate programs in consultation with the child and to the person having custody over the child. 3. If the parents, guardians or nearest relatives cannot be located, or if they refuse to take custody, the child may be released to any of the following: a. a duly registered nongovernmental or religious organization; b. a barangay official or a member of the Barangay Council for the Protection of Children (BCPC); c. a local social welfare and development officer; or when and where appropriate, the DSWD. 4. If the child referred to herein has been found by the Local Social Welfare and Development Office to be abandoned, neglected or abused by his parents, or in the event that the parents will not comply with the prevention program, the proper petition for involuntary commitment shall be filed by the DSWD or the Local Social Welfare and Development Office pursuant to Presidential Decree No. 603, otherwise, known as "The Child and Youth Welfare Code".
Upon suspension of sentence and after considering the various circumstances of the child, the court shall impose the appropriate disposition measures as provided in the Supreme Court Rule on Juveniles in Conflict with the Law. (Sec. 38) Discharge of the Child in Conflict with the Law Upon the recommendation of the social worker who has custody of the child, the court shall dismiss the case against the child whose sentence has been suspended and against whom disposition measures have been issued, and shall order the final discharge of the child if it finds that the objective of the disposition measures have been fulfilled. The discharge of the child in conflict with the law shall not affect the civil liability resulting from the commission of the offense, which shall be enforced in accordance with law. (Sec.
39) e. Treatment of child below age of responsibility
f. Status offenses under Sec. 57 of RA 9344
[Sec. 20, RA 9344] Sec. 57. Status Offenses. - Any conduct not considered an offense or not penalized if committed by an adult shall not be considered an offense and shall not be punished if committed by a child.
If it has been determined that the child taken into custody is fifteen (15) years old or below, the authority which will have an initial contact with the child has the duty to: 1. Immediately release the child to the custody of his/her parents or guardian, or
g. Offenses not applicable to children under Sec. 58 of RA 9344 50
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3. That the physical force must come from a third person.
Persons below eighteen (18) years of age shall be exempt from prosecution for the crime of: 1. vagrancy and prostitution under Section 202 of the Revised Penal Code, 2. mendicancy under Presidential Decree No. 1563, and 3. sniffing of rugby under Presidential Decree No. 1619,
Note: Before a force can be considered to be an irresistible one, it must produce such an effect on the individual that, in spite of all resistance, it reduces him to a mere instrument and, as such, incapable of committing the crime. (US v. Elicanal, 1916)
Such prosecution being inconsistent with the United Nations Convention on the Rights of the Child.
To be exempt from criminal liability, a person invoking irresistible force must show that the force exerted was such that it reduced him to a mere instrument who acted not only without will but against his will. [People v. Lising (1998)]
Provided, that said persons shall undergo appropriate counseling and treatment program.
Basis: Complete absence of freedom. Basis: Complete absence or lack of intelligence.
PAR. 4. ACCIDENT PAR. 6. UNCONTROLLABLE FEAR Accident - something that happens outside the sway of our will and, although coming about through some act of our will, lies beyond the bounds of humanly foreseeable consequences.
Elements: 1. That the threat which causes the fear is of an evil greater than or at least equal to, that which he is forced to commit; 2. That it promises an evil of such gravity and imminence that the ordinary man would have succumbed to it.
Under Article 12, paragraph 4, the offender is exempt not only from criminal but also from civil liability. Elements: 1. A person is performing a lawful act; 2. With due care; 3. He causes an injury to another by mere accident; 4. Without fault or intention of causing it.
A threat of future injury is not enough. The compulsion must be of such a character as to leave no opportunity to the accused for escape or self-defense in equal combat. Basis: Complete absence of freedom.
Basis: Lack of negligence and intent.
PAR. 5. IRRESISTIBLE FORCE Elements: 1. That the compulsion is by means of physical force; 2. That the physical force must be irresistible; 51
Irresistible Force
Uncontrollable Fear
Irresistible force must operate directly upon the person of the accused and the injury feared may be a lesser degree than the damage caused by
Uncontrollable fear may be generated by a threatened act directly to a third person such as the wife of the accused, but the evil feared
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must be greater or at least equal to the damage caused to avoid it. Offender employs intimidation or threat in compelling another to commit a crime.
5. Immediate vindication of a grave offense 6. Passion or obfuscation 7. Voluntary surrender 8. Voluntary plea of guilt 9. Plea to a lower offense 10. Physical defect 11. Illness 12. Analogous Circumstances
PAR. 7. INSUPERABLE OR LAWFUL CAUSES
Mitigating circumstances or causas attenuates - if present in the commission of the crime, do not entirely free the actor from criminal liability, but serve only to reduce the penalty.
Offender uses physical force or violence to compel another person to commit a crime.
Insuperable means insurmountable. A cause which has lawfully, morally or physically prevented a person to do what the law commands.
Basis: They are based on the diminution of 1) either freedom of action, 2) intelligence or intent or on the 3) lesser perversity of the offender.
Elements: 1. That an act is required by law to be done; 2. That a person fails to perform such act; 3. That his failure to perform such act was due to some lawful or insuperable cause
Voluntary surrender and plea of guiltbeing circumstances that occur after the commission of the offense, show the accused’s respect for the law (voluntary surrender) and remorse and acceptance of punishment (plea of guilt). Reduction of penalty is to benefit the accused who saved the State the trouble of utilizing limited resources (e.g., time and manpower, etc.)
Basis: Lack of intent.
People v. Bandian (1936): A woman cannot be held liable for infanticide when she left her newborn child in the bushes without being aware that she had given birth at all. Severe dizziness and extreme debility made it physically impossible for Bandian to take home the child plus the assertion that she didn’t know that she had given birth.
Ordinary v. Privileged mitigating circumstance
Ordinary MC As to offset
C. MITIGATING CIRCUMSTANCES As to effect
Mitigating Circumstances: 1. Incomplete Justification and Exemption 2. Under 18 or Over 70 years of age 3. No intention to commit so grave a wrong 4. Sufficient Provocation or Threat 52
May be offset by any aggravating circumstance If not offset by aggravating circumstance, reduces the penalty provided by law to its min period
Privileged MC Cannot be offset Reduces the penalty by one to two degrees than that provided by law for the
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69 requires that a majority of the conditions required must be present.
the crime. is
b. Incomplete justifying circumstance avoidance of greater evil or injury
Requisites: a) That the evil sought to be avoided actually exists; b) That the injury feared be greater than that done to avoid it; c) That there be no other practical and less harmful means of preventing it.
PAR. 1. INCOMPLETE JUSTIFYING OR EXEMPTING CIRCUMSTANCES Not all the requisites necessary to justify the act or to exempt from criminal liability are attendant: 1. Self-defense [Art. 11, par. 1] 2. Defense of relatives [Art. 11, par. 2] 3. Defense of strangers [Art. 11, par. 3] 4. State of necessity [Art. 11, par. 4] 5. Performance of duty [Art. 11, par. 5] 6. Obedience to the order of superiors [Art.
If any of the last two requisites is lacking, there is only a mitigating circumstance. The first element is indispensable. c. Incomplete justifying performance of duty
11, par. 6] 7. Minority over 15 years of age but below 18 years of age [Art. 12, par. 3] 8. Causing injury by mere accident [Art. 12,
par.4]
Incomplete justifying circumstances: a. Incomplete self-defense, defense of relatives, defense of stranger AGGRESSION, requisite must
as always
circumstance
of
Requisites: 1. performance of a duty or in the lawful exercise of a right or office; and 2. injury or offense be the necessary consequence of the due performance of duty or the lawful exercise of such right or office. People v. Oanis (1943): The SC considered one of the 2 requisites as constituting the majority. It seems that there is no ordinary mitigating circumstance under Art. 13 par. 1 when the justifying or exempting circumstance has 2 requisites only.
9. Uncontrollable fear [Art. 12 par. 6]
UNLAWFUL indispensable present..
of
an be
Where only one of the requisites was present, Article 69 was applied.
Par. 1 of Art. 13 is applicable only when 1. There is unlawful aggression 2. other 2 requisites are not present in any of the cases
Incomplete exempting circumstances: a. Incomplete exempting circumstance of Accident
Note: When two of the three requisites mentioned are present, the case must be considered as a privileged mitigating circumstance under Art. 69 of the Code. Article
Requisites: 1. a lawful act 2. With due care 53
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3. causes an injury to another by mere accident 4. Without fault or intention of causing it There is NO SUCH CIRCUMSTANCE because:
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c. Par. 2 contemplates the ff: 1. An offender over 15 but under 18 years of age who acted with discernment. 2. An offender fifteen or over but under 18 years of age. 3. An offender over 70 years old
MITIGATING
If the 2nd requisite (due care) and 1st part of the 4th requisite (fault)are absent, the case will fall under Art. 365 which punishes reckless imprudence.
Legal effects of various ages of offenders: 1. 15 and below - Exempting 2. Above 15 but under 18 years of ageexempting circumstance (unless he acted with discernment,Art. 12, par. 3 as amended by RA 9344). 3. Minor delinquent under 18 years of age, the sentence may be suspended.
If the 1st requisite (lawful act) and 2nd part of the 4th requisite (intention) are absent, it will be an intentional felony [Art. 4, par. 1].
[Art. 192, PD No. 603 as amended by PD 1179] 4. Under 18 – privileged mitigating [Art. 68]
b. Incomplete exempting circumstance of uncontrollable fear. Requisites: 1. threat which caused the fear was of an evil greater than, or at least equal to, than which required to commit; 2. evil of such gravity and imminence that an ordinary person would have succumbed.
5. 18 years or over, full criminal responsibility. 6. 70 years or over – mitigating, no imposition of death penalty; if already imposed. Execution of death penalty is suspended and commuted.
PAR. 3. NO INTENTION TO COMMIT SO GRAVE A WRONG (PRAETER INTENTIONEM)
Note: If only one of these requisites is present, there is only a mitigating circumstance.
PAR. 2. UNDER 18 OR OVER 70 YEARS OF AGE
Basis: Diminution of intent.
Basis: Diminution of Intelligence
There must be a notable disproportion between the means employed to execute the criminal act and its consequences
a. In lowering the penalty: Based on age of the offender at the time of the commission of the crime not the age when sentence is imposed
The intention, as an internal act, is judged not only by the proportion of the means employed by him to the evil produced by his act, but also by: 1. The weapon used 2. The part of the body injured 3. The injury inflicted 4. The manner it is inflicted
b. In suspension of the sentence: Based on age of the offender (under 18) at the time the sentence is to be promulgated (See Art. 80, RPC) 54
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secure medical treatment at the municipal dispensary.
Can also be inferred from the subsequent acts of the accused immediately after committing the offense, such as when the accused helped his victim to secure medical treatment.
PAR. 4. SUFFICIENT PROVOCATION OR THREAT Provocation – any unjust or improper conduct or act of the offended party capable of exciting, inciting, or irritating anyone
Does not apply when: 1. Crime results from criminal negligence or culpa 2. The offender employed brute force 3. The victim does not die as a result of the assult in cases of crimes against persons 4. Murder qualified by treachery
Basis: Diminution of intelligence and intent. Elements: 1. provocation must be sufficient 2. must originate from the offended party 3. That the provocation must be personal and directed to the accused 4. That the provocation must be immediate to the act, i.e., to the commission of the crime by the person who is provoked
Only applicable to offense resulting in death, physical injuries, or material harm (including property damage). It is not applicable to defamation or slander.
People v. Calleto (2002) Held: The lack of "intent" to commit a wrong so grave is an internal state. It is weighed based on the weapon used, the part of the body injured, the injury inflicted and the manner it is inflicted. The fact that the accused used a 9-inch hunting knife in attacking the victim from behind, without giving him an opportunity to defend himself, clearly shows that he intended to do what he actually did, and he must be held responsible therefor, without the benefit of this mitigating circumstance.
Threat must not be offensive and positively strong, otherwise may result to unlawful aggression justifying self-defense Provocation in order to be mitigating must be SUFFICIENT and IMMEDIATELY preceding the act. [People v. Pagal] “Sufficient” means adequate to excite a person to commit a wrong and must accordingly be proportionate to its gravity. [People v. Nabora] Sufficiency depends upon: a. the act constituting provocation b. the social standing of the person provoked c. the place and time when the provocation is made.
People v. Ural (1974): Held: The intention, as an internal act, is judged not only by the proportion of the means employed by him to the evil produced by his act, but also by the fact that the blow was or was not aimed at a vital part of the body. Thus, it may be deduced from the proven facts that the accused had no intent to kill the victim, his design being only to maltreat him, such that when he realized the fearful consequences of his felonious act, he allowed the victim to
Provocation must be immediate to the commission of the crime. Reason: When there is an interval of time between the provocation and the commission of the crime, the perpetrator has time to regain his reason. 55
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Sufficient provocation Provocation as as a requisite of mitigating incomplete self- circumstance defense
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facts, they should be treated together as one mitigating circumstance. It is clear that both circumstances arose from the same set of facts. Hence, they should not be treated as two separate mitigating circumstances.
a
It pertains to its It pertains to its absence on the part of presence on the part the person defending of the offended party. himself. [People v.
PAR. 5. IMMEDIATE VINDICATION OF A GRAVE OFFENSE
CA, G.R. No. 103613, 2001]
Basis: Diminution voluntariness.
TIP: The common set-up given in a bar problem is that of provocation given by somebody against whom the person provoked cannot retaliate; thus the person provoked retaliated on a younger brother or on the father. Although in fact, there is sufficient provocation, it is not mitigating because the one who gave the provocation is not the one against whom the crime was committed.
Elements: 1. That there be a grave offense done to the one committing the felony, his spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters, or relatives by affinity within the same degree. 2. That the felony is committed in vindication of such grave offense. A lapse of time is allowed between the vindication and the doing of the grave offense. 3. The vindication need not be done by the person upon whom the grave offense was committed
You have to look at two criteria: 1. If from the element of time, a. material lapse of time stated in the problem and b. there is nothing stated in the problem that the effect of the threat of provocation had prolonged and affected the offender at the time he committed the crime then you use the criterion based on the time element. 2. If there is that time element and at the same time, facts are given indicating that at the time the offender committed the crime, he is still suffering from outrage of the threat or provocation done to him, then he will still get the benefit of this mitigating circumstance.
of
the
conditions
of
Note: Lapse of time is allowed. The Spanish text uses “proxima.” Although the grave offense (slapping of the accused in front of many persons hours before the killing), which engendered the perturbation of mind, was not so immediate, it was held that the influence thereof, by reason of its gravity, lasted until the moment the crime was committed. [People v. Parana]. The question whether or not a certain personal offense is grave must be decided by the court, having in mind a. the social standing of the person, b. the place and c. the time when the insult was made.
Romera v. People (2004): Provocation and passion or obfuscation are not 2 separate mitigating circumstances. It is well-settled that if these 2 circumstances are based on the same 56
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Vindication of a grave offense and passion or obfuscation cannot be counted separately and independently.
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4. That said act which produced the obfuscation was not far removed from the commission of the crime by a considerable length of time, during which the perpetrator might recover his normal equanimity. [People v. Alanguilang]
People v. Torpio (2004: The mitigating circumstance of sufficient provocation cannot be considered apart from the circumstance of vindication of a grave offense. These two circumstances arose from one and the same incident, i.e., the attack on the appellant by the accused, so that they should be considered as only one mitigating circumstance.
Passion or obfuscation not applicable when: 1. The act committed in a spirit of LAWLESSNESS. 2. The act is committed in a spirit of REVENGE.
Provocation
Vindication
It is made directly only to the person committing the felony.
The grave offense may be committed against the offender’s relatives mentioned by law. The offended party must have done a grave offense to the offender or his relatives. The grave offense may be proximate, which admits of an interval of time It concerns the honor of the person.
The mitigating circumstance of obfuscation arising from jealousy cannot be invoked in favor of the accused whose relationship with the woman was illegitimate.
PAR. 6. PASSION OR OBFUSCATION (ARREBATO Y OBCECACION)
US v. De la Cruz (1912): De la Cruz, in the heat
The offense need not be a grave offense.
The provocation or threat must immediately precede the act. It is a mere spite against the one giving the provocation or threat.
Also, the act must be sufficient to produce such a condition of mind. If the cause of loss of self-control is trivial and slight, obfuscation is not mitigating. Moreover, the defense must prove that the act which produced the passion or obfuscation took place at a time not far removed from the commission of the crime. [People v. Gervacio, 1968]
of passion, killed the deceased who was his querida (lover) upon discovering her in the act of carnal communication with a mutual acquaintance. He claims that he is entitled to the mitigating circumstance of passion or obfuscation and that the doctrine in Hicks is inapplicable.
Basis: Diminution of intelligence and intent. Requisites: 1. The accused acted upon an impulse 2. The impulse must be so powerful that it naturally produces passion or obfuscation in him. 3. That there be an act, both unlawful and sufficient to produce such condition of mind; and
Held: US v. Hicks is not applicable to the case. In Hicks, the cause of the alleged passion and obfuscation of the aggressor was the convict's vexation, disappointment and deliberate anger 57
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engendered by the refusal of the woman to continue to live in illicit relations with him, which she had a perfect reason to do. In this case, the impulse upon which the defendant acted was the sudden revelation that his paramour was untrue to him and his discovery of her in flagrante in the arms of another. This was a sufficient impulse in the ordinary and natural course of things to produce the passion and obfuscation which the law declares to be one of the mitigating circumstances to be taken into the consideration of the court. Passion and Obfuscation cannot co-exist with: 1. Vindication of grave offense Exception: When there are other facts closely connected. Thus, where the deceased, had eloped with the daughter of the accused, and later when the deceased saw the accused coming, the fomer ran upstairs instead of meeting the accused and asking for forgiveness, there are 2 facts which are closely connected, namely: (1) elopement, which is a grave offense for the family of old customs, and (2) refusal to deal with him, a stimulus strong enough to produce passion. The court in People
Must arise from lawful Irresistible sentiments to be unlawful. mitigating.
Passion/Obfuscation
Irresistible force Exempting circumstance Physical force is a condition sine qua non.
is
Provocation
Passion/obfuscation Provocation comes is produced by an from the injured party. impulse which may be caused by provocation. The offense which Must immediately engenders the precede the perturbation of mind commission of the need not be crime. immediate. It is only required that the influence thereof lasts until the moment the crime is committed. In both, the effect is the loss of reason and selfcontrol on the part of the offender.
PAR. 7. VOLUNTARY SURRENDER AND CONFESSION OF GUILT Basis: Lesser perversity of the offender. Two Mitigating Circumstances under This Paragraph: 1. Voluntary surrender to a person in authority or his agents; 2. Voluntary confession of guilt before the court prior to the presentation of evidence for the prosecution. Whether or not a warrant of arrest had been issued is immaterial and irrelevant.
considered both mitigating circumstances in favor of the accused. 2. Treachery [People v. Wong] Passion/Obfuscation v. Irresistible Force
Passion/Obfuscation
force
Passion/Obfuscation v. Provocation
v. Diokno [G.R. No. L-45100],
Mitigating Circumstance Cannot give rise to physical force because it does not involves physical force. Passion/obfuscation comes from the offender himself.
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Voluntary surrender Requisites: 1. offender had not been actually arrested 2. offender surrendered himself to a person in authority or to the latter’s agent
Irresistible force comes from a third person. 58
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3. surrender was voluntary.
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power to govern and execute the laws whether as an individual or as a member of some court or governmental corporation, board or commission. A barrio captain and a barangay chairman are also persons in authority. [Art. 152, RPC, as amended by PD No. 299].
Surrender is voluntary if spontaneous showing the interest of the accused to surrender unconditionally to the authorities, either because (1) he acknowledges his guilt or (2) wishes to save them the trouble and expenses that would be necessarily incurred in his search and capture. [Andrada v. People]. If none of these two reasons impelled the accused to surrender, the surrender is not spontaneous and therefore not voluntary. [People v. Laurel].
Agent of a person in authority – is a person, who, by direct provision of law, or by election or by competent authority, is charged with the maintenance of public order and the protection and security of life and property and any person who comes to the aid of persons in authority. [Art. 152, as amended by RA 1978].
The accused must actually surrender his own person to the authorities, admitting complicity of the crime.
Time of Surrender - the RPC does not distinguish among the various moments when the surrender may occur. [Reyes, Revised Penal Code]. The fact that a warrant of arrest had already been issued is no bar to the consideration of that circumstance because the law does not require that the surrender be prior the arrest. [People v. Yecla and Cahilig]. What is important is that the surrender be spontaneous.
Merely requesting a policeman to accompany the accused to the police headquarters is not voluntary surrender. [People v. Flores]
Effect of Arrest General rule: Not mitigating when defendant was in fact arrested. [People v. Conwi]
Plea of guilt Requisites: a) offender spontaneously confessed his guilt. b) confession of guilt was made in open court, that is, before the competent court that is to try the case; and a. The extrajudicial confession made by the accused is not voluntary confession because it was made outside the court. [People v. Pardo] c) confession of guilt was made prior to the presentation of evidence for the prosecution. a. The change of plea should be made at the first opportunity when his arraignment was first set. b. A conditional plea of guilty is not mitigating.
Exceptions: 1. But where a person, after committing the offense and having opportunity to escape, voluntarily waited for the agents of the authorities and voluntarily gave up, he is entitled to the benefit of the circumstance, even if he was placed under arrest by a policeman then and there. [People v.
Parana] 2. Where the arrest of the offender was after his voluntary surrender or after his doing an act amounting to a voluntary surrender to the agent of a person in authority.
[People v. Babiera; People v. Parana] Person in authority and his agent Person in authority – is one directly vested with jurisdiction, that is, a public officer who has the 59
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c. Plea of guilt on appeal is not mitigating. d. Withdrawal of plea of not guilty before presentation of evidence by prosecution is still mitigating. All that the law requires is voluntary plea of guilty prior to the presentation of the evidence by the prosecution. A plea of guilty on an amended information will be considered as an attenuating circumstance if no evidence was presented in connection with the charges made therein.
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Also, Sec. 2, Rule 116, of the Revised Rules of Criminal Procedure requires the consent of the offended party and the prosecutor before an accused may be allowed to plead guilty to a lesser offense necessarily included in the offense charged. The prosecution rejected the offer of the accused.
PAR. 8. PHYSICAL DEFECTS Basis: Diminution of freedom of action, therefore diminution of voluntariness.
[People v. Ortiz]
No distinction between educated uneducated deaf-mute or blind persons.
Plea to a lesser offense
Rule 116, sec. 2, ROC – At arraignment, the accused, with the consent of the offended party and prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary.
and
Physical defect - being armless, cripple, or a stutterer, whereby his means to act, defend
himself or communicate with his fellow beings are limited. The physical defect that a person may have must have a relation to the commission of the crime. Where the offender is deaf and dumb, personal property was entrusted to him and he misappropriated the same, the crime committed was estafa. The fact that he was deaf and dumb is not mitigating since that does not bear any relation to the crime committed.
People v. Dawaton (2002): Information for murder was filed against Dawaton. When first arraigned he pleaded not guilty, but during the pre-trial he offered to plead guilty to the lesser offense of homicide but was rejected by the prosecution. The trial court sentenced him to death. He avers that he is entitled to the mitigating circumstance of plea of guilty.
If a person is deaf and dumb and he has been slandered, he cannot talk so what he did was he got a piece of wood and struck the fellow on the head. The crime committed was physical injuries. The Supreme Court held that being a deaf and dumb is mitigating because the only way is to use his force because he cannot strike back in any other way.
Held: While the accused offered to plead guilty to the lesser offense of homicide, he was charged with murder for which he had already entered a plea of not guilty. We have ruled that an offer to enter a plea of guilty to a lesser offense cannot be considered as an attenuating circumstance under the provisions of Art. 13 of RPC because to be voluntary the plea of guilty must be to the offense charged.
PAR. 9. ILLNESS Basis: Diminution of intelligence and intent.
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Elements: 1. illness of the offender must diminish the exercise of his will-power 2. illness should not deprive the offender of consciousness of his acts.
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1.
offeder leading the law enforcers to the place where he buried the instrument of the crime has been considered as equivalent to voluntary surrender. 2. Stealing driven to do so out of extreme poverty is considered as analogous to incomplete state of necessity. 3. Over 60 years old with failing sight, similar to over 70 years of age mentioned in par. 2. [People v. Reantillo]. 4. Voluntary restitution of stolen goods similar to voluntary surrender [People v.
It is said that this paragraph refers only to diseases of pathological state that trouble the
conscience or will. Complete loss of exercise of will-power due to illness may qualify as exempting circumstance
Luntao]. A mother who, under the influence of a puerperal fever, killed her child the day following her delivery.
5. Impulse of jealous feelings, similar to passion and obfuscation. [People v. Libria]. 6. Extreme poverty and necessity, similar to incomplete justification based on state of necessity. [People v. Macbul]. 7. Testifying for the prosecution, without previous discharge, analogous to a plea of guilty. [People v. Narvasca].
People v. Javier (1999): Javier was married to the deceased for 41 years. He killed the deceased and then stabbed himself in the abdomen. Javier was found guilty of parricide. In his appeal, he claims that he killed his wife because he was suffering from insomnia for a month and at the time of the killing, his mind went totally blank and he did not know what he was doing. He also claims that he was insane then.
Canta v. People: Canta stole a cow but alleges that he mistook the cow for his missing cow. He made a calf suckle the cow he found and when it did, Canta thought that the cow he found was really his. However, he falsified a document describing the said cow’s cowlicks and markings. After getting caught, he surrendered the cow to the custody of the authorities in the municipal hall.
Held: No sufficient evidence or medical finding was offered to support his claim. The court also took note of the fact that the defense, during the trial, never alleged the mitigating circumstance of illness. The alleged mitigating circumstance was a mere afterthought to lessen the criminal liability of the accused.
PAR. 10. ANALOGOUS CIRCUMSTANCES
Held: Canta’s act of voluntarily taking the cow to the municipal hall to place it in the custody of authorities (to save them the time and effort of having to recover the cow) was an analogous circumstance to voluntary surrender.
MITIGATING
D. AGGRAVATING CIRCUMSTANCES
Any other circumstance of similar nature and analogous to the nine mitigating circumstances enumerated in art. 13 may be mitigating.
Aggravating Circumstances – raise the penalty for a crime to its maximum period provided by
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law for that crime; or those circumstances which change the nature of the crime.
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possible qualifying circumstances were alleged and proven, only one would qualify the offense and the others would be generic aggravating.
Note: The list in this Article is EXCLUSIVE – there are no analogous aggravating circumstances.
4. INHERENT – Those that must accompany the commission of the crime and is therefore not considered in increasing the penalty to be imposed such as evident premeditation in theft, robbery, estafa, adultery and concubinage.
The aggravating circumstances must be established with moral certainty, with the same degree of proof required to establish the crime itself. According to the Revised Rules of Criminal Procedure, BOTH generic and qualifying aggravating circumstances must be alleged in the Information in order to be considered by the Court in imposing the sentence. [Rule 110,
5. SPECIAL – Those which arise under special conditions to increase the penalty of the offense and cannot be offset by mitigating circumstances such as: a. quasi-recidivism [Art. 160] b. complex crimes [Art. 48] c. error in personae [Art. 49] d. taking advantage of public position and membership in an organized/syndicated crime group
Sec. 9] Basis: Greater perversity of the offender manifested in the commission of the felony as shown by: 1. the motivating power behind the act 2. the place where the act was committed 3. the means and ways used 4. the time 5. the personal circumstance of the offender and/or of the victim
[Art. 62] Generic aggravating Qualifying aggravating circumstances circumstances The effect of a The effect of a qualifying AC is not generic AC, not only to give the crime offset by any its proper and mitigating exclusive name but circumstance, is to also to place the increase the penalty author thereof in such which should be a situation as to imposed upon the deserve no other accused to the penalty than that MAXIMUM PERIOD. specially prescribed by law for said crime. The circumstance It is not an ingredient affects the nature of of the crime. It only the crime itself such affects the penalty to that the offender shall be imposed but the be liable for a more crime remains the serious crime. The same circumstance is
Kinds 1. GENERIC – Those that can generally apply to all crimes. Nos. 1, 2, 3 (dwelling), 4, 5, 6, 9, 10, 14, 18, 19, and 20 except “by means of motor vehicles”. A generic aggravating circumstance may be offset by a generic mitigating circumstance. 2. SPECIFIC – Those that apply only to particular crimes. Nos. 3 (except dwelling), 15, 16, 17 and 21. 3. QUALIFYING –Those that change the nature of the crime. Art. 248 enumerate the qualifying AC which qualifies the killing of person to murder. If two or more 62
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execution of the act or their cooperation therein. [Art. 62, par. 4].
actually an ingredient of the crime Being an ingredient of The circumstance the crime, it cannot be can be offset by an offset by any ordinary mitigating mitigating circumstance circumstance
D.1. GENERIC Aggravating Circumstances under Art. 14: 1. Taking Advantage of Public Office 2. In Contempt of or With Insult to Public Authorities 3. With Insult or Lack of Regard Due to Offended Party by Reason of Rank, Age or Sex; Or Committed in Dwelling 4. Abuse Of Confidence And Obvious Ungratefulness 5. Crime In Palace Or In Presence Of The Chief Executive; Or Place of Religious Worship 6. Nighttime; Uninhabited Place; With A Band 7. On Occasion Of A Calamity 8. Aid Of Armed Men Or Means To Ensure Impunity 9. Recidivism 10. Reiteracion or Habituality 11. Price, Reward Or Promise 12. Inundation, Fire, Poison 13. Evident Premeditation 14. Craft, Fraud Or Disguise 15. Superior Strength Or Means To Weaken Defense 16. Treachery 17. Ignominy 18. Unlawful Entry 19. Breaking Wall, Floor, Roof 20. With Aid Of Persons Under 15; By Motor Vehicle 21. Cruelty
Aggravating circumstances which do not have the effect of increasing the penalty: 1. Aggravating circumstances which in themselves constitute a crime especially punishable by law. 2. Aggravating circumstances which are included by the law in defining a crime and prescribing the penalty therefore shall not be taken into account for the purpose of increasing the penalty. [Art. 62, par. 1]. 3. The same rule shall apply with respect to any aggravating circumstance inherent in the crime to such a degree that it must of necessity accompany the commission thereof. [Art. 62, par. 2]. Aggravating circumstances which are personal to the offenders. Aggravating circumstances which arise: 1. from moral attributes of the offender; 2. from his private relations with the offended party; or 3. from any personal cause, shall only serve to aggravate the liability of the principals, accomplices, accessories as to whom such circumstances are attendant. [Art. 62, par. 3]. Aggravating circumstances which depend for their application upon the knowledge of offenders. The circumstances which consist (1) in the material execution of the act, or (2) in the means employed to accomplish it, shall serve to aggravate the liability of those persons only who had knowledge of them at the time of the
PAR. 1. THAT ADVANTAGE BE TAKEN BY THE OFFENDER OF HIS PUBLIC POSITION This is applicable only if the offender is a public officer. The public officer must: 63
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1.
Use the influence, prestige or ascendancy which his office gives him 2. As means by which he realizes his purpose.
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Basis: Greater perversity of the offender.
PAR. 2. THAT THE CRIME BE COMMITTED IN CONTEMPT OF OR WITH INSULT TO THE PUBLIC AUTHORITIES
The essence of the matter is presented in the inquiry, “did the accused abuse his office in
Requisites: 1. That the public authority is engaged in the exercise of his functions. 2. That the public authority is not the person against whom the crime is committed. 3. The offender knows him to be a public authority. 4. His presence has not prevented the offender from committing the criminal act.
order to commit the crime?” [U.S. v. Rodriguez] When a public officer commits a common crime independent of his official functions and does acts that are not connected with the duties of his office, he should be punished as a private individual without this aggravating circumstance.
Public Authority / Person in Authority – is a person directly vested with jurisdiction, that is, a public officer who has the power to govern and execute the laws. The councilor, mayor, governor, barangay captain, barangay chairman etc. are persons in authority. [Art.
Even if defendant did not abuse his office, if it is proven that he has failed in his duties as such public officer, this circumstance would warrant the aggravation of his penalty. Thus, the fact that the vice-mayor of a town joined a band of brigands made his liability greater.
152, as amended by P.D. 1232]
[U.S. v. Cagayan].
The circumstance cannot be taken into consideration in offenses where taking advantage of official position is made by law an integral element of the crime such as in malversation [Art. 217] or falsification of public documents under Art. 171.
A school teacher, town municipal health officer, agent of the BIR, chief of police, etc. are now considered persons in authority. Par. 2 is not applicable if committed in the presence of an agent only such as a police officer.
Agent - A subordinate public officer charged with the maintenance of public order and the protection and security of life and property, such as barrio policemen, councilmen, and any person who comes to the aid of persons in authority. [Art. 152, as amended by BP 873].
Taking advantage of public position is also inherent in the following cases: a. Accessories under Art. 19, par. 3 (harboring, concealing or assisting in the escape of the principal of the crime); and b. Title VII of Book Two of the RPC
Knowledge that a public authority is present is essential. Lack of such knowledge indicates lack of intention to insult public authority.
[Crimes committed by public officers]. When in the commission of the crime, advantage was taken by the offender of his public position, the penalty to be imposed shall be in its maximum regardless of mitigating circumstances. [RA 7659]
If crime is committed against the public authority while in the performance of his duty,
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the offender commits direct assault without this aggravating circumstance.
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Designation or title used to fix the relative position of the offended party in reference to others.
Basis: Greater perversity of the offender as shown by his lack of respect for the public authorities.
There must be a difference in the social condition of the offender and the offended party.
People v. Rodil (1981): There is the aggravating b. Age of the offended party May refer to old age or tender age of the victim.
circumstance that the crime was committed in contempt of or with insult to public authorities when the chief of police was present when the incident occurred. The chief of police should be considered a public authority because he is vested with authority to maintain peace and order over the entire municipality.
c. Sex of the offended party This refers to the female sex, not to the male sex. The aggravating circumstance is NOT to be considered in the following cases: 1. When the offender acted with passion and obfuscation. [People v. Ibanez] 2. When there exists a relationship between the offended party and the offender.
PAR. 3. THAT THE ACT BE COMMITTED WITH INSULT OR IN DISREGARD OF THE RESPECT DUE THE OFFENDED PARTY ON ACCOUNT OF HIS RANK, AGE, OR SEX, OR THAT IT BE COMMITTED IN THE DWELLING OF THE OFFENDED PARTY, IF THE LATTER HAS NOT GIVEN PROVOCATION.
(People v. Valencia) 3. When the condition of being a woman is indispensable in the commission of the crime. Thus, in rape, abduction, or seduction, sex is not aggravating. [People v.
Four circumstances are enumerated in this paragraph, which can be considered singly or together.
Lopez] d. Dwelling (Morada) Building or structure, exclusively used for rest and comfort. Thus, in the case of People v. Magnaye, a “combination of a house and a store”, or a market stall where the victim slept is not a dwelling.
If all the 4 circumstances are present, they have the weight of one aggravating circumstance only. There must be evidence that in the commission of the crime, the accused deliberately intended to offend or insult the sex or age of the offended party. [People v. Mangsat]
This is considered an AC because in certain cases, there is an abuse of confidence which the offended party reposed in the offender by opening the door to him.
Disregard of rank, age or sex may be taken into account only in crimes against persons or honor. [People v. Pugal; People vs. Ga]
Dwelling need not be owned by the offended party. It is enough that he used the place for his peace of mind, rest, comfort and privacy.
a. Rank of the offended party
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Dwelling should not be understood in the concept of a domicile: A person has more than one dwelling. So, if a man has so many wives and he gave them places of their own, each one is his own dwelling. If he is killed there, dwelling will be aggravating, provided that he also stays there once in a while.
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and not as a private place of abode or residence.
People v. Arizobal (2000): Generally, dwelling is considered inherent in the crimes which can only be committed in the abode of the victim, such as trespass to dwelling and robbery in an inhabited place. However, in robbery with homicide the authors thereof can commit the heinous crime without transgressing the sanctity of the victim's domicile. In the case at bar, the robbers demonstrated an impudent disregard of the inviolability of the victims' abode when they forced their way in, looted their houses, intimidated and coerced their inhabitants into submission, disabled Laurencio and Jimmy by tying their hands before dragging them out of the house to be killed.
If a crime of adultery was committed, dwelling is considered aggravating on the part of the paramour. However, if the paramour was also residing in the same dwelling, it will not be aggravating. The offended party must not give provocation.
[People v. Ambis]. Provocation in the aggravating circumstance of dwelling must be: a. given by the offended party b. sufficient, and c. immediate to the commission of the crime. [People v. Rios, 2000] It is not necessary that the accused should have actually entered the dwelling of the victim to commit the offense: it is enough that the victim was attacked inside his own house, although the assailant may have devised means to perpetrate the assault. [People v.
Dwelling is not aggravating in the following cases: 1. When both offender and offended party are occupants of the same house [U.S. v. Rodriguez], and this is true even if offender is a servant of the house. [People v. Caliso] 2. When the robbery is committed by the use of force upon things, dwelling is not aggravating because it is inherent. [U.S. v. Cas]. But dwelling is aggravating in robbery with violence or intimidation of persons because this class or robbery can be committed without the necessity of trespassing the sanctity of the offended party’s house. [People v. Cabato] 3. In the crime of trespass to dwelling, it is inherent or included by law in defining the crime. 4. When the owner of the dwelling gave sufficient and immediate provocation. [Art.
Ompaid, 1969] Dwelling includes dependencies, the foot of the staircase and the enclosure under the house. [U.S. v. Tapan] Basis: Greater perversity of the offender as shown by the personal circumstances of the offended party and the place of the commission of the crime.
People v. Taño (2000): Dwelling cannot be
14 par. 3]
appreciated as an aggravating circumstance in this case because the rape was committed in the ground floor of a two-story structure, the lower floor being used as a video rental store
PAR. 4. THAT THE ACT BE COMMITTED WITH ABUSE OF CONFIDENCE OR OBVIOUS UNGRATEFULNESS 66
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means of facilitating the commission of the crime, the culprit taking advantage of the offended party's belief that the former would not abuse said confidence.
Par. 4 provides two aggravating circumstances. If present in the same case, they must be independently appreciated.
PAR. 5. THAT THE CRIME BE COMMITTED IN THE PALACE OF THE CHIEF EXECUTIVE OR IN HIS PRESENCE, OR WHERE PUBLIC AUTHORITIES ARE ENGAGED IN THE DISCHARGE OF THEIR DUTIES, OR IN A PLACE DEDICATED TO RELIGIOUS WORSHIP
a. Abuse of confidence (Abuso de confianza) 1. That the offended party had trusted the offender. 2. That the offender abused such trust by committing a crime against the offended party. 3. That the abuse of confidence facilitated the commission of the crime.
If it is the Malacañang Palace or a church it is aggravating regardless of whether State or official or religious functions are being held. The President need not be in the palace. His presence alone in any place where the crime is committed is enough to constitute the AC. It also applies even if he is not engaged in the discharge of his duties in the place where the crime was committed. Cemeteries are not places dedicated for religious worship.
The confidence between the offender and the offended party must be immediate and personal. It is inherent in malversation (Art. 217), qualified theft (Art. 310), estafa by conversion or misappropriation (Art. 315) and qualified seduction. (Art. 337). b. Obvious ungratefulness 1. That the offended party had trusted the offender; 2. That the offender abused such trust by committing a crime against the offended party; 3. That the act be committed with obvious ungratefulness.
Note: Offender must have the intention to commit a crime when he entered the place.
[People v. Jaurigue]
The ungratefulness must be obvious: (1) manifest and (2) clear.
Par. 5 Where public authorities are engaged in the discharge of their duties.
Basis: Greater perversity of the offender as shown by the means and ways employed.
People v. Arrojado (2001): For the aggravating
Par. 2 Contempt or insult to public authorities
Public authorities are engaged in the performance of their duties. Public duty is Public duty is performed in their performed outside of office their office The offended party The public authority may or may not be the should not be the
circumstance of abuse of confidence to exist, it is essential to show that the confidence between the parties must be immediate and personal such as would give the accused some advantage or make it easier for him to commit the criminal act. The confidence must be a 67
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Nighttime by and of itself is not an aggravating circumstance.
offended party
As regards the place where the public authorities are engaged in the discharge of their duties, there must be some performance of public functions. Basis: Greater perversity of the offender as shown by the place of the commission of the crime, which must be respected.
PAR. 6. THAT THE COMMITTED IN THE
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When the place is illuminated by light, nighttime is not aggravating. Nighttime may be absorbed by treachery depending on circumstances. Nighttime need not be specifically sought for when: 1. the offender purposely took advantage of nighttime; or 2. it facilitated the commission of the offense.
BE
a. night time, or b. in an uninhabited place, or c. by a band, whenever such circumstances may facilitate the commission of the offense. These 3 circumstances may be considered separately: 1. when their elements are distinctly perceived and 2. can subsist independently, 3. revealing a greater degree of perversity.
b. Uninhabited place It is determined not by the distance of the nearest house to the scene of the crime but whether or not in the place of the commission of the offense, there was a reasonable
Requisites: 1. When it facilitated the commission of the crime; or 2. When especially sought for by the offender to insure the commission of the crime or for the purpose of impunity; or 3. When the offender took advantage thereof for the purpose of impunity.
Solitude must be sought to better attain the criminal purpose. [People v. Aguinaldo]
possibility of the victim receiving some help.
The offenders must choose the place as an aid either (1) to an easy and uninterrupted accomplishment of their criminal designs, or (2) to insure concealment of the offense, that he might thereby be better secured against detection and punishment. [U.S. v. Vitug].
a. Nighttime The commission of the crime must begin and be accomplished in the nighttime (after sunset and before sunrise). 1. It is specially sought by the offender 2. the offender purposely took advantage of nighttime; or 3. it facilitated the commission of the offense.
c. Band Band - Whenever more than three armed malefactors shall have acted together in the commission of an offense, it shall be deemed to have been committed by a band. There should 1. Be at least be four persons 2. At least 4 of them should be armed
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direct
This aggravating circumstance is absorbed in the circumstance of abuse of superior strength. This is inherent in brigandage.
CRIMINAL LAW “OR OTHER CALAMITY OR MISFORTUNE” – refers to other conditions of distress similar to “conflagration, shipwreck, earthquake or epidemic.”
Basis: To the time of the commission of the crime.
The armed men must have acted together in the commission of the crime.
PAR. 8. THAT THE CRIME BE COMMITTED WITH THE AID OF ARMED MEN, OR PERSONS WHO INSURE OR AFFORD IMPUNITY
Basis: On the time and place of the commission of the crime and means and ways employed.
Requisites: 1. That the armed men or persons took part in the commission of the crime, directly or indirectly. 2. That the accused availed himself of their aid or relied upon them when the crime was committed.
People v. Librando (2000): In this case the trial court considered nighttime and uninhabited place as just one aggravating circumstance. Held: The court did not err in considering nighttime and uninhabited place as just one aggravating circumstance. The court cited the case of People vs. Santos where it has been held that if the aggravating circumstances of nighttime, uninhabited place or band concur in the commission of the crime, all will constitute one aggravating circumstance only as a general rule although they can be considered separately if their elements are distinctly perceived and can subsist independently, revealing a greater degree of perversity.
Not applicable When both the attacking party and the party attacked were equally armed. When the accused as well as those who cooperated with him in the commission of the crime acted under the same plan and for the same purpose. Casual presence, or when the offender did not avail himself of their aid nor knowingly count upon their assistance in the commission of the crime.
PAR. 7. THAT THE CRIME BE COMMITTED ON THE OCCASION OF A CONFLAGRATION, SHIPWRECK, EARTHQUAKE, EPIDEMIC OR OTHER CALAMITY OR MISFORTUNE
Par. 6 By a band
The rationale for this AC is the debased form of criminality of one who, in the midst of a great calamity, instead of lending aid to the afflicted, adds to their suffering by taking advantage of their misfortune and despoiling them. The offender must take advantage of the calamity or misfortune.
Par. 8 With aid of armed men
At least two armed Requires more than 3 men armed malefactors Requires that more This circumstance is than three armed present even if one of 69
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convicted, if he is subsequently convicted of a crime embraced in the same title of the Revised Penal Code, it is taken into account as aggravating in imposing the penalty.
the offenders merely relied on their aid, for actual aid is not necessary Armed men are mere accomplices
People v. Licop: Aid of armed men includes “armed women”. Note: “Aid of armed men” is absorbed by “employment of a band”. Basis: Means and ways of committing the crime.
PAR. 9. THAT THE ACCUSED IS A RECIDIVIST (REINCIDENCIA)
Basis: Greater perversity of the offender, as shown by his inclination to crimes.
People vs. Molina (2000): To prove recidivism,
In recidivism, the crimes committed should be felonies. There is no recidivism if the crime committed is a violation of a special law.
it is necessary to allege the same in the information and to attach thereto certified copies of the sentences rendered against the accused. Nonetheless, the trial court may still give such AC credence if the accused does not object to the presentation.
What is controlling is the time of the trial, not the time of the commission of the offense (i.e. there was already a conviction by final judgment at the time of the trial for the second crime).
At the time of the trial means from the arraignment until after sentence is announced by the judge in open court.
Recidivism does not prescribe. No matter how long ago the offender was
Pardon does not erase recidivism, even if it is absolute because it only excuses the service of the penalty, not the conviction. However, if a person was granted an amnesty, and thereafter he is convicted of another crime of the same class as the former crimes, his former conviction would not be aggravating. According to Art. 89, amnesty extinguishes not only the penalty but also its effects.
If the offender has already served his sentence and he was extended an absolute pardon, o the pardon shall erase the conviction including recidivism because there is no more penalty
Requisites: 1. That the offender is on trial for an offense; 2. That he was previously convicted by final judgment of another crime; 3. That both the first and the second offenses are embraced in the same title of the Code; 4. That the offender is convicted of the new offense.
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PAR. 10. THAT THE OFFENDER HAS BEEN PREVIOUSLY PUNISHED BY AN OFFENSE TO WHICH THE LAW ATTACHES AN EQUAL OR GREATER PENALTY OR FOR TWO OR MORE CRIMES TO WHICH IT ATTACHES A LIGHTER PENALTY 70
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Recidivism Requisites: 1. That the accused is on trial for an offense; 2. That he previously served sentence for another offense to which the law attaches: a. an equal or b. greater penalty, or c. for 2 or more crimes to which it attaches lighter penalty than that for the new offense; and 3. That he is convicted of the new offense. In Reiteracion or Habituality, it is essential that the offender be previously punished; that is, he has served sentence.
There is no time limit between the first conviction and the subsequent conviction. Recidivism is imprescriptible.
Par. 10 speaks of penalty attached to the offense, not the penalty actually imposed Basis: Greater perversity of the offender as shown by his inclination to crimes.
Par. 9 Recidivism It is enough that a final judgment has been rendered in the first offense. Requires that the offenses be included in the same title of the Code Always to be taken into consideration in fixing the penalty to be imposed upon the accused Rationale is the proven tendency to commit a similar offense
Art. 14, Par. 9
Par. 10 Reiteracion It is necessary that the offender shall have served out his sentence for the first offense. The previous and subsequent offenses must not be embraced in the same title of the Code Not always aggravating circumstance
Habitual Delinquency
Two convictions are At least three enough convictions are required The crimes are not The crimes are limited specified; it is enough and specified to: that they may be a. serious physical embraced under the injuries, same title of the b. less serious Revised Penal Code physical injuries, c. robbery, d. theft, e. estafa or swindling and f. falsification There is a time limit of not more than 10 years between every conviction computed from the first conviction or release from punishment thereof to conviction computed from the second conviction or release therefrom to the third conviction and so on
Since reiteracion provides that the accused has duly served the sentence for previous conviction/s, or is legally considered to have done so, quasi-recidivism cannot at the same time constitute reiteracion, hence the latter cannot apply to a quasi-recidivist. If the same set of facts constitutes recidivism and reiteracion, the liability of the accused should be aggravated by recidivism which can be easily proven.
an
PAR. 11. THAT THE CRIME BE COMMITTED IN CONSIDERATION OF A PRICE, REWARD, OR PROMISE
Rationale is the proven resistance to rehabilitation
When this Aggravating Circumstance is present, there must be 2 or more principals:
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a. the one who gives or offers the price or promise; and b. the one who accepts it.
DERAILMENT OF A LOCOMOTIVE, OR BY THE USE OF ANY OTHER ARTIFICE INVOLVING GREAT WASTE AND RUIN
Both of whom are principals to the former, because he directly induces the latter to commit the crime, and the latter because he commits it.
Unless used by the offender as a means to accomplish a criminal purpose, any of the circumstances in paragraph 12 cannot be considered to increase the penalty or to change the nature of the offense.
When this AC is present, it affects not only the person who received the price or reward, but also the person who gave it.
When another AC already qualifies the crime, any of these AC’s shall be considered as generic aggravating circumstance only.
The evidence must show that one of the accused used money or valuable consideration for the purpose of inducing another to perform the deed. [U.S. v. Gamao]
Fire is not aggravating in the crime of arson. Whenever a killing is done with the use of fire, as when you kill someone, you burn down his house while the latter is inside, this is murder.
If without previous promise it was given voluntarily after a crime was committed as an expression of his appreciation for the sympathy and aid shown by the other accused, it should not be taken into consideration for the purpose of increasing the penalty.
There is no such crime as murder with arson or arson with homicide. The crime is only murder. If the intent is to destroy property - the crime is arson even if someone dies as a consequence.
The price, reward or promise: Need not consist of or refer to material things; or That the same were actually delivered, o it being sufficient that the offer made by the principal by inducement was accepted by the principal by direct participation before the commission of the offense.
If the intent is to kill - there is murder even if the house is burned in the process. Basis: Means and ways employed.
PAR. 13. THAT THE ACT BE COMMITTED WITH EVIDENT PREMEDITATION Requisites: 1. The time when the offender determined to commit the crime; 2. An act manifestly indicating that the culprit has clung to his determination; and 3. A sufficient lapse of time between the determination and execution, to allow him to reflect upon the consequences of his act and to allow his conscience to overcome the resolution of his will.
Basis: Greater perversity of the offender, as shown by the motivating power itself.
PAR. 12. THAT THE CRIME BE COMMITTED BY MEANS OF INUNDATION, FIRE, POISON, EXPLOSION, STRANDING OF A VESSEL OR INTENTIONAL DAMAGE THERETO, 72
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Evident premeditation implies a deliberate planning of the act before executing it. The essence of premeditation An opportunity to coolly and serenely think and deliberate o on the meaning and o consequences of what he planned to do, An interval long enough for his conscience and better judgment to overcome his evil desire and scheme.
People v. Biso (2003): Dario, a black belt in karate, entered an eatery, seated himself beside Teresita and made sexual advances to her in the presence of her brother, Eduardo. Eduardo contacted his cousin, Biso, an exconvict and a known toughie in the area, and related to him what Dario had done to Teresita. Eduardo and Pio, and 2 others decided to confront Dario. They positioned themselves in the alley near the house of Dario. When Dario arrived on board a taxicab, the four assaulted Dario. Eduardo held, with his right hand, the wrist of Dario and covered the mouth of Dario with his left hand. The 2 others held Dario's right hand and hair. Pio then stabbed Dario near the breast with a fan knife. Eduardo stabbed Dario and fled with his three companions from the scene.
The premeditation must be based upon external facts, and must be evident, not merely suspected indicating deliberate planning. The date and time when the offender determined to commit the crime is essential, because the lapse of time for the purpose of the third requisite is computed from that date and time. After the offenders had determined to commit the crime, there must be a manifest indication that they clung to their determination. Where conspiracy is directly established, with proof of the attendant deliberation and selection of the method, time and means of executing the crime, the existence of evident premeditation can be taken for granted. [U.S. v. Cornejo] Evident premeditation is inherent in robbery, adultery, estafa, and falsification. However, it may be aggravating in robbery with homicide if the premeditation included the killing of the victim. [People v.
Held: There was no evident premeditation. The prosecution failed to prove that the four intended to kill Dario and if they did intend to kill him, the prosecution failed to prove how the malefactors intended to consummate the crime. Except for the fact that the appellant and his three companions waited in an alley for Dario to return to his house, the prosecution failed to prove any overt acts on the part of the appellant and his cohorts showing that that they had clung to any plan to kill the victim.
Valeriano]
is proper to consider against the offender the aggravating circumstance of evident premeditation, because whoever is killed by him is contemplated in the premeditation. [US v. Manalinde, 1909] Mere threats without the second element does not show evident premeditation.
Basis: Reference to the ways of committing the crime because evident premeditation implies a deliberate planning of the act before executing it.
[People v. Durante]
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In order that premeditation may exist, it is not necessary that the accused premeditated the killing of a particular individual. If the offender premeditated on the killing of any person (general attack), it 73
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PAR. 14. THAT CRAFT, FRAUD OR DISGUISE BE EMPLOYED Craft
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disguise is not considered aggravating. Involves intellectual trickery and cunning on the part of the accused. It is employed as a scheme in the execution of the crime.
Basis: Means employed in the commission of the crime.
People v. San Pedro: Where the accused
Fraud Insidious words or machinations used o to induce the victim o to act in a manner which would enable the offender to carry out his design.
pretended to hire the driver in order to get his vehicle, it was held that there was craft directed to the theft of the vehicle, separate from the means subsequently used to treacherously kill the defenseless driver.
Craft and Fraud may be absorbed in treachery if they have been deliberately adopted as the means, methods or forms for the treacherous strategy, or they may co-exist independently where they are adopted for a different purpose in the commission of the crime.
intellectual trickery and cunning on the part of the offender. When there is a direct inducement by insidious words or machinations, fraud is present. By saying that he would accompany the victim to see the cows which the latter intended to buy, appellant was able to lure the victim to go with him.
Fraud
People v. Labuguen (2000): Craft involves
PAR. 15. THAT ADVANTAGE BE TAKEN OF SUPERIOR STRENGTH, OR MEANS BE EMPLOYED TO WEAKEN THE DEFENSE
Craft
When there is a The act of the accused DIRECT was done in order INDUCEMENT by NOT TO AROUSE insidious words or SUSPICION machinations
To TAKE ADVANTAGE of superior strength means to use purposely excessive force out of proportion to the means of defense available to the person attacked.
Disguise Resorting to any device to conceal identity. The test of disguise is o whether the device or contrivance resorted to by the offender o was intended to or did make identification more difficult, such as the use of a mask, false hair or beard.
Superiority may arise from aggressor’s sex, build, weapon or number as compared to that of the victim (e.g. accused attacked an unarmed girl with a knife; 3 men stabbed to death the female victim). 74
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People
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v.
Lobrigas
(2002):
The crime committed was murder qualified by the aggravating circumstance of abuse of superior strength. To appreciate abuse of superior strength, there must be a deliberate intent on the part of the malefactors to take advantage of their greater number. They must have notoriously selected and made use of superior strength in the commission of the crime. To take advantage of superior strength is to use excessive force that is out of proportion to the means for self-defense available to the person attacked; thus, the prosecution must clearly show the offenders' deliberate intent to do so.
No advantage of superior strength when one who attacks is overcome with passion and obfuscation or when quarrel arose unexpectedly and the fatal blow was struck while victim and accused were struggling.
Versus by a band: In the circumstance of abuse of superior strength, what is taken into account is o not the number of aggressors nor the fact that they are armed o but their relative physical might
People v. Sansaet (2002): Mere superiority in number, even assuming it to be a fact, would not necessarily indicate the attendance of abuse of superior strength. The prosecution should still prove that the assailants purposely used excessive force out of proportion to the means of defense available to the persons attacked.
vis-à-vis the offended party
Means Employed to Weaken Defense This circumstance is applicable only o to crimes against persons and o sometimes against person and property, such as robbery with physical injuries or homicide.
Finally, to appreciate the qualifying circumstance of abuse of superior strength, what should be considered is whether the aggressors took advantage of their combined strength in order to consummate the offense. To take advantage of superior strength means to purposely use excessive force out of proportion to the means available to the person attacked to defend himself.
Note: The means used must not totally eliminate possible defense of the victim,
otherwise it will fall under treachery Basis: Means employed in the commission of the crime.
People v. Carpio: There must be evidence of
PAR. 16. THAT THE ACT BE COMMITTED WITH TREACHERY (ALEVOSIA)
notorious inequality of forces between the offender and the offended party in their age, size and strength, and that the offender took advantage of such superior strength in the commission of the crime. The mere fact that there were two persons who attacked the victim does not per se constitute abuse of superior strength.
Treachery – when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.
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Requisites: 1. The employment of means of execution that gave the person attacked no opportunity to defend himself or retaliate; and 2. That the offender consciously adopted the particular means, method or form of attack employed by him.
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4. Treachery cannot be presumed. The suddenness of the attack does not, of itself, suffice to support a finding of alevosia, even if the purpose was to kill, so long as the decision was made all of a sudden and the victim’s helpless position was accidental. [People v. Lubreo]. It must be proved by clear and convincing evidence. [People v. Santos].
The essence of treachery is that by virtue of the means, method or form employed by the offender, the offended party was not able to put up any defense. If the offended party was able to put up a defense, even only a token one, there is no treachery. Instead, some other aggravating circumstance may be present but it is no longer treachery.
Attacks show intention to eliminate risk: Victim asleep Victim half-awake or just awakened Victim grappling or being held. Attacked from behind Additional rules: When the aggression is CONTINUOUS, treachery must be present in the BEGINNING of the assault. When the assault WAS NOT CONTINUOUS, in that there was an interruption, it is sufficient that treachery was present AT THE MOMENT THE FATAL BLOW WAS GIVEN.
Rules Regarding Treachery 1. Applicable only to crimes against persons. 2. Means, methods or forms need not insure accomplishment or consummation of the crime. The treacherous character of the means employed in the aggression does not depend upon the result thereof but upon the means itself. Thus, frustrated murder could be aggravated by treachery. 3. The mode of attack must be consciously adopted. The accused must make some preparation to kill the deceased in such manner as to insure the execution of the crime or to make it impossible or hard for the person attacked to defend himself or retaliate. [People v. Tumaob] It must be a result of meditation, calculation or reflection. [U.S. v.
Basis: Means and ways employed in the commission of the crime.
People v. Malejana: Treachery may still be appreciated even when the victim was forewarned of danger to his person. What is decisive is that the execution of the attack made it impossible for the victim to defend himself or to retaliate. Thus, even a frontal attack could be treacherous when unexpected and on an unarmed victim who would be in no position to repel the attack or avoid it. Treachery cannot co-exist with passion and obfuscation.
Balagtas]
People v. Rendaje (2000): To constitute 76
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treachery, two conditions must concur: (1) the employment of means, methods or manner of execution that would ensure the offender's safety from any defense or retaliatory act on the part of the offended party; and (2) the offender's deliberate or conscious choice of the means, method or manner of execution.
by winding cogon grass around his genitals augmented the wrong done by increasing its pain and adding ignominy thereto.
People v. Cachola (2004): For ignominy to be appreciated, it is required that the offense be committed in a manner that tends to make its effect more humiliating, thus adding to the victim's moral suffering. Where the victim was already dead when his body or a part thereof was dismembered, ignominy cannot be taken against the accused. In this case, the information states that Victorino's sexual organ was severed after he was shot and there is no allegation that it was done to add ignominy to the natural effects of the act. We cannot, therefore, consider ignominy as an aggravating circumstance.
Treachery absorbs: 1. Abuse of superior strength [U.S. v. Estopia] 2. Use of means to weaken the defense 3. 4. 5. 6.
[People v. Siatong] Aid of armed men [People v. Ferrera] Nighttime [People v. Kintuan] Craft [People v. Malig] By a band [People v. Ampo-an]
PAR. 17. THAT MEANS BE EMPLOYED OR CIRCUMSTANCES BROUGHT ABOUT WHICH ADD IGNOMINY TO THE NATURAL EFFECTS OF THE ACT
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People v. Bumidang (2000): The aggravating circumstance of ignominy shall be taken into account if means are employed or circumstances brought about which add ignominy to the natural effects of the offense; or if the crime was committed in a manner that tends to make its effects more humiliating to the victim, that is, add to her moral suffering. It was established that Baliwang used the flashlight and examined the genital of Gloria before he ravished her. He committed his bestial deed in the presence of Gloria's old father. These facts clearly show that Baliwang deliberately wanted to further humiliate Gloria, thereby aggravating and compounding her moral sufferings. Ignominy was appreciated in a case where a woman was raped in the presence of her betrothed, or of her husband, or was made to exhibit to the rapists her complete nakedness before they raped her.
It is a circumstance pertaining to the moral order, which adds disgrace to the material injury caused by the crime. The means employed or the circumstances brought about must tend to make the effects of the crime MORE HUMILIATING or TO PUT THE OFFENDED PARTY TO SHAME. Applicable to crimes against chastity, rape, less serious physical injuries, light or grave coercion and murder. Raping a woman from behind is ignominous because that is not the normal form of intercourse, it is something which offends the morals of the offended woman. This is how animals do it.
PAR. 18. THAT THE CRIME BE COMMITTED AFTER AN UNLAWFUL ENTRY.
Basis: Means employed.
People v. Torrefiel (1947): The novelty of the manner in which the accused raped the victim
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PAR. 20. THAT THE CRIME BE COMMITTED WITH THE AID OF PERSONS UNDER FIFTEEN YEARS OF AGE OR BY MEANS OF MOTOR VEHICLES, MOTORIZED WATERCRAFT, AIRSHIPS, OR OTHER SIMILAR MEANS
There is unlawful entry when an entrance is effected by a way not intended for the purpose. Unlawful entry must be a means to effect entrance and not for escape. There is no unlawful entry when the door is broken and thereafter the accused made an entry thru the broken door. The breaking of the door is covered by paragraph 19. Unlawful entry is inherent in the crime of trespass to dwelling and robbery with force upon things but aggravating in the crime of robbery with violence against or intimidation of persons.
a. With the aid of persons under 15 years of age To repress, so far as possible, the frequent practice resorted to by professional criminals of availing themselves of minors taking advantage of their lack of criminal responsibility (remember that minors are given leniency when they commit a crime)
Basis: Means and ways employed to commit the crime.
b. By means of a motor vehicle To counteract the great facilities found by modern criminals in said means to commit crime and flee and abscond once the same is committed.
PAR. 19. THAT AS A MEANS TO THE COMMISSION OF THE CRIME, A WALL, ROOF, FLOOR, DOOR OR WINDOW BE BROKEN
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This circumstance is aggravating only when used in the commission of the offense. If motor vehicles are used only in the escape of the offender, it is not aggravating. It must have been used to facilitate the commission of the crime to be aggravating.
To be considered as an AC, breaking the door must be utilized as a means to the commission of the crime. It is only aggravating in cases where the offender resorted to any of said means TO ENTER the house. If the wall, etc. is broken in order to get out of the place, it is not aggravating. Because of the phrase “as a means to the commission of a crime”, it is not necessary that the offender should have entered the building. What aggravates the liability of the offender is the breaking of a part of the building as a means to the commission of the crime.
“Or other similar means” – the expression should be understood as referring to MOTORIZED vehicles or other efficient means of transportation similar to automobile or airplane. Basis: Means and ways employed to commit the crime.
Basis: Means and ways employed to commit the crime.
PAR. 21. THAT THE WRONG DONE IN THE COMMISSION OF THE CRIME BE DELIBERATELY AUGMENTED BY 78
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CAUSING OTHER WRONG NOT NECESSARY FOR ITS COMMISSION
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cruelty to exist there must be proof showing that the accused delighted in making their victim suffer slowly and gradually, causing him unnecessary physical and moral pain in the consummation of the criminal act. No proof was presented that would show that accusedappellants deliberately and wantonly augmented the suffering of their victim.
Requisites: 1. That the injury caused be deliberately increased by causing other wrong; 2. That the other wrong be unnecessary for the execution of the purpose of the offender.
People v. Guerrero (2002): Appellant first severed the victim's head before his penis was cut-off. This being the sequence of events, cruelty has to be ruled out for it connotes an act of deliberately and sadistically augmenting the wrong by causing another wrong not necessary for its commission, or inhumanely increasing the victim's suffering. As testified to by Dr. Sanglay, and reflected in her medical certificate, Ernesto in fact died as a result of his head being severed. No cruelty is to be appreciated where the act constituting the alleged cruelty in the killing was perpetrated when the victim was already dead.
For it to exist, it must be shown that the accused enjoyed and delighted in making his victim suffer. If the victim was already dead when the acts of mutilation were being performed, this would also qualify the killing to murder due to outraging of his corpse. Basis: Ways employed to commit the crime.
Ignominy Shocks the moral conscience of man Refers to the moral effect of a crime and it pertains to the moral order, whether or not the victim is dead or alive
Cruelty Physical
D.2. QUALIFYING Refers to the physical suffering of the victim so he has to be alive
a. Decree Codifying the Laws on Illegal/ Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition, of Firearms, Ammunition or Explosives [P.D. 1866, as amended by R.A. No. 8294] as an aggravating circumstance
People v. Catian (2002): Catian repeatedly struck Willy with a "chako" on the head, causing Willy to fall on his knees. Calunod seconded by striking the victim with a piece of wood on the face. When Willy finally collapsed, Sumalpong picked him up, carried him over his shoulder, and carried Willy to a place where they burned Willy. The latter’s skeletal remains were discovered by a child who was pasturing his cow near a peanut plantation.
Acts punished 1. Unlawful manufacture, sale, acquisition, disposition or possession of firearms or ammunition or instruments used or intended to be used in the manufacture of firearms or ammunition PROVIDED, That no other crime is committed. a. If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance.
Held: The circumstance of cruelty may not be considered as there is no showing that the victim was burned while he was still alive. For 79
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People vs. Ladjaalam (2000):
b. If the violation of this section is in furtherance of or incident to, or in connection with the crime of rebellion
If an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms.
or insurrection, sedition, or attempted coup d'etat, such violation shall be absorbed as an element of the crime of rebellion, or insurrection, sedition, or attempted coup d'etat.
Hence, if the “other crime” is murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a separate offense.
2. Unlawful manufacture, sale, acquisition, disposition or possession of explosives. a. When a person commits any of
Since direct assault with multiple attempted homicide was committed in this case, appellant can no longer be held liable for illegal possession of firearms.
the crimes defined in the Revised Penal Code or special laws
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with the use of the aforementioned explosives,
b. The Comprehensive Dangerous Drugs Act of 2002 [R.A. No. 9165]
detonation agents or incendiary devices, which results in the death of any person or persons,
As a qualifying aggravating circumstance
the use of such explosives, detonation agents or incendiary devices shall be considered as an aggravating circumstance. 3. Tampering of firearm's serial number. 4. Repacking or altering the composition of lawfully manufactured explosives.
Section 25. Qualifying Aggravating Circumstances in the Commission of a Crime by an Offender Under the Influence of Dangerous Drugs. – Notwithstanding the provisions of any law to the contrary, a positive finding for the use of dangerous drugs shall be a qualifying aggravating circumstance in the commission of a crime by an offender, and the application of the penalty provided for in the Revised Penal Code shall be applicable.
People vs. De Gracia (1994): Ownership is not an essential element of illegal possession of firearms and ammunition.
i. Immunity from prosecution and punishment, coverage
What the law requires is merely possession which includes not only actual physical
Sec. 33. Immunity from Prosecution and Punishment. – Notwithstanding the provisions
possession but also constructive possession.
of Section 17, Rule 119 of the Revised Rules of Criminal Procedure and the provisions of Republic Act No. 6981 or the Witness Protection, Security and Benefit Act of 1991, any person who has violated Sections 7, 11, 12, 14, 15, and 19, Article II of this Act, who voluntarily gives information about any violation of Sections 4, 5, 6, 8, 10, 13, and 16,
Palaganas vs. Court of Appeals (2006): With the passage of Republic Act. No. 8294 on 6 June 1997, the use of an unlicensed firearm in murder or homicide is now considered as a SPECIAL aggravating circumstance and not a generic aggravating circumstance.
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Article II of this Act as well as any violation of the offenses mentioned if committed by a drug syndicate, or any information leading to the whereabouts, identities and arrest of all or any of the members thereof; and who willingly testifies against such persons as described above, shall be exempted from prosecution or punishment for the offense with reference to which his/her information or testimony were given, and may plead or prove the giving of such information and testimony in bar of such prosecution: Provided, That the following conditions concur:
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of the said informant or witness.
Sec. 34. Termination of the Grant of Immunity. – The immunity granted to the informant or witness, as prescribed in Section 33 of this Act, shall not attach should it turn out subsequently that the information and/or testimony is false, malicious or made only for the purpose of harassing, molesting or in any way prejudicing the persons described in the preceding Section against whom such information or testimony is directed against. In such case, the informant or witness shall be subject to prosecution and the enjoyment of all rights and benefits previously accorded him under this Act or any other law, decree or order shall be deemed terminated.
(1) The information and testimony are necessary for the conviction of the persons described above; (2) Such information and testimony are not yet in the possession of the State;
(4) the informant or witness has not been previously convicted of a crime involving moral turpitude, except when there is no other direct evidence available for the State other than the information and testimony of said informant or witness; and
In case an informant or witness under this Act fails or refuses to testify without just cause, and when lawfully obliged to do so, or should he/she violate any condition accompanying such immunity as provided above, his/her immunity shall be removed and he/she shall likewise be subject to contempt and/or criminal prosecution, as the case may be, and the enjoyment of all rights and benefits previously accorded him under this Act or in any other law, decree or order shall be deemed terminated.
(5) The informant or witness shall strictly and faithfully comply without delay, any condition or undertaking, reduced into writing, lawfully imposed by the State as further consideration for the grant of immunity from prosecution and punishment.
In case the informant or witness referred to under this Act falls under the applicability of this Section hereof, such individual cannot avail of the provisions under Article VIII of this Act. ii. Minor offenders
Provided, further, That this immunity may be enjoyed by such informant or witness who does not appear to be most guilty for the offense with reference to which his/her information or testimony were given: Provided, finally, That there is no direct evidence available for the State except for the information and testimony
Sec. 66. Suspension of Sentence of a First-Time Minor Offender. – An accused who is over
(3) Such information and testimony can be corroborated on its material points;
fifteen (15) years of age at the time of the commission of the offense mentioned in Section 11 of this Act, but not more than eighteen (18) years of age at the time when judgment should have been promulgated after 81
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having been found guilty of said offense, may be given the benefits of a suspended sentence, subject to the following conditions:
favorable recommendation of the Board for the final discharge of the accused, shall discharge the accused and dismiss all proceedings.
(a) He/she has not been previously convicted of violating any provision of this Act, or of the Dangerous Drugs Act of 1972, as amended; or of the Revised Penal Code; or of any special penal laws; (b) He/she has not been previously committed to a Center or to the care of a DOH-accredited physician; and (c) The Board favorably recommends that his/her sentence be suspended.
Upon the dismissal of the proceedings against the accused, the court shall enter an order to expunge all official records, other than the confidential record to be retained by the DOJ relating to the case. Such an order, which shall be kept confidential, shall restore the accused to his/her status prior to the case. He/she shall not be held thereafter to be guilty of perjury or of concealment or misrepresentation by reason of his/her failure to acknowledge the case or recite any fact related thereto in response to any inquiry made of him for any purpose.
While under suspended sentence, he/she shall be under the supervision and rehabilitative surveillance of the Board, under such conditions that the court may impose for a period ranging from six (6) months to eighteen (18) months.
Sec. 68. Privilege of Suspended Sentence to be Availed of Only Once by a First-Time Minor Offender. – The privilege of suspended sentence shall be availed of only once by an accused drug dependent who is a first-time offender over fifteen (15) years of age at the time of the commission of the violation of Section 15 of this Act but not more than eighteen (18) years of age at the time when judgment should have been promulgated.
Upon recommendation of the Board, the court may commit the accused under suspended sentence to a Center, or to the care of a DOHaccredited physician for at least six (6) months, with after-care and follow-up program for not more than eighteen (18) months.
Sec. 69. Promulgation of Sentence for FirstTime Minor Offender. – If the accused first-time
In the case of minors under fifteen (15) years of age at the time of the commission of any offense penalized under this Act, Article 192 of Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code, as amended by Presidential Decree No. 1179 shall apply, without prejudice to the application of the provisions of this Section.
minor offender violates any of the conditions of his/her suspended sentence, the applicable rules and regulations of the Board exercising supervision and rehabilitative surveillance over him, including the rules and regulations of the Center should confinement be required, the court shall pronounce judgment of conviction and he/she shall serve sentence as any other convicted person.
Sec. 67. Discharge After Compliance with Conditions of Suspended Sentence of a FirstTime Minor Offender. – If the accused first time
Sec. 70. Probation or Community Service for a First-Time Minor Offender in Lieu of Imprisonment. – Upon promulgation of the
minor offender under suspended sentence complies with the applicable rules and regulations of the Board, including confinement in a Center, the court, upon a
sentence, the court may, in its discretion, place the accused under probation, even if the 82
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sentence provided under this Act is higher than that provided under existing law on probation, or impose community service in lieu of imprisonment. In case of probation, the supervision and rehabilitative surveillance shall be undertaken by the Board through the DOH in coordination with the Board of Pardons and Parole and the Probation Administration. Upon compliance with the conditions of the probation, the Board shall submit a written report to the court recommending termination of probation and a final discharge of the probationer, whereupon the court shall issue such an order.
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whether or not a person accused under this Act is a first-time minor offender. iii. Application/ Non application of RPC provisions [Sec. 98, R.A. No. 9165] provisions [Sec. 98] cf. Art. 10, RPC
Section 98, RA 9165. Limited Applicability of the Revised Penal Code. – Notwithstanding any law, rule or regulation to the contrary, the provisions of the Revised Penal Code (Act No. 3814), as amended, shall not apply to the provisions of this Act, except in the case of minor offenders. Where the offender is a minor, the penalty for acts punishable by life imprisonment to death provided herein shall be reclusion perpetua to death.
The community service shall be complied with under conditions, time and place as may be determined by the court in its discretion and upon the recommendation of the Board and shall apply only to violators of Section 15 of this Act. The completion of the community service shall be under the supervision and rehabilitative surveillance of the Board during the period required by the court. Thereafter, the Board shall render a report on the manner of compliance of said community service. The court in its discretion may require extension of the community service or order a final discharge.
Art. 10, RPC. Offenses not subject to the provisions of this Code. — Offenses which are or in the future may be punishable under special laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws, unless the latter should specially provide the contrary. Other Aggravating Circumstance Organized or Syndicated Crime Group [Art. 62,
RPC] Organized or syndicated crime group: a. A group of two or more persons b. collaborating, confederating or mutually helping one another c. for the purpose of gain in the commission of a crime.
In both cases, the judicial records shall be covered by the provisions of Sections 60 and 64 of this Act. If the sentence promulgated by the court requires imprisonment, the period spent in the Center by the accused during the suspended sentence period shall be deducted from the sentence to be served.
Special aggravating circumstance The maximum penalty shall be imposed if the offense was committed by any person who belongs to an organized or syndicated crime group.
Section 71. Records to be kept by the Department of Justice. – The DOJ shall keep a confidential record of the proceedings on suspension of sentence and shall not be used for any purpose other than to determine
E. ALTERNATIVE CIRCUMSTANCES 83
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THREE TYPES of alternative circumstances under Art. 15: 1. Relationship 2. Intoxication 3. Degree of education/instruction
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when the offender and the offended party are relatives of the same level, as killing a brother, a brother-in-law, a half-brother or adopted brother. ii. When the crime is SERIOUS PHYSICAL INJURIES [Art. 263], even if the offended party is a descendant of the offender, relationship is AGGRAVATING. But the serious physical injuries must not be inflicted by a parent upon his child by excessive chastisement. iii. When the crime is LESS SERIOUS PHYSICAL INJURIES OR SLIGHT PHYSICAL INJURIES if the offended party is a relative of a higher degree than the offender iv. When the crime is HOMICIDE OR MURDER if the victim of the crime is a
Alternative Circumstances – are circumstances which must be taken in consideration as aggravating or mitigating according to the nature and effects of the crime
E.1. RELATIONSHIP i. ii. iii. iv.
Spouse Ascendant Descendant Legitimate, natural, or adopted Brother or Sister v. Relative by Affinity in the same degree of the offender a. Where relationship is exempting i. An accessory who is related to the principal within the relationship prescribed in Art. 20 except if accessory falls within Par. 1 of Art. 19; ii. A legally married person who having surprised his spouse in the act of committing sexual intercourse with another person who shall inflict upon them physical injuries of any other kind (i.e. less serious and slight physical injuries). [Art. 247, RPC] iii. Spouses, ascendants and descendants, or relatives by affinity in the same line who committed the crime of theft, malicious mischief or swindling (estafa) but there is civil liability. [Art.
relative of lower degree. v. In CRIMES AGAINST CHASTITY relationship is always aggravating c. Where relationship is mitigating In Crimes against property, by analogy to the provisions of Art. 332, relationship is mitigating in the crimes of robbery (arts. 294-3-2), usurpation (Art. 312), fraudulent insolvency (Art. 314) and arson (Arts. 321-322, 325326) When the crime is less serious or slight physical injuries if the offended party is a relative of a lower degree than the offender.
332, RPC]
People v. Atop (1998): 11-year-old Regina lives
b. Where relationship is aggravating i. In CRIMES AGAINST PERSONS in cases where: the offended party is a relative of a higher degree than the offender (grandson kills grandfather), or
with her grandmother. Atop is the commonlaw husband of her grandmother. Atop was found guilty of 4 counts of rape which was committed in 1993 (2x), 1994 and 1995. The lower court took into account the Aggravating Circumstance of relationship.
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Held: The law cannot be stretched to include
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2. If it is intentional to embolden offender to commit crime
persons attached by common-law relations. In this case, there is no blood relationship or legal bond that links Atop to his victim.
c. Degree of Instruction/ Education 1. Refers to the lack of sufficient intelligence of and knowledge of the full significance of one’s act 2. Being illiterate does not mitigate liability if crime committed is one which one inherently understands as wrong (e.g. parricide) 3. To be considered mitigating, degree of instruction must have some reasonable connection to the offense.
People v. Marcos (2001): In order that the alternative circumstance of relationship may be taken into consideration in the imposition of the proper penalty, the offended party must either be the (a) spouse, (b) ascendant, (c) descendant, (d) legitimate, natural or adopted brother or sister, or (e) relative by affinity in the same degree, of the offender.. The rule is that relationship is aggravating in crimes against persons as when the offender and the offended party are relatives of the same level, such as killing a brother.
F. ABSOLUTORY CAUSE There are FOUR TYPES of absolutory circumstances: 1. INSTIGATION 2. PARDON 3. OTHER ABSOLUTORY CAUSES 4. ACTS NOT COVERED BY LAW AND IN CASE OF EXCESSIVE PUNISHMENT
E.2. INTOXICATION It is only the circumstance of intoxication which a. if not mitigating, b. is automatically aggravating.
[ART. 5] a. When mitigating 1. There must be an indication that a. because of the alcoholic intake of the offender, b. he is suffering from diminished self-control. c. It is not the quantity of alcoholic drink. d. Rather it is the effect of the alcohol upon the offender which shall be the basis of the mitigating circumstance. 2. That offender is a. not a habitual drinker and b. did not take alcoholic drink with the intention to reinforce his resolve to commit crime
Absolutory Causes – those where the act committed is a crime but for reasons of public policy and sentiment there is no penalty imposed.
F.1. INSTIGATION Entrapment Ways and means are resorted to for the purpose of trapping and capturing the lawbreaker in the execution of his criminal plan
Instigation
The instigator practically induces the would-be accused into the commission of the offense and himself becomes a coprincipal. The law enforcer The means originate conceives the from the mind of the commission of the criminal. crime and suggests to
b. When Aggravating: 1. If intoxication is habitual 85
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A person has planned or is about to commit a crime and ways and means are resorted to by a public officer to trap and catch the criminal. Not a bar to the prosecution and conviction of the lawbreaker.
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the accused who carries it into execution. A public officer or a private detective induces an innocent person to commit a crime and would arrest him upon or after the commission of the crime by the latter. The accused must be acquitted because the offender simply acts as a tool of the law enforcers
Example of entrapment: A, a government anti-narcotics agent, acted as a poseur buyer of shabu and negotiated with B, a suspected drug pusher who is unaware that A is a police officer. A then paid B in marked money and the latter handed over a sachet of shabu. Upon signal, the cops closed in on B
Example of instigation: A, leader of an anti-narcotics team, approached and persuaded B to act as a buyer of shabu and transact with C, a suspected pusher. B was given marked money to pay C for a sachet of shabu. After the sale was consummated, the cops closed in and arrested both B and C.
Entrapment - Trapping persons into crime for the purpose of instituting criminal prosecutions. It is a scheme or technique ensuring the apprehension of the criminals by being in the actual crime scene.
People v. Pacis (2002): Yap, an NBI agent, received information that a Pacis was offering to sell ½ kg of "shabu." A buy-bust operation was approved. The informant introduced Yap to Pacis as an interested buyer. They negotiated the sale of ½ kg of shabu. Pacis handed to Yap a paper bag with the markings "Yellow Cab". While examining it, Pacis asked for the payment. Yap gave the "boodle money" to Pacis. Upon Pacis's receipt of the payment, the officers identified themselves as NBI agents and arrested him.
The law officers shall not be guilty to the crime if they have done the following: a) He does not induce a person to commit a crime for personal gain or is not involved in the planning of the crime. b) Does take the necessary steps to seize the instrument of the crime and to arrest the offenders before he obtained the profits in mind.
Held: The operation that led to the arrest of appellant was an entrapment, not instigation. In entrapment, ways and means are resorted to for the purpose of trapping and capturing lawbreakers in the execution of their criminal plan. In instigation, instigators practically induce the would-be defendant into the commission of the offense and become coprincipals themselves. Entrapment is sanctioned by law as a legitimate method of apprehending criminal elements engaged in the sale and distribution of illegal drugs.
Instigation - The involvement of a law officer in the crime itself in the following manner: 1) He induces a person to commit a crime for personal gain. 2) Doesn’t take the necessary steps to seize the instrument of the crime & to arrest the offenders before he obtained the profits in mind. 3) He obtained the profits in mind even though afterwards does take the
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9. Under Article 219, discovering secrets through seizure of correspondence of the ward by their guardian is not penalized. 10. Ways on how criminal liability is extinguished under Art 89.
US v. Phelps (1910): Phelps was charged and found guilty for violating the Opium Law (Act No. 1761). Phelps was induced by Smith, an employee of the Bureau of Internal Revenue, into procuring opium, providing for a venue and making arrangements for the two of them to smoke opium.
F.4. ACTS NOT COVERED BY LAW AND IN CASE OF EXCESSIVE PUNISHMENT
Held: Smith not only suggested the commission of the crime but also expressed his desire to commit the offense in paying the amount required for the arrangements. Such acts done by employees of government in encouraging or inducing persons to commit a crime in order to prosecute them are most reprehensible.
Art. 5 RPC. Duty of the court in connection with acts which should be repressed but which are not covered by the law, and in cases of excessive penalties. 1) Whenever a court has knowledge of any act which it may deem proper to repress and which is not punishable by law, it shall render the proper decision, and shall report to the Chief Executive, through the Department of Justice, the reasons which induce the court to believe that said act should be made the subject of legislation. 2) In the same way, the court shall submit to the Chief Executive, through the Department of Justice, such statement as may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the degree of malice and the injury caused by the offense.
F.2. PARDON General rule: Pardon does not extinguish criminal action (Art 23). Exception: Pardon by marriage between the accused and the offended party in cases of SEDUCTION, ABDUCTION, RAPE AND ACTS OF LASCIVIOUSNESS (Art 344).
F.3. OTHER ABSOLUTORY CAUSES 1. Spontaneous desistance [Art. 6] 2. Light felonies not consummated [Art. 7] 3. Accessories in light felonies 4. Accessories exempt under Art. 20 5. Trespass to dwelling to prevent serious harm to self [Art. 280] 6. Exemption from criminal liability in crimes against property 7. Under Article 332, exemptions from criminal liability for cases of theft, swindling and malicious mischief. There would only be civil liability. 8. Death under exceptional circumstances (Art. 247)
Art. 5 covers two situations: 1. Where the court cannot convict the accused because the act he committed is
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not punishable under the law, but the court deems it proper to repress such act. The proper judgment is acquittal. The judge must report to the Chief Executive that said act be made subject of penal legislation and the reasons therefore.
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without, however, depriving him of the consciousness of his act. An unwed mother killed her child in order to conceal a dishonor. The concealment of dishonor is an extenuating circumstance insofar as the unwed mother or the maternal grandparents are concerned, but not insofar as the father of the child is concerned. Mother killing her new born child to conceal her dishonor, penalty is lowered by two degrees. Since there is a material lowering of the penalty or mitigating the penalty, this is an extenuating circumstance.
2. Where the court after trial finds the accused guilty, and the penalty prescribed for the crime appears too harsh considering the conditions surrounding the commission of the crime, The judge should impose the law (not suspend the execution of the sentence). The most that he could do is recommend to the Chief Executive to grant executive clemency.
PERSONS CRIMINALLY LIABLE/DEGREE OF PARTICIPATION Under the Revised Penal Code, when more than one person participated in the commission of the crime, the law looks into their participation because in punishing offenders, the Revised Penal Code classifies them as: 1. PRINCIPAL 2. ACCOMPLICE 3. ACCESSORY This classification is true only under the RPC and is not applied under special laws, because the penalties under the latter are never graduated. Do not use the term “principal” when the crime committed is a violation of special law (use the term “offender/s, culprit/s, accused)
People v. Veneracion (1995): Held: The law plainly and unequivocally provides that “when by reason or on the occasion of rape, a homicide is committed, the penalty shall be death. Courts are not concerned with wisdom, efficacy or morality of law. The discomfort faced by those forced by law to impose death penalty is an ancient one, but it is a matter upon which judges have no choice. The Rules of Court mandates that after an adjudication of guilt, the judges should impose the proper penalty and civil liability provided for by the law on the accused.
As to the liability of the participants in the grave, less grave or light felony: 11. When the felony is grave, or less grave, all participants are criminally liable. 12. But when the felony is only light, only the principal and the accomplice are liable. The accessory is not.
G. EXTENUATING CIRCUMSTANCES Circumstances which mitigate the criminal liability of the offender but not found in Art. 13
Illustration: A kleptomaniac is criminally liable. But he would be given the benefit of a mitigating circumstance analogous to paragraph 9 of Article 13, that of suffering from an illness which diminishes the exercise of his will power
Basis: In the commission of light felonies, the social wrong as well as the individual prejudice
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is so small that penal sanction is deemed not necessary.
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Two ways of becoming principal by induction: a. By directly forcing another to commit a crime by: a. Using irresistible force - such physical force as would produce an effect upon the individual that despite all his resistance, it reduces him to a mere instrument.
G.1. PRINCIPAL (1) By Direct Participation (2) By Inducement (3) By Indispensable Cooperation (1) By Direct Participation Requisites: (1) That they participated in the criminal resolution; and (2) That they carried out their plan and personally took part in its execution by acts which directly tended to the same end.
b. Causing uncontrollable fear – such fear that must be grave, actual, serious and of such kind that majority of men would succumb to such moral compulsion. The fear must be both grave and imminent and not speculative, fanciful or remote.
Those who are liable (participated in the criminal resolution): materially execute the crime; appear at the scene of the crime; perform acts necessary in the commission of the offense.
b. By directly inducing another to commit a crime by: a. Giving of price, or offering of reward or promise. The one giving the price or offering the reward or promise is a principal by inducement while the one committing the crime in consideration thereof is a principal by direct participation. b. Using words of command. The person who used the words of command is a principal by inducement while the person who committed the crime because of the words command is a principal by direct participation. (1) That the one uttering the words of command must have the intention of procuring the commission of the crime; (2) That the one who made the command must have an ascendancy or influence over the person who acted;
Why one who does not appear at the scene of the crime is not liable: his non-appearance is deemed desistance which is favored and encouraged. conspiracy is generally not a crime unless the law specifically provides a penalty therefore. there is no basis for criminal liability because there is no criminal participation. (2) By Inducement Elements: a. That the inducement be made directly with the intention of procuring the commission of the crime; b. That such inducement be the determining cause of the commission of the crime by the material executor. 89
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(3) That the words used must be so direct, so efficacious, so powerful as to amount to physical or moral coercion; (4) That the words of command must be uttered prior to the commission of the crime; and (5) The material executor of the crime has no personal reason to commit the crime.
one shouting to be liable. Words uttered in the heat of the moment is not enough to make one a principal to the crime.
Inducement must be strong enough that the person induced could not resist. This is tantamount to an irresistible force compelling the person induced to carry out the crime. Ill-advised language is not enough unless he who made such remark or advice is a co-conspirator in the crime committed.
Joint or simultaneous action per se is not indicia of conspiracy without showing of common design. Oscar has no rancor with the victim for him to kill the latter. Considering that Ernesto had great moral ascendancy and influence over Oscar, being much older (35 years old) than the latter, who was 18 years old, and it was Ernesto who provided his allowance, clothing as well as food and shelter,
People v. Valderrama (1993): Ernesto shouted to his younger brother Oscar, “Birahin mo na, birahin mo na!” Oscar stabbed the victim. It was held that there was no conspiracy.
When does a principal by induction become liable? The principal by induction becomes liable only when the principal by direct participation committed the act induced. The inducement must precede the act induced and must be so influential in producing the criminal act that without it, the act would not have been performed.
Ernesto is principal by inducement.
People v. Agapinay (1990): The one who uttered “kill him, we will bury him” while the felonious aggression was taking place cannot be held liable as principal by inducement. Utterance was said in the excitement of the hour, not a command to be obeyed.
People v. Madall (1990):
What are the effects of acquittal of principal by direct participation upon the liability of principal by inducement? Conspiracy is negated by the acquittal of co-defendant.
The son was mauled. The family was not in good terms with their neighbors. The father challenged everybody and when the neighbors approached, he went home to get a rifle.
Illustration: While in the course of a quarrel, a person shouted to A, “Kill him! Kill him!” A killed the other person. Is the person who shouted criminally liable? Is that inducement? No. The shouting must be an irresistible force for the
The shouts of his wife “here comes another, shoot him” cannot make the wife a principal by inducement. 90
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Cooperation in the commission of the offense – to desire or wish in common a thing. But that common will or purpose does not necessarily mean a previous understanding, for it can be explained or inferred from the circumstances of each case.
It is not the determining cause of the crime in the absence of proof that the words had great influence over the husband. Neither is the wife’s act of beaming the victim with a flashlight indispensable to the killing. She assisted her husband in taking good aim, but such assistance merely facilitated the felonious act of shooting.
Collective Criminal Responsibility This is present when the offenders are criminally liable in the same manner and to the same extent. The penalty to be imposed must be the same for all.
Considering that it was not so dark and the husband could have accomplished the deed without his wife’s help, and considering further that doubts must be resolved in favor of the accused, the liability of the wife is only that of an accomplice.
Principals by direct participation have collective criminal responsibility. Principals by induction, except those who directly forced another to commit a crime, and principals by direct participation have collective criminal responsibility. Principals by indispensable cooperation have collective criminal responsibilities with the principals by direct participation.
(3) By Indispensable Cooperation Elements: a. Participation in the criminal resolution, that is, there is either anterior conspiracy or unity of criminal purpose and intention immediately before the commission of the crime charged; Requires participation in the criminal resolution There must be conspiracy Concurrence is sufficient
Individual Criminal Responsibility In the absence of any previous conspiracy, unity of criminal purpose and intention immediately before the commission of the crime, or community of criminal design, the criminal responsibility arising from different acts directed against one and the same person is individual and not collective, and each of the participants is liable only for the act committed by him.
b. Cooperation in the commission of the offense by performing another act, without which it would have been accomplished. Cooperation must be indispensable If dispensable, accused is only an accomplice If cooperation is necessary in the execution of the offense, accused is considered as a principal by direct participation.
The basis is the importance of the cooperation to the consummation of the crime. If the crime could hardly be committed without such cooperation, then such cooperator would be a principal. If the cooperation merely facilitated or hastened the consummation of the crime, the cooperator is merely an accomplice.
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The focus is not just on participation but on the importance of participation in committing the crime.
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accomplishment Accomplices are merely instruments Conspirators are the who perform acts not authors of a crime essential to the perpetration of the offense.
In case of doubt, favor the lesser penalty or liability. Apply the doctrine of pro reo.
G.2. ACCOMPLICE Accomplices – are persons who, not acting as principals, cooperate in the execution of the offense by previous and simultaneous acts, which are not indispensable to the commission of the crime.
Elements: 1. That there be community of design; that is, knowing the criminal design of the principal by direct participation, he concurs with the latter in his purpose; 2. That he cooperates in the execution of the offense by previous or simultaneous acts, with the intention of supplying material or moral aid in the execution of the crime in an efficacious way; and 3. That there be a relation between the acts done by the principal and those attributed to the person charged as accomplice.
They act as mere instruments that perform acts not essential to the perpetration of the offense. When is one regarded as an accomplice? Determine if there is a conspiracy. If there is, as a general rule, the criminal liability of all will be the same, because the act of one is the act of all.
Principal by Cooperation
What are the other traits of an accomplice? does not have previous agreement or understanding; or is not in conspiracy with the principal by direct participation.
Conspirator
Accomplice
Cooperation is Cooperation is not indispensable to the indispensable to the commission of the act commission of the act
Accomplice
G.3. ACCESSORIES
They know and agree They know of and join with the criminal in the criminal design design Accomplices come to Conspirators know know about it after the criminal intention the principals have because they reached the decision themselves have and only then do they decided upon such agree to cooperate in course of action its execution Conspirators decide Accomplices merely that a crime should be assent to the plan and committed cooperate in its
Accessories – are those who (1) having knowledge of the commission of the crime and (2) without having participated therein, either as principals or accomplices, (3) take part subsequent to its commission in any of the manners provided by the Art. 19, RPC. When accessories are not criminally liable: 1. When the felony committed is a light felony 2. When the accessory is related to the principal as: a. spouse b. ascendant, or descendant, or 92
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c. brother or sister whether legitimate, or natural or adopted or d. where the accessory is a relative by affinity within the same degree, unless the accessory himself profited from the effects or proceeds of the crime or assisted the offender to profit therefrom.
Note: Even if only two of the principals guilty of murder are the brothers of the accessory and the others are not related to him, such accessory is exempt from criminal liability.
Instances when one becomes an accessory: (1) Profiting oneself or assisting the offender to profit by the effects of the crime:
Presidential Decree No. 1612 [Anti-Fencing
Law]
One who knowingly profits or assists the principal to profit by the effects of robbery or theft (i.e. a fence) is not just an accessory to the crime, but principally liable for fencing The penalty is higher than that of a mere accessory to the crime of robbery or theft. Mere possession of any article of value which has been the subject of robbery or theft brings about the presumption of “fencing”. PD 1612 has, therefore, modified Art. 19 of the RPC
although the penalty is that of an accomplice, not just an accessory, to the piracy or the brigandage. Section 4 of PD 532 provides that any person who knowingly and in any manner acquires or receives property taken by such pirates or brigands or in any manner derives benefit therefrom, shall be considered as an accomplice of the principal offenders in accordance with the Rules prescribed by the Revised Penal Code. It shall be presumed that any person who does any acts provided in this section has performed them knowingly, unless the contrary is proven. Although Republic Act 7659, in amending Article 122 of the RPC, incorporated therein the crime of piracy in Philippine territorial waters and thus correspondingly superseded PD 532, section 4 of said Decree, which punishes said acts as a crime of abetting piracy or brigandage, still stands as it has not been replaced or modified, and is not inconsistent with any provision of RA 7659.
(3) Concealing or Destroying the Body, Effects or Instruments of the Crime When the crime is robbery or theft, with respect to the third involvement of the accessory, do not overlook the purpose which must be to prevent discovery of the crime. The corpus delicti is not the body of the person who is killed. o Even if the corpse is not recovered, as long as that killing is established beyond reasonable doubt, criminal liability will arise. o If there is someone who destroys the corpus delicti to prevent discovery, he becomes an accessory.
(2) Acquiring the effects of piracy or brigandage: Presidential Decree 532 [Anti-piracy
and Highway Robbery law of 1974)]
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as the Law Penalizing “Obstruction of Justice”)
(4) Harboring or Concealing an Offender In the fourth form or manner of becoming an accessory, take note that the law distinguishes between: a Public Officer harboring, concealing or assisting the principal to escape Requisites: (1) The accessory is a public officer; (2) He harbors, conceals, or assists in the escape of the principal; (3) The public officer acts with abuse of his public functions; (4) The crime committed by the principal is any crime, provided it is not a light felony. a Private Citizen or civilian harboring, concealing or assisting the principal to escape Requisites: (1) The accessory is a private person; (2) He harbors, conceals or assists in the escape of the author of the crime; (3) The crime committed by the principal is either treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime.
Public Officer
Specifies the crimes that should be committed in case a civilian aids in the escape The offender is the principal or must be convicted of the crime charged
The one who harbored or concealed an offender is still an accessory
No specification of the crime to be committed by the offender in order that criminal liability be incurred The offender need not even be the principal or need not be convicted of the crime charged An offender of any crime is no longer an accessory but is simply an offender without regard to the crime of the person assisted to escape
Whether the accomplice and the accessory may be tried and convicted even before the principal is found guilty There is an earlier Supreme Court ruling that the accessory and accomplice must be charged together with the principal; if the latter is acquitted, the accomplice and the accessory shall not be criminally liable, unless the acquittal is based on a defense which is personal only to the principal. However, it is not always true that the accomplice and the accessory cannot be criminally liable without the principal being first convicted. Under Rule 110 of the Revised Rules on Criminal Procedure, it is required that all those involved in the commission of the crime must be included in the information that may be filed.
Civilian
The nature of the The nature of the crime is immaterial crime is material For him to become an accessory, the What is material is principal must have that he used his committed the crime public function in of treason, parricide, assisting the escape murder or attempt on the life of the Chief Executive
Revised Penal Code
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The liability of the accused will depend on the quantum of evidence adduced by the prosecution against the particular accused but
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the prosecution must initiate the proceedings against the principal. b. Even if the principal is convicted, if the evidence presented against a supposed accomplice or accessory does not meet the required proof beyond reasonable doubt, then said accused will be acquitted. So the criminal liability of an accomplice or accessory does not depend on the criminal liability of the principal but depends on the quantum of evidence.
c.
But if the evidence shows that the act done does not constitute a crime and the principal is acquitted, then the supposed accomplice and accessory should also be acquitted. d. If there is no crime, then there is no criminal liability, whether principal, accomplice or accessory.
G.4. DECREE PENALIZING OBSTRUCTION OF APPREHENSION AND PROSECUTION OF CRIMINAL OFFENDERS [P.D. 1829]
e.
What is imposed: Prision correccional in its maximum period, or Fine ranging from PhP 1,000 – 6,000, or Both Upon any person who knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases through the acts enumerated in Sec. 1
f.
g.
h.
1. Punishable acts a. Preventing witnesses from testifying in any criminal proceeding or from reporting the commission of any offense or the identity of any offender/s by 95
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from appearing in the investigation of, or official proceedings in, criminal cases, or imposing a condition, whether lawful or unlawful, in order to prevent a person from appearing in the investigation of, or in official proceedings in criminal cases; Giving a false or fabricated information to mislead or prevent the law enforcement agencies from apprehending the offender or from protecting the life or property of the victim; or fabricating information from the data gathered in confidence by investigating authorities for purposes of background information and not for publication and publishing or disseminating the same to mislead the investigator or the court.
CRIMINAL LAW The punishable acts in PD 1829, compared to RPC Art. 20 are prompted by a detestable greed, not by affection. The benefits of the exception in Art. 20 do not apply to PD 1829.
E. PENALTIES Penalty - the suffering that is inflicted by the State for the transgression of a law. Different Juridical Conditions of Penalty: 1. Must be PRODUCTIVE OF SUFFERING, without affecting the integrity of the human personality. 2. Must be COMMENSURATE to the offense – different crimes must be punished with different penalties. 3. Must be PERSONAL – no one should be punished for the crime of another. 4. Must be LEGAL – it is the consequence of a judgment according to law. 5. Must be CERTAIN – no one may escape its effects. 6. Must be EQUAL for all. 7. Must be CORRECTIONAL.
2. Compare with Art. 20, RPC (accessories exempt from criminal liability) Ground for exemption under Art. 20 The exemption provide in this article is based on the ties of blood and the preservation of the cleanliness of one’s name, which compels one to conceal crimes committed by relatives so near as those mentioned in this article.
E.1. GENERAL PRINCIPLES
An accessory is exempt from criminal liability when the principal is his – Spouse Ascendant Descendant Legitimate, natural or adopted brother, sister or relative by affinity within the same degree,
Article 21. Penalties that may be imposed. — No felony shall be punishable by any penalty not prescribed by law prior to its commission.
i. Nulla poena sine lege The Government is prohibited from imposing punishment to any person for a felony with any penalty which has not been prescribed by the law. REASON: An act or omission cannot be punished by the State if at the time it was committed there was no law prohibiting it, because a law cannot be rationally obeyed unless it is first shown, and a man cannot be expected to obey an order that has not been given.
Accessory is not exempt from criminal liability even if the principal is related to him if he: a. Profited by the effects of the crime, or b. Assisted the offender to profit by the effect of the crime.
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there is no question that the operation of Article 71 involves the actual application of the death penalty as a means of determining the extent which a person’s liberty is to be deprived.
Note: It has no application to any of the provisions of the RPC for the reason that for every felony defined in the Code, a penalty has been prescribed.
ii. Must be individual and definite
Since RA 9346 unequivocally bars the application of the death penalty, as well as expressly repeals all such statutory provisions requiring the application of the death penalty, such effect necessarily extends to its relevance to the graduated scale of penalties under Article 71.
Penalties must be individual, i.e., not shared, and definite, e.g., imprisonment, fine, imprisonment and fine, imprisonment or fine; but not imprisonment and/or fine.
iii. Court must impose the prescribed penalty, even if it is excessive. In case of excessive penalties, the court must still impose the penalty but it shall recommend reduction, commutation, or other actions to the Chief Executive. (Art. 5, RPC)
The court cannot find basis to conclude that RA 9346 intended to retain the operative effects of the death penalty in the graduation of the other penalties in our penal laws.
RA 9346 expressly repealed RA 8177 or “Act Designating Death by Lethal Injection” and RA 7659 or “Death Penalty Law.”
Munoz cannot enjoin us to adopt such conclusion.
RA 9346 repealed all the other laws imposing death penalty.
RA is not swaddled in the same restraints appreciated by Muñoz on Section 19(1), Article III.
Sec. 2 states that: “In lieu of the death penalty, the following shall be imposed: a. The penalty of reclusion perpetua, when the law violated makes use of the
The very Congress empowered by the Constitution to reinstate the imposition of the death penalty once thought it best to do so, through RA 7650.
nomenclature of the penalties of the Revised Penal Code; or
Within the same realm of constitutional discretion, Congress has reversed itself.
b. The penalty of life imprisonment, when the law violated does not make use of
It must be asserted that today, the legal status of the suppression of the death penalty in the Philippines has never been more secure than at any time in our political history as a nation.
the nomenclature of the penalties of the Revised Penal Code.” People v. Bon (2006) There is no material difference between “imposition” and “application,” for both terms embody the operation in law of the death penalty.
E.2. PURPOSES Three-fold purpose of penalty under the RPC: 1. RETRIBUTION OR EXPIATION The penalty is commensurate with the gravity of the offense. It permits society to exact
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proportionate revenge, and the offender to atone for his wrongs. 2. CORRECTION OR REFORMATION As shown by the rules which regulate the execution of the penalties consisting in deprivation of liberty. 3. SOCIAL DEFENSE As shown by its inflexible severity to recidivist and habitual delinquents.
CRIMINAL LAW (iv) Perpetual absolute disqualification (v) Public censure
or
special
(2) According to subject-matter (a) Corporal (death) (b) Deprivation of freedom (reclusion, prision, arresto) (c) Restriction of freedom (destierro) (d) Deprivation of rights (disqualification
and suspension)
E.3. CLASSIFICATIONS
(e) Pecuniary (fine)
i. Major Classification
(3) According to their gravity (a) Capital (b) Afflictive (c) Correctional (d) Light
1.
PRINCIPAL PENALTIES – those expressly imposed by the court in the judgment of conviction. 2. ACCESSORY PENALTIES – those that are deemed included in the imposition of the principal penalties. 3. SUBSIDIARY PENALTIES – those imposed in lieu of principal penalties, i.e., imprisonment in case of inability to pay the fine.
E.5. DURATION AND EFFECT A penal law shall only have retroactive effect if it favors persons guilty of felonies, who are not considered habitual criminals as defined in Article 62. (Article 22)
Penalties that are either principal or accessory: Perpetual or temporary absolute disqualification Perpetual or temporary special disqualification Suspension These may be principal or accessory penalties, because they are formed in the 2 general classes. (Asked 3 times in the Bar Exams)
E.6. PENALTIES IMPOSED
WHICH
MAY
1. Scale of Principal Penalties 2. Capital punishment: (D) a. Death. 3. Afflictive penalties: (RP, RT, PAD, TAD, PSD, TSD, PM) a. Reclusion perpetua, b. Reclusion temporal, c. Perpetual or temporary absolute disqualification, d. Perpetual or temporary special disqualification, e. Prision mayor. 4. Correctional penalties: (PC, AM, S, Des) a. Prision correccional, b. Arresto mayor, c. Suspension, d. Destierro. 5. Light penalties: (Am,Pc)
ii. Other Classifications of Penalties (1) According to their divisibility (a) Divisible (i) those that have fixed duration (ii) divisible into three periods (b) Indivisible (i) those which have no fixed duration (ii) Death (iii) Reclusion perpetua 98
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a. Arresto menor, b. Public censure. 6. Penalties common to the three preceding classes:(F, Bond) i. Fine, and ii. Bond to keep the peace.
c. Suspension from public office, the right to vote and be voted for, the profession or calling. d. Civil interdiction, e. Indemnification, f. Forfeiture or confiscation of instruments and proceeds of the offense, g. Payment of costs
Scale of Accessory Penalties (PAD, TAD, PSD, TSD, S, CI, I, F, Pay) a. Perpetual or disqualification, b. Perpetual or disqualification,
temporary
Penalty Death (REPEALED) Death, when not executed due to pardon or commutation (REPEALED) Reclusion perpetua
The following table also contains DISQUALIFICATION as an afflictive penalty, because its different forms can also be imposed as a principal although it is primarily categorized as an accessory penalty.
absolute
temporary
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special
Duration
Effects
Accessories
Indivisible (1) PAD (2) Civil interdiction 30 yrs from sentence (1) PAD (2) Civil interdiction for life
20 years & 1 day to 40 years (Indivisible) (1) Deprivation of public office, even if by election (2) Deprivation of right to vote & be voted for (3) Disqualification from public office held (4) Loss of retirement rights (1) Deprivation of office, employment, profession, or calling affected (2) Disqualification from similar offices or employments
Perpetual absolute disqualification (PAD)
For life
Perpetual special disqualification (PSD)
For life
Reclusion temporal
12 years & 1 day to 20 years
(1) PAD (2) Civil interdiction for duration of sentence
Prision mayor
6 years & 1 day
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Penalty
Duration
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Effects
to 12 years
Temporary disqualification (TAD)
absolute
Temporary disqualification (TSD)
special
6 years & 1 day to 12 years
6 years & 1 day to 12 years
(2) PSD of suffrage (1) Deprivation of public office, even if by election (2) Deprivation of right to vote & be voted for during sentence (3) Disqualification from public office held during sentence (4) Loss of retirement rights (1) Deprivation of office, employment, profession, or calling affected (2) Disqualification from similar offices or employments
Specific Principal and Accessory Penalties 1. a.
Accessories
the person sentenced to suffer it shall be pardoned after undergoing the penalty for thirty (30) years, unless by reason of his conduct or some other serious cause, he shall be considered by the Chief Executive as unworthy of pardon (Art. 27, Revised Penal Code)."
AFFLICTIVE PENALTIES Reclusion Perpetua
Duration: 20 years and 1 day to 40 years Accessory Penalties: 1. Civil interdiction for life or during the period of the sentence as the case may be. 2. Perpetual Absolute Disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.
Reclusion perpetua distinguished from life imprisonment
LIFE IMPRISONMENT Imposed for serious offenses penalized by special laws Does not carry with it accessory penalties
RECLUSION PERPETUA Prescribed under the RPC
Carries with it accessory penalties Entails imprisonment for at least 30 years after which the Does not appear to convict becomes have any definite eligible for pardon extent or duration although the maximum period shall in no case
Reclusion perpetua remains an indivisible penalty despite the duration provided for it. In imposing the penalty of reclusion perpetua, it is unnecessary for the Court to specify the length of imprisonment.
People v. Ramirez (2001) Reclusion Perpetua is imprisonment for life but 100
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exceed 40 years
2. CORRECTIONAL PENALTIES b.
Reclusion Temporal a.
Duration: 12 years and 1 day to 20 years Accessory Penalties: 1. Civil interdiction for life or during the period of the sentence as the case may be. 2. Perpetual Absolute Disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon. c.
Duration: 6 months and 1 day to 6 years Accessory Penalties: 1. Suspension from public office 2. Suspension from the right to follow a profession or calling 3. Perpetual Special Disqualification for the right of suffrage, if the duration of the imprisonment shall exceed 18 months
Prision mayor
b.
Duration
Prision correccional
6 months & 1 day to 6 years
Suspension
6 months & 1 day to 6 years
Destierro
6 months & 1 day to 6 years
rresto mayor
1 month & 1 day to 6 months
Arresto Mayor
Duration: 1 month and 1 day to 6 months Accessory Penalties: 1. Suspension of right to hold office 2. Suspension of the right of suffrage during the term of the sentence.
Duration: 6 years and 1 day to 12 years Accessory Penalties: 1. Temporary Absolute Disqualification 2. Perpetual Special Disqualification from the right to suffrage which the offender shall suffer although pardoned as to the principal penalty unless the same
Penalty
Prision Correccional
Effects
Accessories (1) Suspension from public office (2) Suspension from profession or calling (3) PSD of suffrage, if the duration of imprisonment exceeds 18 mos.
(1) Public office (2) Profession or calling (3) Suffrage Prohibition to enter w/in 25-250 km radius from the designated place (1) Suspension of right to hold office (2) Suspension of the right of suffrage 101
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determined by the court in the judgment, or otherwise to deposit such amount in the office of the clerk of the court to guarantee said undertaking.
3. LIGHT PENALTIES a. Arresto Menor Duration: 1 day to 30 days Accessory Penalties: 1. Suspension of right to hold office 2. Suspension of the right of suffrage during the term of the sentence. b.
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The court shall determine, according to its discretion, the period of duration of the bond. Should the person sentenced fail to give the bond as required he shall be detained for a period which shall in no case exceed six months, if he shall have been prosecuted for a grave or less grave felony, and shall not exceed thirty days, if for a light felony
Public Censure
4. Penalties common to afflictive, correctional, and light penalties a. Fine Fine is: Afflictive if more than P6,000. Correctional if P200 to P6,000. Light Penalty if less than P200.
2 ways of giving Bond: (1) The offender must present 2 sufficient sureties who shall undertake that (1) the offender will not commit the offense sought to be prevented, (2) and that in case such offense be committed, they will pay the amount determined by the court. (2) The offender must deposit such amount with the Clerk of Court to guarantee said undertaking.
This article merely classifies fine and has nothing to do with the definition of light felony. The court can fix any amount of the fine within the limits established by law. It must consider (1) the mitigating and aggravating circumstances, and more particularly, (2) the wealth or means of the culprit.
The court shall determine the period of duration of the bond.
When the law does not fix the minimum of the fine, the determination of the amount of the fine to be imposed upon the culprit is left to the sound discretion of the court, provided it shall not exceed the maximum authorized by law.
The offender may be detained, if he cannot give the bond, for a period not to exceed 6 months if prosecuted for grave or less grave felony, or for a period not to exceed 30 days, if for a light felony.
Note: Fines are not divided into 3 equal portions.
Bond to keep the peace is different from bail bond which is posted for the provisional release of a person arrested for or accused of a crime.
b.
Bond to Keep the Peace
Art. 35. Effects of bond to keep the peace. — It shall be the duty of any person sentenced to give bond to keep the peace, to present two sufficient sureties who shall undertake that such person will not commit the offense sought to be prevented, and that in case such offense be committed they will pay the amount
Penalty
Duration
Accessories
Arresto menor
1 day to 30 days
Suspension of right to hold office and right of suffrage
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exercise of the right of suffrage. The perpetual or temporary special disqualification for the exercise of the right of suffrage shall deprive the offender perpetually or during the term of the sentence, according to the nature of said penalty, of the right to vote in any popular election for any public office or to be elected to such office. Moreover, the offender shall not be permitted to hold any public office during the period of his disqualification.
(Penalties Common to All Three Types) PENALTY DURATION ACCESSORIES Fine Bond to As keep the determined peace by the court 4. ACCESSORY PENALTIES a. Perpetual or temporary absolute disqualification b. Perpetual or temporary special disqualification c. Suspension from public office, the right to vote and be voted for, the profession or calling d. Civil interdiction e. Indemnification/ Forfeiture or confiscation of instruments and proceeds of the offense f. Payment of costs a. Perpetual or Disqualification
Temporary
Art. 33. Effects of the penalties of suspension
from any public office, profession or calling, or the right of suffrage.
The suspension from public office, profession or calling, and the exercise of the right of suffrage shall disqualify the offender from holding such office or exercising such profession or calling or right of suffrage during the term of the sentence. The person suspended from holding public office shall not hold another having similar functions during the period of his suspension.
Absolute
Art. 34. Civil interdiction.
Civil interdiction shall deprive the offender during the time of his sentence of the rights of parental authority, or guardianship, either as to the person or property of any ward, of marital authority, of the right to manage his property and of the right to dispose of such property by any act or any conveyance inter vivos.
Effects: 1. Deprivation of any public office or employment of offender; 2. Deprivation of the right to vote in any election or to be voted upon; 3. Loss of rights to retirement pay or pension
Art. 45. Confiscation and forfeiture of the proceeds or instruments of the crime.
Note: Perpetual absolute disqualification is effective during the lifetime of the convict and even after the service of the sentence. Temporary absolute disqualification lasts during the term of the sentence except (1) deprivation of the public office or employment; and (2) loss of all rights to retirement pay or other pension for any office formerly held. (See Art. 30, par. 3).
Every penalty imposed for the commission of a felony shall carry with it the forfeiture of the proceeds of the crime and the instruments or tools with which it was committed. Such proceeds and instruments or tools shall be confiscated and forfeited in favor of the Government, unless they be property of a third person not liable for the offense, but those articles which are not subject of lawful commerce shall be destroyed.
Art. 32. Effect of the penalties of perpetual or temporary special disqualification for the 103
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Special
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d. Civil Interdiction Effects: Deprivation of the following rights: 1. Parental authority 2. Guardianship over the ward 3. Marital authority 4. Right to manage property and to dispose of the same by acts inter vivos. (Note: The convict can still dispose his property mortis causa).
Art. 31. Effect of the penalties of perpetual or temporary special disqualification.
(1) The deprivation of the office, employment, profession or calling affected; (2) The disqualification for holding similar offices or employments either perpetually or during the term of the sentence according to the extent of such disqualification. Effects: For public office, profession or calling: 1. Deprivation of the office, employment, profession or calling affected; 2. Disqualification for holding similar offices or employments during the period of disqualification.
Civil interdiction is an accessory penalty to the following principal penalties: 1. Death if commuted to life imprisonment; 2. Reclusion perpetua 3. Reclusion temporal e. Indemnification or Confiscation of Instruments or Proceeds of the Offense This is included in every penalty for the commission of the crime. The confiscation is in favor of the government.
Effects: For the exercise of right to suffrage: 1. Deprivation of the right to vote or to be elected in an office; 2. Cannot hold any public office during the period of disqualification. (Art. 31).
Property of a third person not liable for the offense is not subject to confiscation.
The penalty for disqualification if imposed as an accessory penalty is imposed for PROTECTION and NOT for the withholding of a privilege.
If the trial court did not order any confiscation of the proceeds of the crime, the government cannot appeal from the confiscation as that would increase the penalty already imposed.
Note: If temporary disqualification or suspension is imposed as an accessory penalty, the duration is the same as that of the principal penalty.
f.
Payment of Costs
Includes: 1. Fees, and 2. Indemnities, in the course of judicial proceedings.
c. Suspension from Public Office, the Right to Vote and Be Voted for, the Right to Practice a Profession or Calling Effects: 1. Disqualification from holding such office or the exercise of such profession or right of suffrage during the term of the sentence; 2. Cannot hold another office having similar functions during the period of suspension. (Art. 32).
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Costs may be fixed amounts already determined by law or regulations or amounts subject to a schedule. If the accused is convicted; costs may be charged against him.
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Disqualification from holding such office or the Suspension from exercise of such profession Public Office, the or right of suffrage during Right to Vote and the term of the sentence; Be Voted for, the Right to Practice a Cannot hold another office Profession or having similar functions Calling during the period of suspension.
If he is acquitted, costs are de officio, meaning each party bears his own expense. No costs shall be allowed against the Republic of the Philippines. (Rule 142, Sec. 1). Whether costs should be assessed against the accused lie within the discretion of the court. ACCESSORY EFFECTS PENALTY Deprivation of any public office or employment of offender; Perpetual or Temporary Deprivation of the right to Absolute vote in any election or to be Disqualification voted upon;
Deprivation of following rights:
Civil Interdiction
Indemnification or Confiscation of Instruments or Proceeds of the Offense
For public office, profession or calling:
Perpetual or Temporary Special Disqualification
Deprivation of the office, employment, profession or calling affected; Disqualification for holding similar offices or employments during the period of disqualification;
Payment of Costs
For the exercise of right to suffrage:
the
Loss of rights to retirement pay or pension
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Parental authority Guardianship over the ward Marital authority Right to manage property and to dispose of the same by acts inter vivos Forfeiture in favor of the Government of the proceeds of the crime and the instruments or tools with which it was committed If the accused be convicted, the costs may be charged against him If he be acquitted, costs are de officio, i.e., each party will bear his/her own expense
Measures not considered penalty (1) Preventive detention (2) Detention for medical causes (3) Rehabilitation of minors (4) Preventive suspension from public office (5) Administrative fines and penalties (6) Civil law deprivation of rights and reparations (Article 24)
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These are not penalties because they are not imposed as a result of judicial proceedings.
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1. Temporary absolute disqualification 2. Temporary special disqualification 3. Suspension
Notes: Those mentioned in par. 3 and 4 are merely preventive measures before conviction of offenders.
Rules in cases of temporary penalties: If offender is under detention, as when he is undergoing preventive imprisonment, Rule No. 1 applies. If not under detention, because the offender has been released on bail, Rule No. 3 applies.
The commitment of a minor mentioned in par. 2 is not a penalty because it is not imposed by the court in a judgment of conviction. The imposition of the sentence in such case is suspended.
Examples of penalties consisting in deprivation of liberty: 1. Imprisonment 2. Destierro
Examples of deprivation of rights established in penal form:
Rules in cases of deprivation of liberty: When the offender is not in prison, Rule No. 2 applies. If the offender is undergoing preventive imprisonment, Rule No. 3 applies but the offender is entitled to a deduction of full time or 4/5 of the time of his detention.
Art. 229, Family Code. Unless subsequently revived by a final judgment, parental authority also terminates: xxx (3) Upon judicial declaration of abandonment of the child in a case filed for the purpose; (4) Upon final judgment of a competent court divesting the party concerned of parental authority; xxx
Art. 29. Period of preventive imprisonment deducted from term of imprisonment
E.7. COMPUTATION OF PENALTIES
Offenders who have undergone preventive imprisonment shall be credited in the service of their sentence consisting of deprivation of liberty, with the full time during which they have undergone preventive imprisonment, if the detention prisoner agrees voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners, except in the following cases:
Rules on the computation of penalties (Article 28): 1. When the offender is in prison– the duration of temporary penalties is from the day on which the judgment of conviction becomes final. 2. When the offender is not in prison– the duration of penalty consisting in deprivation of liberty, is from the day that the offender is placed at the disposal of judicial authorities for the enforcement of the penalty. 3. The duration of other penalties – the duration is from the day on which the offender commences to serve his sentence.
a. When they are recidivists or have been convicted previously twice or more times of any crime; and b. When upon being summoned for the execution of their sentence they have failed to surrender voluntarily. If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon convicted prisoners, he shall be credited in the service of his sentence with four-fifths of the time during which he has undergone preventive
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Whenever it is believed that the penalty lower by one or two degrees corresponding to said acts of execution is not in proportion to the wrong done, the law fixes a distinct penalty for the principal in frustrated or attempted felony.
imprisonment. (As amended by Republic Act 6127, June 17, 1970). Whenever an accused has undergone preventive imprisonment for a period equal to or more than the possible maximum imprisonment of the offense charged to which he may be sentenced and his case is not yet terminated, he shall be released immediately without prejudice to the continuation of the trial thereof or the proceeding on appeal, if the same is under review.
There are two ways to graduate penalties: 1. By Degrees, which is affected by the following factors: a. Stage of Execution (consummated, frustrated, or attempted) b. Extent of Participation (principal, accomplice, or accessory) c. Privileged mitigating circumstances d. Qualifying circumstances e. Indeterminate Sentence Law (minimum, which is within the range of the penalty 1° lower than the penalty prescribed by the RPC)
In case the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment. (As amended by E.O. No. 214, July 10, 1988).
The accused undergoes preventive imprisonment when the offense charged is nonbailable, or even if bailable, he cannot furnish the required bail. The convict is to be released immediately if the penalty imposed after trial is less than the full time or four-fifths of the time of the preventive imprisonment. The accused shall be released immediately whenever he has undergone preventive imprisonment for a period equal to or more than the possible maximum imprisonment for the offense charged.
2. By Periods (for divisible penalties, i.e., penalties with minimum, medium, and maximum periods), which is affected by the attendant ordinary mitigating/aggravating circumstances
ii. Principals, Accomplices and Accessories in Consummated, Frustrated and Attempted Felonies. Art. 46. Penalty to be imposed upon principals
E.8. APPLICATION
in general.
The penalty prescribed by law for the commission of a felony shall be imposed upon the principals in the commission of such felony.
i. How to determine penalty to be imposed General rule: The penalty prescribed by law in general terms shall be imposed upon the principals for consummated felony.
Whenever the law prescribes a penalty for a felony in general terms, it shall be understood as applicable to the consummated felony.
Exception: The exception is when the penalty to be imposed upon the principal in frustrated or attempted felony is fixed by law.
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ATTEMPTED
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CONSUMMATED
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PRINCIPALS
0
1°
2°
ACCOMPLICES
1°
2°
3°
ACCESSORIES
2°
3°
4°
DIAGRAM OF THE APPLICATION OF ARTS. 50-57:
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PERIOD - one of the three equal portions called the minimum, medium and maximum of a divisible penalty.
Penalty imposed upon an accomplice General rule: An accomplice is punished by a penalty one degree lower than the penalty imposed upon the principal. Exceptions: The ascendants, guardians, curators, teachers and any person who, by abuse of authority or confidential relationship, shall cooperate as accomplices in the crimes of rape, acts of lasciviousness, seduction, corruption of minors, white slave trade or abduction. (Art. 346) One who furnished the place for the perpetration of the crime of slight illegal detention. (Art. 268) Penalty imposed upon an accessory GENERAL RULE: An accessory is punished by a penalty two degrees lower than the penalty imposed upon the principal.
“0” represents the penalty prescribed by law in defining a crime, which is to be imposed on the PRINCIPAL in a CONSUMMATED OFFENSE, in accordance with the provisions of Art. 46. The other figures represent the degrees to which the penalty must be lowered, to meet the different situations anticipated by law. Exceptions: Arts. 50 to 57 shall not apply to cases where the law expressly prescribes the penalty for frustrated or attempted felony, or to be imposed upon accomplices or accessories. (Art. 60). DEGREE - one entire penalty, one whole penalty or one unit of the penalties enumerated in the graduated scales provided for in Art. 71.
EXCEPTIONS: When accessory is punished as principal – knowingly concealing certain evil practices is ordinarily an act of the accessory, but in Art. 142, such act is punished as the act of the principal. When accessories are punished with a penalty one degree lower: o Knowingly using counterfeited seal or forged signature or stamp of the President (Art. 162). o Illegal possession and use of a false treasury or bank note (Art. 168). o Using falsified document (Art. 173 par.3) o Using falsified dispatch (Art. 173 par. 2)
Each of the penalties of reclusion perpetua, reclusion temporal, prision mayor, etc., enumerated in the graduated scales of Art. 71 is a degree. When there is a mitigating or aggravating circumstance, the penalty is lowered or increased by PERIOD only, Except when the penalty is divisible and there are two or more mitigating and without aggravating circumstances, in which case the penalty is lowered by degree. 108
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Art. 61. Rules for graduating penalties. For the purpose of graduating the penalties which, according to the provisions of Articles 50 to 57, inclusive, of this Code, are to be imposed upon persons guilty as principals of any frustrated or attempted felony, or as accomplices or accessories, the following rules shall be observed: (1) When the penalty prescribed for the felony is single and indivisible, the penalty next lower in degrees shall be that immediately following that indivisible penalty in the respective graduated scale prescribed in Article 71 of this Code. (2) When the penalty prescribed for the crime is composed of two indivisible penalties, or of one or more divisible penalties to be impose to their full extent, the penalty next lower in degree shall be that immediately following the lesser of the penalties prescribed in the respective graduated scale. (3) When the penalty prescribed for the crime is composed of one or two indivisible penalties and the maximum period of another divisible penalty, the penalty next lower in degree shall be composed of the medium and minimum periods of the proper divisible penalty and the maximum periods of the proper divisible penalty and the maximum period of that immediately following in said respective graduated scale. (4) When the penalty prescribed for the crime is composed of several periods, corresponding to different divisible penalties, the penalty next lower in degree shall be composed of the period immediately following the minimum prescribed and of the two next following, which shall be taken from the penalty prescribed, if possible; otherwise from the penalty immediately following in the above mentioned respective graduated scale. (5) When the law prescribes a penalty for a crime in some manner not especially provided for in the four preceding rules, the courts, proceeding by analogy, shall impose corresponding penalties upon those guilty as principals of the
CRIMINAL LAW frustrated felony, or of attempt to commit the same, and upon accomplices and accessories.
This article provides for the rules to be observed in lowering the penalty by one or two degrees: (1) For the principal in frustrated felony one degree lower; (2) For the principal in attempted felony two degrees lower; (3) For the accomplice in consummated felony one degree lower; and (4) For the accessory in consummated felony two degrees lower. The rules provided for in Art. 61 should also apply in determining the MINIMUM of the indeterminate penalty under the Indeterminate Sentence Law. The MINIMUM of the indeterminate penalty is within the range of the penalty next lower than that prescribed by the RPC for the offense. Those rules also apply in lowering the penalty by one or two degrees by reason of the presence of privileged mitigating circumstance (Arts. 68 and 69), or when the penalty is divisible and there are two or more mitigating circumstances (generic) and no aggravating circumstance (Art. 64). The lower penalty shall be taken from the graduated scale in Art. 71. The INDIVISIBLE PENALTIES are: (1) death (2) reclusion perpetua (3) public censure The DIVISIBLE PENALTIES are: (1) reclusion temporal (2) prision mayor (3) prision correccional (4) arresto mayor (5) destierro 109
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Prision Mayor
(6) arresto menor
The divisible penalties are divided into three periods: MINIMUM, MEDIUM AND THE MAXIMUM
penalty
immediately following it is reclusion temporal. Thus, reclusion temporal is the penalty next lower in degree.
The same rule shall be observed in lowering the penalty by one or two degrees. FOURTH RULE: When the penalty is composed
SECOND RULE (a): When the penalty is
of several periods. Ex. Prision Mayor in its MEDIUM period to Reclusion temporal in its MINIMUM period.
composed of two indivisible penalties Ex. reclusion perpetua to death The penalty immediately following the lesser of the penalties, which is reclusion perpetua, is reclusion temporal.
This rule contemplates a penalty composed of at least 3 periods. The several periods must correspond to different divisible penalties.
SECOND RULE (b): When the penalty is
Maximum Medium Minimum Penalty for Maximum principal in consummated Prision Medium felony Mayor Minimum Penalty for Maximum accomplice; principal Prision Medium frustrated felony Correccional Minimum
Reclusion temporal
composed of one or more divisible penalties to be imposed to their full extent Ex. prision correccional to prision mayor The penalty immediately following the lesser of the penalties of prision correccional to prision mayor is arresto mayor. THIRD RULE (a): When the penalty is composed
of two indivisible penalties and the maximum period of a divisible penalty Ex. reclusion temporal in its MAXIMUM period to death The MEDIUM and MINIMUM period of the divisible penalty and the MAXIMUM of that immediately following penalty is the penalty next lower in degree.
Reclusion Perpetua Reclusion Temporal
Maximum Medium Minimum Maximum
Medium Minimum
of one indivisible penalty and the maximum period of a divisible penalty. Ex. Reclusion temporal in its MAXIMUM period to Reclusion perpetua
indivisible. Ex. reclusion perpetua
Death
frustrated murder
THIRD RULE (b): When the penalty is composed
FIRST RULE: When the penalty is single and
The
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the the
the or in
FIFTH RULE (a): When the penalty has two
periods Ex. Prision correccional in its MINIMUM and MEDIUM periods
Penalty for the principal in consummated murder Penalty for accomplice; or for principal in
Prision correccional
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Maximum Medium The penalty prescribed for the Minimum felony Maximum The penalty next Medium lower Minimum
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(4) The same rule shall apply with respect to any aggravating circumstance inherent in the crime to such a degree that it must of necessity accompany the commission thereof. (5) Aggravating or mitigating circumstances which arise from the moral attributes of the offender, or from his private relations with the offended party, or from any other personal cause, shall only serve to aggravate or mitigate the liability of the principals, accomplices and accessories as to whom such circumstances are attendant. (6) The circumstances which consist in the material execution of the act, or in the means employed to accomplish it, shall serve to aggravate or mitigate the liability of those persons only who had knowledge of them at the time of the execution of the act or their cooperation therein. (7) Habitual delinquency shall have the following effects: a. Upon a third conviction the culprit shall be sentenced to the penalty provided by law for the last crime of which he be found guilty and to the additional penalty of prision correccional in its medium and maximum periods; b. Upon a fourth conviction, the culprit shall be sentenced to the penalty provided for the last crime of which he be found guilty and to the additional penalty of prision mayor in its minimum and medium periods; and c. Upon a fifth or additional conviction, the culprit shall be sentenced to the penalty provided for the last crime of which he be found guilty and to the additional penalty of prision mayor in its maximum period to reclusion temporal in its minimum period (8) Notwithstanding the provisions of this article, the total of the two penalties to be imposed upon the offender, in conformity herewith, shall in no case exceed 30 years. (9) For the purpose of this article, a person shall be deemed to be habitual delinquent, if within a period of ten years from the date of his release or last conviction of the crimes of serious or less serious physical injuries, robo, hurto, estafa or falsification, he is
FIFTH RULE (b): When the penalty has one
period. Ex. Prision Mayor in its MAXIMUM period If the penalty is any one of the three periods of a divisible penalty, the penalty next lower in degree shall be that period next following the given penalty. The penalty immediately inferior is prision mayor in its MEDIUM period. SIMPLIFIED RULES: The rules prescribed in pars. 4 and 5 of Art. 61 may be simplified as follows: (1) If the penalty prescribed by the Code consists in 3 periods, corresponding to different divisible penalties, the penalty next lower in degree is the penalty consisting in the 3 periods down in the scale. (2) If the penalty prescribed by the Code consists in 2 periods, the penalty next lower in degree is the penalty consisting in 2 periods down in the scale. (3) If the penalty prescribed by the Code consists in only 1 period, the penalty next lower in degree is the next period down in the scale.
iii. Effects of Mitigating and Aggravating Circumstances Art. 62. Effect of the attendance of mitigating or
aggravating circumstances and of habitual delinquency. Mitigating or aggravating circumstances and habitual delinquency shall be taken into account for the purpose of diminishing or increasing the penalty in conformity with the following rules: (3) Aggravating circumstances which in themselves constitute a crime specially punishable by law or which are included by the law in defining a crime and prescribing the penalty therefor shall not be taken into account for the purpose of increasing the penalty.
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found guilty of any of said crimes a third time or oftener.
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The law does not apply to crimes described in Art. 155.
Aggravating circumstances which are not considered for the purpose of increasing the penalty: (1) Those that constitute a separate crime punishable by law. (2) Those that are inherent in the crime committed: (3) Included by law in defining the crime (4) Inherent in the crime but of necessity they accompany the commission thereof
The imposition of the additional penalty on habitual delinquents are CONSTITUTIONAL because such law is neither an EX POST FACTO LAW nor an additional punishment for future crimes. It is simply a punishment on future crimes on account of the criminal propensities of the accused. The imposition of such additional penalties is mandatory and is not discretionary.
Aggravating or mitigating circumstances that serve to aggravate or mitigate the liability of the offender to whom such are attendant. These are those arising from: (1) Moral attributes of the offender (2) His private relations with the offended party (3) Any other personal cause (4) Aggravating or mitigating circumstances that affect the offenders only who had knowledge of them at the time of the execution of the act or their cooperation therein.
Habitual delinquency applies at any stage of the execution because subjectively, the offender reveals the same degree of depravity or perversity as the one who commits a consummated crime. It applies to all participants because it reveals persistence in them of the inclination to wrongdoing and of the perversity of character that led them to commit the previous crime. Cases where attending aggravating or mitigating circumstances are not considered in the imposition of penalties 1) Penalty that is single and indivisible 2) Felonies through negligence 3) When the penalty is a fine 4) When the penalty is prescribed by a special law.
What are the legal effects of habitual delinquency? Third conviction. The culprit is sentenced to the penalty for the crime committed and to the additional penalty of prision correccional in its medium and maximum period. Fourth conviction. The penalty is that provided by law for the last crime and the additional penalty of prision mayor in its minimum and medium periods. Fifth or additional conviction. The penalty is that provided by law for the last crime and the additional penalty of prision mayor in its maximum period to reclusion temporal in its minimum period.
Art. 63. Rules for the application of indivisible penalties.
In all cases in which the law prescribes a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed. In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be observed in the application thereof: 1. When in the commission of the
Notes: In no case shall the total of the 2 penalties imposed upon the offender exceed 30 years. 112
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deed there is present only one aggravating circumstance, the greater penalty shall be applied. 2. When there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall be applied. 3. When the commission of the act is attended by some mitigating circumstances and there is no aggravating circumstance, the lesser penalty shall be applied. 4. When both mitigating and aggravating circumstances attended the commission of the act, the court shall reasonably allow them to offset one another in consideration of their number and importance, for the purpose of applying the penalty in accordance with the preceding rules, according to the result of such compensation.
The penalty shall be applied regardless of the presence of mitigating or aggravating circumstances. Ex. reclusion perpetua or death
Rules for the application of indivisible penalties:
1. No aggravating and No mitigating: MEDIUM PERIOD 2. One mitigating: MINIMUM PERIOD Where the Penalty Is Not Composed of 3 Periods (Article 65) a. Compute and determine first the 3 periods of the entire penalty. b. The time included in the penalty prescribed should be divided into 3 equal portions, after subtracting the minimum (eliminate the 1 day) from the maximum of the penalty. c. The minimum of the minimum period should be the minimum of the given penalty (including the 1 day). d. The quotient should be added to the minimum prescribed (eliminate the 1 day) and the total will represent the maxium of the minimum period. the quotient to the minimum (eliminate the 1 day) of the medium period and the total will represent
2) Penalty is composed of 2 indivisible penalties a) One aggravating circumstance present: HIGHER penalty b) No mitigating circumstances present: LESSER penalty c) Some mitigating circumstances present and no aggravating: LESSER penalty d) Mitigating and aggravating circumstances offset each other a. Basis of penalty: number and importance. Rules for the application PENALTIES (Article 64)
1) Penalty is single and indivisible 3. One aggravating: (but regardless of the number of aggravating circumstances, the courts cannot exceed the penalty provided by law in its maximum period): MAXIMUM PERIOD 4. Mitigating and aggravating circumstances present: to offset each other according to relative weight 5. Two or more mitigating and no aggravating: one degree lower (has the effect of a privileged mitigating circumstance) NOTE: Art. 64 does not apply to: 1) indivisible penalties 2) penalties prescribed by special laws 3) fines 4) crimes committed by negligence
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the maximum of the Take the maximum of the medium period, add 1 day and make it the minimum of the maximum period; then add the quotient to the minimum (eliminate the 1 day) of the maximum period and the total will represent the maximum of the maximum period.
medium period. Penalty to be imposed if the requisites of accident (Art. 12 par 4) are not all present (Article 67): GRAVE FELONY: arresto mayor maximum period to prision correccional minimum period LESS GRAVE FELONY: arresto mayor minimum period and medium period
or exemption in the cases provided in Arts. 11 and 12 are present.
the document she had submitted to show that the money donated by PAGCOR was used and spent for lighting materials for her barangay.
People v. Lacanilao (1988):
Held:
Incomplete fulfillment of duty is a privileged mitigating circumstance which not only cannot be offset by aggravating circumstances but also reduces the penalty by one or two degrees than that prescribed by law. The governing provision is Art. 69 of the RPC.
Under Article 48 of the Revised Penal Code, a complex crime refers to: 1) the commission of at least two grave or less grave felonies that must both (or all) be the result of a single act, or 2) one offense must be a necessary means for committing the other (or others).
Penalty to be imposed when the crime committed is not wholly excusable (Article 69): One or two degrees lowe , if the majority of the conditions for justification
Special rules for certain situations 1.
Using the above guidelines, the acts cannot constitute a complex crime.
Complex Crimes
Specifically, the alleged actions showing falsification of a public and/or a commercial document were not necessary to commit estafa.
Art. 48. Penalty for complex crimes. — When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period.
Neither were the two crimes the result of a single act.
The rule for complex crimes is to impose the penalty for the most serious offense in its MAXIMUM period.
People v. Gonzalez (Supra) Held: The rules on the imposition of penalties for complex crimes under Art. 48 of the Revised Penal Code are not applicable in this case.
Monteverde v. People (2002) Monteverde was purportedly charged with the complex crime of estafa through falsification of a commercial document for allegedly falsifying
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another; in such a case, the penalty for the most serious offense shall be imposed in its maximum period.
People v. Velasquez (2000)
Considering that the offenses committed by the act of the appellant of firing a single shot are: one count of homicide, a grave felony, and two counts of slight physical injuries, a light felony, the rules on the imposition of penalties for complex crimes, which requires two or more grave and/or less grave felonies, will not apply.
Out of fear and not knowing that the gun that Velasquez was holding is a mere toy, Karen went with Velasquez.
Velasquez, poked a toy gun and forced Karen to go with her at his grandmother’s house.
Velasquez then raped Karen twice. The trial court convicted Velasquez of two counts of rape.
People v. Comadre (2004): The single act by appellant of detonating a hand grenade may quantitatively constitute a cluster of several separate and distinct offenses, yet these component criminal offenses should be considered only as a single crime in law on which a single penalty is imposed because the offender was impelled by a “single criminal impulse” which shows his lesser degree of perversity.
Held:
People v. Delos Santos (2001) Held:
Rape is the more serious of the two crimes and is punishable with reclusion perpetua under Article 266-A of the Revised Penal Code and since reclusion perpetua is a single indivisible penalty, it shall be imposed as it is.
Considering that Velasquez forcibly abducted Karen and then raped her twice, he should be convicted of the complex crime of forcible abduction with rape and simple rape. The penalty for complex crimes is the penalty for the most serious crime which shall be imposed in its maximum period.
Considering that the incident was not a product of a malicious intent but rather the result of a single act of reckless driving, Glenn should be held guilty of the complex crime of reckless imprudence resulting in multiple homicide with serious physical injuries and less serious physical injuries.
The subsequent rape committed by Velasquez can no longer be considered as a separate complex crime of forcible abduction with rape but only as a separate act of rape punishable by reclusion perpetua.
The slight physical injuries caused by Glenn to the ten other victims through reckless imprudence, would, had they been intentional, have constituted light felonies.
2.
Crimes Different from That Intended
Art. 49. Penalty to be imposed upon the principals when the crime committed is different from that intended. — In cases in
Being light felonies, which are not covered by Article 48, they should be treated and punished as separate offenses.
which the felony committed is different from that which the offender intended to commit, the following rules shall be observed:
Separate informations should have, therefore, been filed.
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to the offense which the accused intended to commit, the penalty corresponding to the latter shall be imposed in its maximum period.
and the degree of criminality shown by the offender, shall impose upon him the penalty of arresto mayor or a fine from 200 to 500 pesos.
2. If the penalty prescribed for the felony committed be lower than that corresponding to the one which the accused intended to commit, the penalty for the former shall be imposed in its maximum period.
Depending upon the social danger and the degree of criminality shown by the offender, the penalty for impossible crimes is arresto mayor or fine of P200-P500.
3. The rule established by the next preceding paragraph shall not be applicable if the acts committed by the guilty person shall also constitute an attempt or frustration of another crime, if the law prescribes a higher penalty for either of the latter offenses, in which case the penalty provided for the attempted or the frustrated crime shall be imposed in its maximum period.
4.
Plural Crimes (supra)
Additional Penalty for Certain Accessories Art. 58. Additional penalty to be imposed upon
certain accessories.
Those accessories falling within the terms of paragraphs 3 of Article 19 of this Code who should act with abuse of their public functions, shall suffer the additional penalty of absolute perpetual disqualification if the principal offender shall be guilty of a grave felony, and that of absolute temporary disqualification if he shall be guilty of a less grave felony.
Either the crime committed be more grave than the crime intended or the crime intended be more grave than the crime committed, the penalty to be imposed should be the penalty for the lesser felony in its MAXIMUM period.
Absolute perpetual disqualification if the principal offender is guilty of a grave felony.
Except: if the lesser felony constitutes an attempt or frustration of another felony.
Absolute temporary disqualification if the principal offender is guilty of a less grave felony.
Example: If the crime intended was homicide, but the crime committed was parricide, the penalty to be imposed is the penalty for homicide in its MAXIMUM period.
5.
Where the Offender Is Below 18 Years
Art. 68. Penalty to be imposed upon a person
under eighteen years of age. 3.
When the offender is a minor under eighteen years and his case is one coming under the provisions of the paragraphs next to the last of Article 80 of this Code, the following rules shall be observed:
Impossible Crimes
Art. 59. Penalty to be imposed in case of failure
to commit the crime because the means employed or the aims sought are impossible. —
When the person intending to commit an offense has already performed the acts for the execution of the same but nevertheless the crime was not produced by reason of the fact that the act intended was by its nature one of impossible accomplishment or because the means employed by such person are essentially inadequate to produce the result desired by him, the court, having in mind the social danger
1)
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Upon a person under fifteen but over nine years of age, who is not exempted from liability by reason of the court having declared that he acted with discernment, a discretionary penalty shall be imposed, but always lower by two degrees at least than that prescribed by law for the crime which he committed.
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the penalty being divisible, a minor over 15 but under 18 years old may still get a penalty two degrees lower.
2) Upon a person over fifteen and under eighteen years of age the penalty next lower than that prescribed by law shall be imposed, but always in the proper period.
Art. 68 provides for two of the PRIVILEGED MITIGATING CIRCUMSTANCES.
PD No. 603. ART. 192. Suspension of Sentence and Commitment of Youthful Offender.
Indeterminate Sentence Law (RA 4103, as amended)
If after hearing the evidence in the proper proceedings, the court should find that the youthful offender has committed the acts charged against him the court shall determine the imposable penalty, including any civil liability chargeable against him. However, instead of pronouncing judgment of conviction, the court shall suspend all further proceedings and shall commit such minor to the custody or care of the Department of Social Welfare, or to any training institution until he shall have reached twenty-one years of age or, for a shorter period as the court may deem proper, after considering the reports and recommendations of the Department of Social Welfare or the agency or responsible individual under whose care he has been committed.
The Indeterminate Sentence is composed of: 1. A MAXIMUM taken from the penalty imposable under the penal code (considering attendant circumstances) 2. A MINIMUM taken from the penalty next lower to that fixed in the code. It is indeterminate in the sense that after serving the minimum, the convict may be released on parole, or if he is not fitted for release, he shall continue serving his sentence until the end of the maximum. 1 Purpose of the law: To uplift and redeem valuable human material and prevent unnecessary and excessive deprivation of liberty and economic usefulness. It is necessary to consider the criminal first as an individual, and second as a member of the society. The law is intended to favor the defendant, particularly to shorten his term of imprisonment, depending upon his behavior and his physical, mental and moral record as a prisoner, to be determined by the Board of Indeterminate Sentence.
The youthful offender shall be subject to visitation and supervision by a representative of the Department of Social Welfare or any duly licensed agency or such other officer as the court may designate subject to such conditions as it may prescribe. Art. 68 applies to such minor if his application for suspension of sentence is disapproved or if while in the reformatory institution he becomes incorrigible in which case he shall be returned to the court for the imposition of the proper penalty.
The settled practice is to give the accused the benefit of the law even in crimes punishable with death or life imprisonment provided the resulting penalty, after considering the
If 9 to 15 years only with discernment: at least 2 degrees lower. If 15 to 18 years old: penalty next lower Except if the act is attended by two or more mitigating and no aggravating circumstance,
1
Revisiting ISLAW by Atty. Harold Huliganga. http://ca.judiciary.gov.ph/index.php?action=mnuactual_contents& ap=j90210&p=y
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attending circumstances, is reclusion temporal or less.
ISL: Coverage The law does not apply to certain offenders: 1. Those convicted of offenses punished with death penalty or life imprisonment 2. Those convicted of treason, conspiracy or proposal to commit treason 3. Those convicted of misprision of treason, rebellion, sedition or espionage 4. Those convicted of piracy 5. Those who are habitual delinquents (but applies to recidivists) 6. Those who shall have escaped from confinement or evaded service of sentence 7. Those who violated the terms of conditional pardon granted to them by the Chief Executive 8. Those whose maximum term of imprisonment does not exceed one year 9. Those who, upon the approval of the law, had been sentenced by final judgment 10. Those sentenced to the penalty of destierro or suspension
ISL: Application on the imposed sentence If the crime is punishable by a special law If the crime is a violation of a special law, ISL merely requires that the maximum term thereof shall not exceed the maximum fixed by the special law while the minimum shall not be less than the minimum prescribed therein. However, where the penalty in the special law adopts the technical nomenclature and signification of the penalties under the Revised Penal Code (RPC), such as “prision mayor”, “prision correccional maximum”, etc., the ascertainment of the indeterminate sentence will be based on the rule intended for those crimes punishable under the RPC.* If the crime is punishable by the Revised Penal Code 1.
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The maximum is determined in accordance with the rules and provisions of the RPC exactly as if the ISL had never been enacted.
On No. 6: A minor who escaped from confinement in the reformatory is entitled to the benefits of the ISL because his confinement is not considered imprisonment.
Factors to be considered: a. Penalty imposed for the crime b. Extent of participation of the accused (principal, accomplice, accessory) c. Stage of execution (consummated, frustrated, attempted) d. Attendance of mitigating or aggravating circumstances e. Entitlement of accused to a privileged mitigating circumstance
Inapplicability to offenses punished by reclusion pepetua
People v. Aquino (1998)
Persons convicted of offenses punishablewith reclusion perpetua cannot avail of the benefits of the Indeterminate Sentence Law.
People v. Saley (supra) Under the Indeterminate Sentence Law, a) the maximum term of the penalty shall be "that which, in view of the attending circumstances, could be properly imposed" under the Revised Penal Code, b) and the minimum shall be "within the range of the penalty next lower to that
2. The minimum depends upon the court’s discretion with the limitation that it must be within the range of the penalty next lower in degree to that prescribed by the Code for the offense committed.
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People v. Campuhan (supra):
prescribed" for the offense.
The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death for the offense charged, which is statutory rape of a minor below seven (7) years.
The penalty next lower should be based on the penalty prescribed by the Code for the offense, without first considering any modifying circumstance attendant to the commission of the crime.
Two (2) degrees lower is reclusion temporal, the range of which is twelve (12) years and one (1) day to twenty (20) years.
The determination of the minimum penalty is left by law to the sound discretion of the court and it can be anywhere within the range of the penalty next lower without any reference to the periods into which it might be subdivided.
Applying the Indeterminate Sentence Law, and in the absence of any mitigating or aggravating circumstance, the maximum of the penalty to be imposed upon the accused shall be taken from the medium period of reclusion temporal, the range of which is fourteen (14) years, eight (8) months and (1) day to seventeen (17) years and four (4) months, while the minimum shall be taken from the penalty next lower in degree, which is prision mayor, the range of which is from six (6) years and one (1) day to twelve (12) years, in any of its periods.
The modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence. The fact that the amounts involved in the instant case exceed P22,000.00 should not be considered in the initial determination of the indeterminate penalty;
ISL: Conditions of parole
instead, the matter should be so taken as analogous to modifying circumstances in the imposition of the maximum term of the full indeterminate sentence.
Section 6: Duty of the prisoner released under this Code: Report personally to such government officials or other parole officers appointed by the Board for a period of surveillance equivalent to the remaining portion of the maximum sentence imposed upon him or until final release by the Board. If it is shown that he is a law-abiding citizen and did not violate any laws of the country, the Board may issue a final certificate of release which will entitle him to final release and discharge.
This interpretation of the law accords with the rule that penal laws should be construed in favor of the accused. Since the penalty prescribed by law for the estafa charge against accused-appellant is prision correccional maximum to prision mayor minimum, the penalty next lower would then be prision correccional minimum to medium. Thus, the minimum term of the indeterminate sentence should be anywhere within six (6) months and one (1) day to four (4) years and two (2) months.
Section 8: Violations of the conditions of the parole: If he/she violates any of the conditions of the parole, the Board may issue his warrant of arrest. If captured/arrested, he shall serve the remaining unexpired portion of the maximum sentence for which he was originally committed unless a new parole was granted.
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Three-fold Rule
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In applying the provisions of this rule the duration of perpetual penalties shall be computed at thirty years. (As amended).
Art. 70. Successive service of sentence. When the culprit has to serve two or more penalties, he shall serve them simultaneously if the nature of the penalties will so permit otherwise, the following rules shall be observed:
Outline of the provisions of this Article: 1. When the culprit has to serve 2 or more penalties, he shall serve them simultaneously if the nature of the penalties will so permit. 2. Otherwise, the order of their respective severity shall be followed.
In the imposition of the penalties, the order of their respective severity shall be followed so that they may be executed successively or as nearly as may be possible, should a pardon have been granted as to the penalty or penalties first imposed, or should they have been served out.
In the Matter of the petition for Habeas Corpus of Pete Lagran (2001)
The accused was convicted of 3 counts of violating BP22 and was sentenced to imprisonment of 1 year for each count. He was detained on Feb. 24, 1999.
For the purpose of applying the provisions of the next preceding paragraph the respective severity of the penalties shall be determined in accordance with the following scale:
On Mar. 19, 2001, he filed a petition for habeas corpus claiming he completed the service of his sentence.
(1) Death, (2) Reclusion perpetua, (3) Reclusion temporal, (4) Prision mayor, (5) Prision correccional, (6) Arresto mayor, (7) Arresto menor, (8) Destierro, (9) Perpetual absolute disqualification, (10) Temporal absolute disqualification. (11) Suspension from public office, the right to vote and be voted for, the right to follow a profession or calling, and (12) Public censure
Citing Art. 70, RPC, he claimed that he shall serve the penalties simultaneously. Thus, there is no more legal basis for his detention.
Held:
Art. 70 allows simultaneous service of two or more penalties only if the nature of the penalties so permit. In the case at bar, the petitioner was sentenced to suffer one year imprisonment for every count of the offense committed.
Notwithstanding the provisions of the rule next preceding, the maximum duration of the convict's sentence shall not be more than threefold the length of time corresponding to the most severe of the penalties imposed upon him.
The nature of the sentence does not allow petitioner to serve all the terms simultaneously. The rule of successive service of sentence must be applied.
No other penalty to which he may be liable shall be inflicted after the sum total of those imposed equals the same maximum period.
The penalties which can be simultaneously served are: 1. Perpetual absolute disqualification 2. Perpetual special disqualification 3. Temporary absolute disqualification 4. Temporary special disqualification 5. Suspension
Such maximum period shall in no case exceed forty years.
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Destierro
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in the service of the same, they shall not exceed three times the most severe and shall not exceed 40 years.
Public Censure Fine and Bond to keep the peace Civil interdiction Confiscation and payment of costs
Mejorada v. Sandiganbayan (1987) The petitioner was convicted of violating Section 3(E) of RA No. 3019 aka the Anti-Graft and Corrupt Practices Act.
The above penalties, except destierro, can be served simultaneously with imprisonment. Penalties consisting in deprivation of liberty cannot be served simultaneously by reason of the nature of such penalties.
One of the issues raised by the petitioner concerns the penalty imposed by the Sandiganbayan which totals 56 years and 8 days of imprisonment.
Three-fold Rule: The maximum duration of the convict’s sentence shall not be more than three times the length of time corresponding to the most severe of the penalties imposed upon him.
He impugns this as contrary to the three-fold rule and insists that the duration of the aggregate penalties should not exceed 40 years.
The phrase “the most severe of the penalties” includes equal penalties.
Held: Petitioner is mistaken in his application of the 3fold rule as set forth in Art. 70 of the RPC.
The three-fold rule applies only when the convict has to serve at least four sentences.
This article is to be taken into account not in the imposition of the penalty but in connection with the service of the sentence imposed.
All the penalties, even if by different courts at different times, cannot exceed three-fold the most severe.
Art. 70 speaks of “service” of sentence, “duration” of penalty and penalty “to be inflicted”.
The Rules of Court specifically provide that any information must not charge more than one offense.
Nowhere in the article is anything mentioned about the “imposition of penalty”. It merely provides that the prisoner cannot be made to serve more than three times the most severe of these penalties the maximum which is 40 years.
Necessarily, the various offense punished with different penalties must be charged under different informations which may be filed in the same court or in different courts, at the same time or at different times. Subsidiary imprisonment forms part of the penalty.
Subsidiary Imprisonment
Art. 38. Pecuniary liabilities; Order of payment. Indemnity is a penalty.
— In case the property of the offender should not be sufficient for the payment of all his pecuniary liabilities, the same shall be met in the following order:
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1. The reparation of the damage caused. 2. Indemnification of consequential damages. 3. The fine. 4. The cost of the proceedings.
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5. The subsidiary personal liability which the convict may have suffered by reason of his insolvency shall not relieve him from the fine in case his financial circumstances should improve. (As amended by RA 10159, approved on April 10, 2012)
Art. 39. Subsidiary Penalty. – If the convict has no property with which to meet the fine mentioned in paragraph 3 of the next preceding article, he shall be subject to a subsidiary personal liability at the rate of one day for each amount equivalent to the highest minimum wage rate prevailing in the Philippines at the time of the rendition of judgment of conviction by the trial court, subject to the following rules:
Subsidiary penalty – it is personal liability to be suffered by the convict who has no property with which to meet the fine at the rate of one day for each amount equivalent to the highest minimum wage rate prevailing in the Philippines at the time of the rendition of judgment of conviction by the trial court, subject to the rules provided for in Article 39. An accused cannot be made to undergo subsidiary imprisonment in case of insolvency to pay the fine imposed upon him when the subsidiary imprisonment is not imposed in the judgment of conviction. (Ramos v.
1. If the principal penalty imposed be prision correctional or arresto and fine, he shall remain under confinement until his fine referred in the preceding paragraph is satisfied, but his subsidiary imprisonment shall not exceed onethird of the term of the sentence, and in no case shall it continue for more than one year, and no fraction or part of a day shall be counted against the prisoner.
Gonong)
2. When the principal penalty imposed be only a fine, the subsidiary imprisonment shall not exceed six months, if the culprit shall have been prosecuted for a grave or less grave felony, and shall not exceed fifteen days, if for a fight felony.
A convict who has property not exempt from execution sufficient enough to meet the fine cannot choose to serve the subsidiary penalty. Subsidiary imprisonment is not an accessory penalty.
E.9. EXECUTION AND SERVICE i. Execution of Penalties Art. 78. When and how a penalty is to be executed
3. When the principal penalty imposed is higher than prision correctional, no subsidiary imprisonment shall be imposed upon the culprit.
No penalty shall be executed except by virtue of a final judgment. A penalty shall not be executed in any other form than that prescribed by law, nor with any other circumstances or incidents than those expressly authorized thereby.
4. If the principal penalty imposed is not to be executed by confinement in a penal institution, but such penalty is of fixed duration, the convict, during the period of time established in the preceding rules, shall continue to suffer the same deprivations as those of which the principal penalty consists.
In addition to the provisions of the law, the special regulations prescribed for the government of the institutions in which the 122
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Destierro is imposed: When the death or serious physical injuries is caused or are inflicted under exceptional circumstances (Art. 247); When a person fails to give bond for good behavior (Art. 284); As a penalty for the concubine in the crime of concubinage (Art. 334); When after lowering the penalty by degrees, destierro is the proper penalty.
penalties are to be suffered shall be observed with regard to the character of the work to be performed, the time of its performance, and other incidents connected therewith, the relations of the convicts among themselves and other persons, the relief which they may receive, and their diet. The regulations shall make provision for the separation of the sexes in different institutions, or at least into different departments and also for the correction and reform of the convicts. The judgment must be final before it can be executed, because the accused may still appeal within 15 days from its promulgation. But if the defendant has expressly waived in writing his right to appeal, the judgment becomes final and executory.
ii. Service of the penalty of arresto menor Art. 88. Arresto menor. The penalty of arresto menor shall be served in the municipal jail, or in the house of the defendant himself under the surveillance of an officer of the law, when the court so provides in its decision, taking into consideration the health of the offender and other reasons which may seem satisfactory to it.
iii. Suspension of Execution
Art. 86. Reclusion perpetua, reclusion temporal, prision mayor, prision correccional and arresto mayor.
Probation Law (PD 968, as amended)
The penalties of reclusion perpetua, reclusion temporal, prision mayor, prision correccional and arresto mayor, shall be executed and served in the places and penal establishments provided by the Administrative Code in force or which may be provided by law in the future.
a. Definition of terms (Sec. 3) Probation – a disposition under which a defendant, after conviction and sentence, is released subject to conditions imposed by the court and to the supervision of a probation officer.
Art. 87. Destierro.
Any person sentenced to destierro shall not be permitted to enter the place or places designated in the sentence, nor within the radius therein specified, which shall be not more than 250 and not less than 25 kilometers from the place designated.
Probationer – a person placed on probation Probation officer – one who investigates for the court a referral for probation or supervises a probationer or both a. Purpose (Sec. 2)
Convict shall not be permitted to enter the place designated in the sentence nor within the radius specified, which shall not be more than 250 and not less than 25 km from the place designated. If the convict enters the prohibited area, he commits evasion of sentence.
1.
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3.
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Llamado v. CA (1989):
Provide an opportunity for the reformation of a penitent offender which might be less probable if he were to serve a prison sentence Prevent the commission of offenses
In its present form, Section 4 of the Probation Law establishes a much narrower period during which an application for probation may be filed with the trial court: “after the trial court shall have convicted and sentenced a defendant and – within the period for perfecting an appeal”.
Probation does not obliterate the crime for which the person has been convicted. Office of the Court Administrator v. Librado (1996): Unlike pardon, probation does not obliterate the crime of which the person under probation has been convicted.
The provision expressly prohibits the grant of an application for probation if the defendant has perfected an appeal from the judgment of conviction. Petitioner’s right to apply for probation was lost when he perfected his appeal from the judgment of the trial court.
The image of the judiciary is tarnished by conduct involving moral turpitude. The reform and rehabilitation of the probationer cannot justify his retention in the government service.
The trial court lost jurisdiction already over the case. The law does not allow simultaneous filing of application for probation and appeal. The filing of application for probation shall be deemed a waiver of the right to appeal, and vice-versa.
b. Grant of probation, manner and conditions (Sec. 4) Grant of probation Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant and upon application by said defendant within the period for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best: Provided, That no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction. Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An application for probation shall be filed with the trial court. The filing of the application shall be deemed a waiver of the right to appeal. An order granting or denying probation shall not be appealable.
Francisco v. CA
The Probation Law requires that an accused must not have appealed his conviction before he can avail himself of probation. However,
Lagrosa vs. People (2003): A person who appeals his conviction for purposes of reducing the penalty to that which is within the probationable limit may still apply for probation. A person who appeals a judgment of conviction, when he did not have the option to apply for probation in the first place, is not deemed to have forfeited his right to apply for probation. There was no right to forteit yet.
Colinares v. People (2011) 124
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(11) Satisfy any other condition related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience.
Accused appealed an erroneous conviction (frustrated homicide; not probationable). SC found him guilty of a lesser crime (attempted homicide; probationable). He cannot be barred from applying for probation by the fact that he already appealed.
Note: These are the special or discretionary conditions.
Conditions of probation (Sec. 10) Every probation order issued by the court shall contain conditions requiring that the probationer shall: a) Present himself to the probation officer designated to undertake his supervision at such place as may be specified in the order within 72 hours from receipt of the order; b) Report to the probation officer at least once a month at such time and place as specified by said officer.
Sec. 10 is not inclusive.
The court may also require the probationer to: (1) Cooperate with a program of supervision; (2) Meet his family responsibilities; (3) Devote himself to a specific employment and not to change said employment without the prior written approval of the probation officer; (4) Undergo medical, psychological or psychiatric examination and treatment and enter and remain in a specified institution, when required for that purpose; (5) Pursue a prescribed secular study or vocational training; (6) Attend or reside in a facility established for instruction, recreation or residence of persons on probation; (7) Refrain from visiting houses of illrepute; (8) Abstain from drinking intoxicating beverages to excess; (9) Permit the probation officer or an authorized social worker to visit his home and place of work; (10) Reside at premises approved by it and not to change his residence without its prior written approval; or
The order of probation providing as one of the conditions that the civil liability be paid on a monthly basis (P2000/mo) did not increase or decrease the civil liability adjudged. It merely provided for the manner of payment by the accused of his civil liability during the period of probation.
Salgado v. CA (1990) The conditions enumerated under Sec. 10 of the Probation Law are not inclusive. Courts are allowed to impose practically any term it chooses, the only limitation being that it does not jeopardize the constitutional rights of the accused. Sec. 4. “the trial court may… place the defendant on probation for such period and upon such terms and conditions as it may deem best.”
Note: These are the mandatory conditons.
c. Criteria of placing an offender on probation (Sec. 8) In considering whether an offender may be placed on probation, the court shall consider all information relative to the: 1. character, 2. antecedents, 3. environment, 4. mental, and 5. physical condition of the offender 6. available institutional and community resources While application for probation is a right, probation itself is a privilege. Grant of probation may be denied if the court finds that: 125
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1.
The offender is in need of correctional treatment that can be provided most effectively by his commitment to an institution. 2. There is undue risk that during the probation, the offender will commit another crime. 3. Probation will depreciate the seriousness of the offense committed.
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Probation is an alternative to imprisonment of a juvenile. Sec. 42 of RA 9344 (Juvenile Justice and Welfare Act) states that: The court may, after it shall have convicted and sentenced a child in conflict with law, and upon application at any time, place the child under probation in lieu of service of his/her sentence taking into account the best interest of the child.
d. Disqualified offenders e. Period of probation (Sec. 14) Probation under PD No. 968, as amended, is intended for offenders who are 18 years of age and above, and who are not otherwise disqualified by law.
1.
If the convict is sentenced to imprisonment of not more than one year, probation shall not exceed two years. 2. If s/he is sentenced to more than one year, probation shall not exceed six years. 3. If s/he is sentenced to a fine only and s/he is made to suffer subsidiary imprisonment, probation shall be not less than nor more
Offenders who are disqualified are those: (1) Sentenced to serve a maximum term of imprisonment of more than six years; (2) Convicted of subversion or any offense against the security of the State, or the Public Order; (3) Who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one month and one day and/or a fine of not more than Two Hundred Pesos; (4) Who have been once on probation under the provisions of this Decree; and (5) Who are already serving sentence at the time the substantive provisions of PD 968 became applicable pursuant to Sec. 33 hereof (Effectivity clause: PD 968’s substantive provisions took effect on 3 January 1978)
than twice the total days of subsidiary imprisonment. f.
Arrest of probationer (Sec. 15)
At any time during probation, the court may issue a warrant for the arrest of a probationer for any serious violation of the conditions of probation. The probationer, once arrested and detained, shall immediately be brought before the court for a hearing of the violation charged. The defendant may be admitted to bail pending such hearing. In such case, the provisions regarding release on bail of persons charged with a crime shall be applicable to probationers arrested under this provision.
The Probation Law does not apply to Drug Traffickers and Pushers. Sec. 24 of RA 9165 (The Comprehensive Dangerous Drugs Act) states that:
In the hearing, which shall be summary in nature, the probationer shall have the right to be informed of the violation charged and to adduce evidence in his favor. The court shall not be bound by the technical rules of evidence but may inform itself of all the facts which are material and relevant to ascertain the veracity
Any person convicted for drug trafficking or pushing under this Act, regardless of the penalty imposed by the Court, cannot avail of the privilege granted by the Probation Law or Presidential Decree No. 968, as amended. 126
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iv. Suspension of the execution and service of the penalties in case of insanity Art. 79. When a convict shall become insane or
of the charge. The State shall be represented by a prosecuting officer in any contested hearing. If the violation is established, the court may revoke or continue his probation and modify the conditions thereof. If revoked, the court shall order the probationer to serve the sentence originally imposed. An order revoking the grant of probation or modifying the terms and conditions thereof shall not be appealable.
an imbecile after final sentence has been pronounced, the execution of said sentence shall be suspended only with regard to the personal penalty, the provisions of the second paragraph of circumstance number 1 of Article 12 being observed in the corresponding cases.
g. Termination of probation (Sec. 16)
If at any time the convict shall recover his reason, his sentence shall be executed, unless the penalty shall have prescribed in accordance with the provisions of this Code.
After the period of probation and upon consideration of the report and recommendation of the probation officer, the court may order the final discharge of the probationer upon finding that he has fulfilled the terms and conditions of his probation and thereupon, the case is deemed terminated.
The respective provisions of this section shall also be observed if the insanity or imbecility occurs while the convict is serving his sentence. An accused may become insane: 1. At the time of commission of the crime He is exempt from criminal liability (Art. 12 par. 1) 2. At the time of the trial - The Court shall suspend the proceedings and order his confinement in a hospital until he recovers his reason. 3. At the time of final judgment or while serving sentence
The final discharge of the probationer shall operate to restore to him all civil rights lost or suspended as a result of his conviction and to fully discharge his liability for any fine imposed as to the offense for which probation was granted. The probationer and the probation officer shall each be furnished with a copy of such order. The expiration of the probation period alone does not automatically terminate probation. Probation is not coterminous with its period. There must first be issued by the court, an order of final discharge based on the report and recommendation of the probation officer. Only from such issuance can the case of the probationer be deemed terminated. [Bala v. Martinez]
Execution is suspended with regard to the personal penalty only. If he recovers his reason, his sentence shall be executed, unless the penalty has prescribed. Payment of his civil or pecuniary liabilities shall not be suspended. Minority (Art. 80 of the RPC has been repealed by PD 603, as amended, and RA 9344) Juvenile Justice and Welfare Act of 2006 (RA 9344); Child and Youth Welfare Code (PD 603, as amended) See also discussion of RA 9344 under Exempting Circumstances 127
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discernment) Definition of child in conflict with the law (Sec. 4) Discernment PD 603 (Secs. 189 & 192) Child over 9 years and under 15 years of age who acted w/ discernment – court shall determine imposable penalty, including any civil liability chargeable against him.
Child in conflict with the law – A child who is alleged as, accused of, or adjudged as, having committed an offense under Philippine laws Child – a person under 18 years a. Exemption from criminal liability 1. Child 15 years of age or under at the time of the commission of the offense = EXEMPT from criminal liability However, the child shall be subjected to an intervention program (per Sec. 20 of RA 9344) 2. Child above 15 years but below 18 years of age (15 ≤ Age of child at time of commission of offense ≤ 18) = EXEMPT from criminal liability and subjected to intervention program UNLESS the child acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with RA 9344
RA 9344 Child above 15 years but below 18 years of age who acted with discernment shall be subjected to the appropriate proceedings in accordance with the Act.
However, instead of pronouncing judgment of conviction, the court, upon application of the youthful offender and if it finds that the best interest of the public as well as that of the offender will be served thereby, may suspend all further proceedings and shall commit such minor to the custody or care of the DSWD or to any training institution operated by the government, or duly licensed agencies or any other responsible person, until he shall have reached 21 years of age or, for a shorter period as the court may deem proper.
Exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws. (Sec. 6, RA 9344) RA 9344 compared to PD 603 Minimum age of criminal responsibility PD 603 RA 9344 Sec. 189. EXEMPT Child 15 years of age from criminal liability: or under shall be 1. Child 9 years of age exempt from criminal or under at time of liability, regardless of commission of offense whether or not s/he with 2. 9 ≤ Age of child at acted time of commission of discernment offense ≤ 15 (UNLESS s/he acted with
Suspension of sentence PD 603 (Sec. 193) RA 9344 128
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No automatic Suspension suspension of sentence sentence. automatic. The youthful offender should apply for a suspended sentence and it is discretionary on the court to approve the application. The order of the court denying an application for suspension of sentence shall not be appealable.
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Diversion – refers to an alternative, childappropriate process of determining the responsibility and treatment of a child in conflict with the law on the basis of his/her social, cultural, economic, psychological, or educational background without resulting to formal court proceedings.
of is
Once the child under 18 is found guilty of the offense charged, the court shall determine and ascertain any civil liability. However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with law under suspended sentence, without need of application.
Diversion Program – refers to the program that the child in conflict with the law is required to undergo after he/she is found responsible for an offense without resorting to formal court proceedings. [Sec. 4(j), RA 9344] Development of a Comprehensive Juvenile Intervention Program (1) A Comprehensive juvenile intervention program covering at least a 3-year period shall be instituted in LGUs from the barangay to the provincial level. (2) The LGUs shall set aside an amount necessary to implement their respective juvenile intervention programs in their annual budget. (3) The LGUs, in coordination with the LCPC, shall call on all sectors concerned, particularly the child-focused institutions, NGOs, people's organizations, educational institutions and government agencies involved in delinquency prevention to participate in the planning process and implementation of juvenile intervention programs. Such programs shall be implemented consistent with the national program formulated and designed by the JJWC. The implementation of the comprehensive juvenile intervention program shall be reviewed and assessed annually by the LGUs in coordination with the LCPC. Results of the assessment shall be submitted by the provincial and city governments to the JJWC not later than March 30 of every year. [Sec. 18, RA9344]
Suspension of sentence shall be applied even if the juvenile is already 18 years of age or more at the time of the pronouncement of his/her guilt. (Sec. 38, RA 9344) The suspension of sentence lasts only until the child in conflict with law reaches the maximum age of 21. Juvenile Justice and Welfare System Juvenile Justice and Welfare System – refers to a system dealing with children at risk and children in conflict with the law, which provides child-appropriate proceedings, including programs and services for prevention, diversion, rehabilitation, re-integration and aftercare to ensure their normal growth and development. [Sec. 4(m), RA 9344]
Community-based Programs on Juvenile Justice and Welfare Community-based programs on juvenile justice and welfare shall be instituted by the LGUs 129
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through the LCPC, school, youth organizations and other concerned agencies. The LGUs shall provide community-based services which respond to the special needs, problems, interests and concerns of children and which offer appropriate counselling and guidance to them and their families. These programs shall consist of three levels:
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and his/her parents or guardians for the development of the appropriate diversion and rehabilitation program, in coordination with the BCPC; (c) Where the imposable penalty for the crime committed exceeds six (6) years imprisonment, diversion measures may be resorted to only by the court. [Sec. 23, RA 9344]
(a) Primary intervention includes general measures to promote social justice and equal opportunity, which tackle perceived root causes of offending; (b) Secondary intervention includes measures to assist children at risk; and (c) Tertiary intervention includes measures to avoid unnecessary contact with the formal justice system and other measures to prevent re-offending. [Sec. 19, RA 9344]
F. Modification and Extinction of Criminal Liability Two kinds of extinguishment of criminal liability: A. Total Extinguishment 1. By prescription of crime 2. By prescription of penalty 3. By the death of the convict 4. By service of sentence 5. By amnesty 6. By absolute pardon 7. By the marriage of the offended woman and the offender in the crimes of rape, abduction, seduction and acts of lasciviousness. (Art. 344)
System of Diversion Children in conflict with the law shall undergo diversion programs without undergoing court proceedings subject to the conditions herein provided: (a) Where the imposable penalty for the crime committed is not more than six (6) years imprisonment, the law enforcement officer or Punong Barangay with the assistance of the local social welfare and development officer or other members of the LCPC shall conduct mediation, family conferencing and conciliation and, where appropriate, adopt indigenous modes of conflict resolution in accordance with the best interest of the child with a view to accomplishing the objectives of restorative justice and the formulation of a diversion program. The child and his/her family shall be present in these activities.
B. Partial Extinguishment 1. By conditional pardon 2. By commutation of sentence 3. For good conduct, allowances which the culprit may earn while he is serving sentence 4. By parole 5. By probation Important: The Supreme Court ruled that reelection to public office is not one of the grounds by which criminal liability is extinguished. This is only true in administrative cases but not in criminal cases.
(b) In victimless crimes where the imposable penalty is not more than six (6) years imprisonment, the local social welfare and development officer shall meet with the child
F.1. Prescription of Crimes; Prescription of Violations of Special Laws (Act No. 3326) 130
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Definition: The forfeiture or loss of the right of the State to prosecute the offender, after the lapse of a certain period of time.
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Prescriptive periods under special laws and municipal ordinances (Act 3763, amending Act 3326) Offenses punished only by fine or imprisonment for not more than 1 year one month or both Imprisonment for more than one 4 years month, but less than two years Imprisonment for two years but 8 years less than six years Imprisonment for six years or 12 years more Offenses under Internal Revenue 5 years Law Violations of municipal 2 ordinances months Violations of the regulations or conditions of certificate of 2 convenience by the Public Service months Commission
General rule: Prescription of the crime begins on the day the crime was committed. Exception: The crime was concealed, not public, in which case, the prescription thereof would only commence from the time the offended party or the government learns of the commission of the crime.
i. Prescriptive Periods of Crimes 1.
Crimes punishable by death, reclusion perpetua 20 years or reclusion temporal 2. Afflictive penalties 15 years 10 years 5 years 3. Correctional penalties Note: Those punishable by arresto The mayor highest penalty Note: When the penalty fixed law shall be is a compound one made a basis 4. Libel 1 year 5. Oral defamation and 6 months slander by deed 6. Simple slander 2 months 7. Grave slander 6 months 8. Light offenses 2 months 9. Crimes punishable by fines a) Fine is afflictive 15 years b) Fine is correctional 10 years c) Fine is light 2 months Note: Subsidiary penalty for nonpayment not considered in determining the period Note: When fine is an alternative penalty higher than the other penalty which is by imprisonment, prescription of the crime is based on the fine.
Note: Not applicable where the special law provides for its own prescriptive period Computation of Prescription of Offenses (Art. 91) 1. Commences to run from the day on which the crime is discovered by the offended party, the authorities or their agents. 2. Interrupted by the filing of complaint or information 3. It shall commence to run again when such proceedings terminate without the accused being convicted or acquitted, or unjustifiably stopped for any reason not imputable to the accused. Note: Termination must be FINAL as to amount to a jeopardy that would bar a subsequent prosecution. 4. The term of prescription shall not run when the offender is absent
from the Philippine archipelago. 5. For continuing crimes, prescriptive period cannot begin to run because the crime does not end.
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ii. Prescription of penalties
Articles 93 and 157 of the RPC means unlawful departure of prisoner from the limits of his custody. Clearly, one who has not been committed to prison cannot be said to have escaped therefrom.
Definition: The loss or forfeiture of the right of the government to execute the final sentence after the lapse of a certain period of time. Difference between Prescription of Crime and Prescription of the Penalty
Prescription of crime
Prescription penalty
Forfeiture of the right of the State to prosecute after a lapse of a certain time
Forfeiture of the right to execute the final sentence after the lapse of a certain time
Prescriptive Periods of Penalties Death and reclusion perpetua Other afflictive penalties Correctional penalties Note: If arresto mayor Light penalties
iii. Computation Penalties (Art. 93)
of
of
Prescription is interrupted when: The convict gives himself up. The convict Is captured. The convict goes to a foreign country with which the Philippines has no extradition treaty. The convict commits any crime before the expiration of the period of prescription.
the
20 years 15 years 10 years 5 years 1 year
Prescription
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Question: What happens in cases where our government has extradition treaty with another country but the crime is not included in the treaty? Answer: It would interrupt the running of the prescriptive period.
of
Question: What is the effect of the acceptance of the convict of a conditional pardon? Answer: It would interrupt the running of the prescriptive period.
Elements: 1. Penalty is imposed by final judgment 2. Convict evaded service of sentence by escaping during the term of his sentence 3. The convict who has escaped from prison has not given himself up, or been captured, or gone to a foreign country with which we have no extradition treaty, or committed another crime 4. The penalty has prescribed because of the lapse of time from the date of the evasion of service of the sentence by the convict.
Question: What happens if the culprit is captured but he evades again the service of his sentence? Answer: The period of prescription that ran during the evasion is not forfeited. The period of prescription that has run in his favor should be taken into account.
F.2. Pardon by Offended Party Art. 23. Effect of pardon by the offended party. — A pardon of the offended party does not extinguish criminal action except as provided in Article 344 of this Code; but civil liability with regard to the interest of the injured party is extinguished by his express waiver.
Period commences to run from the date when the culprit evaded the service of sentence.
Del Castillo v. Torrecampo (2002) "Escape" in legal parlance and for purposes of 132
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This article states the extent of a pardon made by the offended party. Under this article, a pardon does not extinguish the criminal liability of an offender except for cases under Article 344 (Prosecution of the crimes of adultery,
Conditional pardon is limited to the unserved portion of the sentence, unless an intention to extend it beyond that time is manifest. (Infante v. Wardern)
concubinage, seduction, abduction, rape and acts of lasciviousness).
The third preambular phrase of a pardon, i.e., " "[w]hereas, Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office, does not make the pardon conditional x x x as the pardon itself does not explicitly impose a condition or limitation, considering the unqualified use of the term "civil and political rights" as being restored. Jurisprudence educates that a preamble is not an essential part of an act as it is an introductory or preparatory clause that explains the reasons for the enactment. [Risos-Vidal v. COMELEC (2015), J. Leonardo-De Castro)
However, the civil liability with regard to the interest of the injured party is extinguished.
F.3. Pardon by the Chief Executive
i. Absolute Pardon It is an act of grace, proceeding from the power entrusted with the execution of the laws. It exempts the individual from the penalty of the crime he has committed.
iii. Effects of Pardon of the President (Article 36)
Monsanto v Factoran (1989): 1. Absolute pardon does not ipso facto entitle the convict to reinstatement to the public office forfeited by reason of his conviction. 2. Although pardon restores his eligibility for appointment to that office, the pardoned convict must reapply for a new appointment.
1.
A pardon shall not restore the right to hold public office or the right of suffrage.
Exception: When any or both such rights is or are expressly restored by the terms of the pardon.
ii. Conditional Pardon
2. It shall not exempt the culprit from the payment of the civil indemnity. The pardon cannot make an exception to this rule.
If delivered and accepted, it is a contract between the executive and the convict that the former will release the latter upon compliance with the condition. One usual condition is “not again violate any of the penal laws of the country”. Obligations incurred by a person granted conditional pardon: 1. He must comply strictly with the conditions imposed in the pardon. 2. Failure to comply shall result to a recovation of the pardon. The Chief Executive may order his arrest and reincarceration. 3. He becomes liable under Art. 159.
iv. Limitations upon the exercise of pardoning power 1.
That the power can be exercised only after conviction. a. Thus in applying for pardon, the convict must not appeal the judgment of conviction or the appeal must be abandoned. 2. That such power does not extend to cases of impeachment. (Cristobal v. Labrador). NOTE: The pardoning power of the President cannot be limited by legislative action. Article 133
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36-41 only operates as a procedural proscription. (Risos-Vidal v. COMELEC)
AMNESTY Blanket pardon to classes of persons guilty of political offenses May still be exercised before trial or investigation Looks backward. It is as if he has committed no offense.
Pardon by the Chief Executive Extinguishes the criminal liability of the offender.
Pardon by the offended party Does not extinguish criminal liability. Although it may constitute a bar to the prosecution of the: (1) crimes of seduction, abduction and acts of lasciviousness; and (2) in adultery and concubinage, by the express or implied pardon by the offended spouse. Cannot include civil The offended party liabilities which the can waive the civil offender must pay. liability which the offender must pay. Conditional or Cannot be conditional Absolute Granted only after the Pardon should be conviction. given before the institution of criminal prosecution.
CRIMINAL LAW ABSOLUTE PARDON Includes any crime and is exercised individually The person is already convicted
Looks forward. He is relieved from the consequences of the offense, but rights are not restored unless explicitly provided by the terms of the pardon. Both do not extinguish civil liability. Public act which the Private act of the court shall take President and must be judicial notice of pleaded and proved by the person pardoned Valid only when there Valid if given either is final judgment before or after final judgment The effects of amnesty as well as absolute pardon are not the same. Amnesty erases not only the conviction but also the crime itself. An offender who was convicted of rebellion, given an amnesty, and who subsequently rebelled and was convicted again is not a recidivist. He is not a recidivist because the amnesty granted to him erased not only the conviction but also the effects of the conviction itself.
F.3. Amnesty An act of the sovereign power granting oblivion or general pardon for a past offense. Rarely exercised in favor of a single individual; usually extended in behalf of certain classes of persons who are subject to trial but have not yet been convicted.
Suppose, instead of amnesty, what was given was absolute pardon, then years later, the offender was again captured and charged for rebellion, he was convicted, is he a recidivist? Yes. Pardon, although absolute, does not erase the effects of conviction. Pardon only excuses the convict from serving the sentence.
Erases not only the conviction but the crime itself. Difference between Amnesty and Absolute Pardon 134
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When pardon may erase the effects of conviction: When the pardon was granted when the convict had already served the sentence such that there is no more service of sentence to be executed. The pardon then shall be understood as intended to erase the effects of the conviction. So if the convict has already served the sentence and in spite of that he was given a pardon, that pardon will cover the effects of the crime. Therefore, if he will be subsequently convicted for a felony embracing the same title as that crime, he cannot be considered a recidivist, because the pardon wipes out the effects of the crime. But if he was serving sentence when he was pardoned, that pardon will not wipe out the effects of the crime, unless the language of the pardon absolutely relieves the offender of all the effects thereof. Considering that recidivism does not prescribe, no matter how long ago was the first conviction, he shall still be a recidivist.
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I. Crimes against National Security II. Crimes against Fundamental Laws of the State III. Crimes against Public Order IV. Crimes against Public Interest V. Crimes relative to Opium and other Prohibited Drugs VI. Crimes against Public Morals VII. Crimes committed by Public Officers VIII. Crimes against Persons IX. Crimes against Personal Liberty and Security X. Crimes against Property XI. Crimes against Chastity XII. Crimes against Civil Status XIII. Crimes against Honor XIV. Criminal Negligence
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The crimes under this title can be prosecuted even if the criminal act or acts were committed outside the Philippine territorial jurisdiction. This is one of the instances where the RPC may be given extra-territorial application under Article 2 (5) thereof. However, prosecution can proceed only if the offender is: (1) within Philippine territory, or (2) brought to the Philippines pursuant to an extradition treaty. Crimes against national security can be tried only in the Philippines, as there is a need to bring the offender here before he can be made to suffer the consequences of the law. In the case of crimes against the law of nations, the offender can be prosecuted wherever he may be found because the crimes are regarded as committed against humanity in general.
Title I. Crimes against National Security and the Law of Nations
The acts against national security may be committed abroad and still be punishable under our law.
Crimes against Security: (1) Art. 114: Treason (2) Art. 115: Conspiracy and Proposal to Commit Treason (3) Art. 116: Misprision of Treason (4) Art. 117: Espionage
General rule: Almost all of these are crimes committed in times of war. Exceptions: The following can be committed in times of peace: (1) Espionage [Art 117] – This is also covered by Commonwealth Act No. 616 which punishes conspiracy to commit espionage. (2) Inciting to War or Giving Motives for Reprisals [Art 118] – This can be committed even if the Philippines is not a participant. (3) Violation of Neutrality [Art. 119] – The Philippines is not a party to an on-going war.
Crimes against The Law of Nations (1) Art. 118: Inciting to War or Giving Motives for Reprisals (2) Art. 119: Violation of Neutrality (3) Art. 120: Correspondence with Hostile Country (4) Art. 121: Flight to Enemy’s Country (5) Art. 122: Piracy in General and Mutiny on the High Seas or in Philippine Waters (6) Art. 123: Qualified Piracy
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AGAINST
ARTICLE 114 - TREASON 137
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Mode 1: Levying War Elements: (a) Offender is a Filipino or resident alien (b) There is a war in which the Philippines is involved (c) The offender levies war against the government
Mode 1: Levying War Requirements: (1) actual assembling of men; (2) for the purpose of executing a treasonable design by force. There must be an actual assembling of men. The mere acceptance of the commission from the secretary of war of the Katipunan by the accused, nothing else having been done, was not an overt act of treason within the meaning of the law. [U.S. vs. De los Reyes]
Mode 2: Adherence to the Enemy and Giving of Aid or Comfort Elements: (a) Offender is a Filipino or resident alien (b) There is a war in which the Philippines is involved (c) That the offender adheres to the enemies, giving them aid or comfort
The levying of war must be directed against the government. It must be with intent to overthrow the government as such, not merely to resist a particular statute or to repel a particular officer. [Reyes, 2012, citing 3 Wharton’s Criminal Law, 12th Ed.]
Treason is a breach of allegiance to a government, committed by a person who owes allegiance to it. It cannot be committed in the time of peace. There are two ways of committing treason: (1) By levying war against the Government; and (2) By adhering to the enemies of the Philippines, giving them aid or comfort. [Reyes, 2012]
The levying of war must be in collaboration with a foreign enemy. If the levying of war is merely a civil uprising, without any intention of helping an external enemy, the crime is not treason. The offenders may be held liable for rebellion under Article 135 in relation to Article 134 of the RPC. [Reyes, 2012]
Allegiance - obligation of fidelity and obedience which the individuals owe to the government under which they live or to their sovereign, in return for the protection they receive [Reyes, 2012; citing 52 Am. Jur. 797]
Mode 2: Adherence to the Enemy Adherence and giving aid or comfort to the enemy must concur. Adherence to the enemy means intent to betray. There is adherence to the enemy when a citizen intellectually or emotionally favors the enemy and harbors sympathies or convictions disloyal to his own country’s policy or interest. Aid or comfort means an act which strengthens or tends to strengthen the enemy in the conduct of war against the traitor’s country and an act which weakens or tends to weaken the power of the traitor’s country to resist or to attack the enemy. [Cramer vs. US]
Extent of Aid or Comfort To be treasonous, the extent of aid and comfort given to the enemies must be to render assistance to them as enemies and not as individuals, in the furtherance of the enemies’ hostile designs. [People vs. Perez] Intent of disloyalty is a vital crime of treason, which in admission may be gathered and circumstances of each [People vs. Perez]
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ingredient in the the absence of from the nature particular case.
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When there is no adherence to the enemy, the act which may do aid or comfort to the enemy does not amount to treason. [Reyes, 2012]
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official duties under the enemy [People vs. Sison] The overt act of aid and comfort to the enemy must be intentional, as distinguished from merely negligent or undesigned ones. [Cramer vs. US]
Specific Acts of Aid or Comfort Constituting Treason (1) Serving as informer and active member of the Japanese Military Police, arresting guerilla suspects to suppress the underground movement [People vs. Fernando] (2) Serving in the Japanese Army as agent or spy and participating in the raid of guerrilla hideout [People vs. Muñoz, et al.] (3) Acting as “finger woman” when a barrio was “zonified” by the Japanese, pointing out to the Japanese several men whom she accused as guerrillas [People vs. Nuñez] (4) Taking active part in the mass killing of civilians by the Japanese soldiers by personally tying the hands of the victims [People vs. Canibas] (5) Mere fact of having joined a Makapili organization is evidence of both adherence to the enemy and giving him aid and comfort. Unless forced upon one against his will, membership in the Makapili organization imports treasonable intent, considering the purpose for which the organization was created [People vs. Adriano]
General Rule: When the killings and other common crimes are charged as overt acts of treason, they cannot be regarded: (1) as separate crimes, or (2) as complexed with treason. Exception: But this rule would not preclude the punishment of murder or other common crimes as such, if the prosecution should elect to prosecute the culprit specifically for these crimes, instead of relying on them as an element of treason. [People vs. Prieto] Treason by a Filipino citizen can be committed outside of the Philippines. Treason by an alien must be committed in the Philippines. The crime of treason is of such a nature that it may be committed by one single act, by a series of acts, or by several series thereof, not only in a single time, but in different times, it being a continuous crime. [People vs. Victoria] Two Ways of Proving Treason (1) Testimony of at least two witnesses to the same overt act; or (2) Confession of accused in open court. [Art. 114, par.2, RPC]
Acts not constituting treason (1) Commandeering" of women to satisfy the lust of Japanese officers or men or to enliven the entertainments held in their honor, even though the women and the entertainments helped to make life more pleasant for the enemies and boost their spirit. Sexual and social relations with the Japanese did not directly and materially tend to improve their war efforts or to weaken the power of the US. [People vs. Perez, supra] (2) Acceptance of public office and discharge of
The Two-witness Rule The testimony of two witnesses is required to prove the overt act of giving aid or comfort, but it is not necessary to prove adherence. Each of the witness 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 vs. Escleto]
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Membership as a Makapili, as an overt act, must be established by the deposition of two witnesses. Where two or more witnesses give oaths to an overt act and only one of them is believed by the court or jury, the defendant is entitled to discharge [People vs. Adriano]
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during the war is one of the rules of International Law; and (4) What is suspended is the exercise of the rights of sovereignty. In addition to the defense of duress or uncontrollable fear, lawful obedience to a de facto Government is a good defense in treason. The Philippine Executive Commission, as well as the Republic established by the Japanese occupation army in the Philippines, had all the characteristics of a de facto Government. [Go Kim Cham vs. Valdez]
Adherence may be proved: (1) By one witness, (2) From the nature of the act itself, or (3) From the circumstances surrounding the act. Adherence need not be proven by two witness testimonies – may be inferred from one witness, or from the nature of the act itself or other circumstances [People vs. Adriano, supra]
Defense of loss of citizenship by joining the army of the enemy is not valid. The accused cannot divest himself of his Philippine citizenship by the simple expedient of accepting a commission in the military, naval or air service of such country. If his contention is sustained, his very crime would be the shield that would protect him from punishment. [People vs. Manayao]
Aggravating Circumstance in treason Cruelty and ignominy Evident premeditation since adherence and the giving of aid and comfort to the enemy is usually a long continued process requiring reflective and persistent determination and planning. [People vs. Racaza] Superior strength & treachery – since they are inherent in treason. [People vs. Adlawan] Treachery, aid of armed persons to insure or afford impunity, and deliberately augmenting the crimes by causing other wrongs not necessary in the commission thereof – since they are inherent in the crime of treason. [People vs. Victoria]
ARTICLE 115 - CONSPIRACY PROPOSAL TO COMMIT TREASON
AND
Elements of Conspiracy to commit treason: (a) There is a war in which the Philippines is involved (b) At least two persons come to an agreement to (i) Levy war against the government; or (ii) Adhere to the enemies, giving them aid or comfort (c) They decide to commit it
Defense of Suspended Allegiance and change of sovereignty are not accepted because: (1) A citizen owes an absolute and permanent allegiance to his Government; (2) The sovereignty of the Government is not transferred to the enemy by mere occupation; (3) The subsistence of the sovereignty of the legitimate Government in a territory occupied by the military forces of the enemy
Elements of Proposal to commit treason (a) There is a war in which the Philippines is involved (b) At least one person decides to – (i) Levy war against the government; or (ii) Adhere to the enemies, giving them aid or comfort
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(c) That person proposes its execution to other persons
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of treason actually committed by another. In the latter case, the implication is that the government is already aware of it.
General rule: Conspiracy and proposal to commit a felony is not punishable under Article 8.
The offender in misprision of treason is punished as an accessory to treason. Note that Article 116 does not provide for a penalty. However, the offender is a principal in the crime of misprision of treason.
Exception: Under Article 115, mere conspiracy or proposal to commit treason is punishable. This is because, in treason, the very existence of the state is endangered. [Reyes, 2008]
Any person in authority having the equivalent jurisdiction (of a mayor, fiscal or governor), like a provincial commander, will already negate criminal liability.
The two-witness rule does not apply to conspiracy or proposal to commit treason because this is a separate and distinct offense from that of treason. [US vs. Bautista]
Blood relationship is always subservient to national security. Article 20 of the RPC regarding accessories who are exempt from criminal liability does not apply in this case because persons found liable for this crime are not considered accessories, but as principals.
ARTICLE 116 - MISPRISION OF TREASON Elements: (a) Offender owes allegiance to the government, and is not a foreigner (b) He has knowledge of conspiracy to commit treason against the government (c) He conceals or does not disclose and make known the same as soon as possible to the governor or fiscal of the province in which he resides, or the mayor or fiscal of the city in which he resides
Article 116 is an exception to the rule that mere silence does not make a person criminally liable. [US vs. Caballeros]
ARTICLE 117 – ESPIONAGE Mode 1: By entering, without authority therefor, a warship, fort, or naval or military establishment or reservation to obtain any information, plans, photographs, or other data of a confidential nature relative to the defense of the Philippines
This is a crime that may be committed only by citizens of the Philippines. It cannot be committed by a resident alien.
Elements: (a) Offender enters a warship, fort, or naval or military establishment or reservation; (b) He has no authority therefor; (c) That his purpose is to obtain information, plans, photographs or other data of a confidential nature relative to the defense of the Philippines.
Essence: There are persons who conspire to commit treason and the offender knew this and failed to make the necessary report to the government within the earliest possible time. Article 116 does not apply when the crime of treason is already committed by someone and the accused does not report its commission to the proper authority. The provision only speaks of “knowledge of any conspiracy against” the Government of the Philippines, not knowledge 141
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Mode 2: Disclosing by public officer of confidential information to a foreign representative
SPECIAL LAW COMMONWEALTH ACT NO. 616 (An Act to Punish Espionage and Other Offenses against the National Security)
Elements: (a) That the offender is a public officer; (b) That he has in his possession the articles, data or information of a confidential nature relative to the defense of the Philippines, by reason of the public office he holds; (c) That he discloses their contents to a representative of a foreign nation.
Punishable Acts Sec. 1. Unlawfully obtaining or permitting to be obtained information affecting national defense. — (a) going upon, entering, flying over, or otherwise obtaining information concerning any vessel, aircraft, work of defense, navy yard, naval station, submarine base, coaling station, fort, battery, torpedo station, dockyard, canal, railroad, arsenal, camp, factory, mine, telegraph, telephone, wireless, or signal station, building, office, or other place connected with the national defense, xxx or any place in which any vessel, aircraft, arms, munitions, or other materials or instruments for the use in time of war are being made, prepared, repaired, or stored, for the purposes of obtaining information respecting the national defense with intent or reason to believe that the information to be obtained is to be used to the injury of the Philippines or of the United States, or to the advantage of any foreign nation (b) copying, taking, making, or obtaining, or attempting, or inducing or aiding another to copy, take, make, or obtain, any sketch, photograph, photographic negative, blue print, plan, map, model, instrument, appliance, document, writing, or note of anything connected with the national defense for the same purpose and with like intent as in paragraph (a) (c) receiving or obtaining or agreeing or attempting or inducing or aiding another to receive or obtain from any person, or from any source whatever, any document, writing, code book, signal book, sketch,
Under paragraph 1, the offender may be any person, but under paragraph 2, the offender must be a public officer who has in his possession the information by reason of the public office he holds. To be liable under paragraph 1, the offender must have the intention to obtain information relative to the defense of the Philippines. It is not necessary that the information, etc. is obtained. It is sufficient that the offender has the purpose to obtain any of them. Espionage
Treason
Not conditioned by the Not conditioned by the citizenship of the citizenship of the offender offender May be committed Committed both in time of war and time of war in time of peace
only
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in
May be committed in Limited only to two many ways ways of committing the crime: levying of war and adhering to the enemy giving him aid or comfort
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photograph, photographic negative, blue print, plan, map, model, instrument, appliance, or note of anything connected with the national defense, knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts or induces or aids another to receive or obtain it, that it has been or will be obtained, taken, made, or disposed of by any person contrary to the provisions of this Act; or (d) wilfully communicating or transmitting or attempting to communicate or transmit any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, instrument, appliance, or note relating to the national defense to any person not entitled to receive it, or wilfully retaining the same and fails to deliver it on demand to the officer or employee of the Philippines or of the United States entitled to receive it; the offender having lawful or unlawful possession of, access to, control over, or being intrusted with the same; or (e) permitting, through gross negligence, to be removed from its proper place of custody or delivered to anyone in violation of this trust or to be lost, stolen, abstracted, or destroyed any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, note or information, relating to the national defense, the offender being intrusted with or having lawful possession or control of the same Sec. 2. Unlawful disclosing affecting national defense. —
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recognized or unrecognized by the Philippines, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, instrument, appliance, or information relating to the national defense, with the intent or reason to believe that it is to be used to the injury of the Philippines or to the advantage of a foreign nation *Punishable by death or imprisonment for not more than 30 years, if committed in time of war. (b) in time of war, by collecting, recording, publishing, or communicating, or attempting to elicit any information with respect to the movement, number, description, condition, or disposition of any of the armed forces, ships, aircraft, or war materials of the Philippines, or with respect to the plans or conduct, or supposed plans or conduct of any military, naval, or air operations, or with respect to any works or measures undertaken for or connected with, or intended for the fortification or defense of any place, or any other information relating to the public defense which might be useful to the enemy
Sec. 3. Disloyal acts or works in time of peace. — It shall be unlawful for any person, with intent to interfere with, impair, or influence the loyalty, morale, or discipline of the military, naval, or air forces of the Philippines
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(a) advising, counseling, urging, or in any manner causing insubordination, disloyalty, mutiny, or refusal of duty by any member of the military, naval, or air forces of the Philippines or of the United States; or
(a) communicating, delivering, or transmitting, or attempting to, or aiding or inducing another to, communicate, deliver, or transmit to any foreign government, or any faction or party or military or naval force within a foreign country, whether 143
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(b) distributing any written or printed matter which advises, counsels, or urges insubordination, disloyalty, mutiny, or refusal of duty by any member of the military, naval, or air forces of the Philippines.
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Other Acts Making any photograph, sketch, picture, drawing, map, or graphical representation of vital military, naval, and air installations or equipment of the Armed Forces of the Philippines without first obtaining permission of the commanding officer [Sec. 8] Using or permitting or procuring the use of an aircraft for the purpose of making a photograph, sketch, picture, drawing, map, or graphical representation of vital military, naval or air installations or equipment, in violation of Sec. 8 [Sec. 9] Reproducing, publishing, selling, etc., uncensored copies any photograph, sketch, picture, drawing, map or graphical representation of the vital military, naval, or air installations or equipment so defined, without first obtaining permission of the commanding officer [Sec. 10] Destroying or injuring or attempting to injure or destroy war material in time of war [Sec. 11] Making or causing war material to be made in defective manner when the Philippines is at war [Sec. 12] Injuring or destroying national defense material, premises, or utilities [Sec. 13] Making or causing to be made in a defective manner, or attempting to make or cause to be made in a defective manner, national defense material [Sec. 14]
Sec. 4. Disloyal acts or words in time of war. — wilfully making or conveying false reports or false statements with the intent to interfere with the operation or success of the military, naval, or air forces of the Philippines, or To promote the success of its enemies, by wilfully causing or attempting to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military, naval, or air forces of the Philippines, or Willfully obstructing the recruiting or enlistment service of the Philippines to the injury of the service of the Philippines Sec. 5. Conspiracy to violate preceding sections. — (1) two or more persons conspire to violate the provisions of sections 1, 2, 3, or 4 of this Act, (2) one or more of such persons does any act to effect the object of the conspiracy Each of the parties to such conspiracy shall be punished as in said sections provided in the case of the doing of the act the accomplishment of which is the object of such conspiracy.
CRIMES AGAINST NATIONS
Section 6. Harboring or concealing violators of the law. — harboring or concealing any person who he knows, or has reasonable ground to believe or suspect, has committed, or is about to commit, an offense under this Act.
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ARTICLE 118 - INCITING TO WAR OR GIVING MOTIVES FOR REPRISALS Elements: (a) Offender performs unlawful or unauthorized acts (b) The acts provoke or give occasion for 144
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(i) A war involving or liable to involve the Philippines; or (ii) Exposure of Filipino citizens to reprisals on their persons or property
Correspondence - Communication by means of letters which pass between those who have friendly or business relations. Even if the correspondence contains innocent matters, if the correspondence has been prohibited by the Government, it is punishable.
This crime is committed in time of peace. The intention of the offender is immaterial. The law considers the effects produced by the acts of the accused. [Reyes, 2012l citing Albert]
Prohibition by the Government is not essential in instances 2 and 3.
Examples: The public destruction of the flag or seal of a foreign state or the public manifestations of hostility to the head or ambassador of another state.
ARTICLE 119 NEUTRALITY
-
VIOLATION
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Qualifying Circumstances under Instance 3 - The following must concur: (1) That the notice or information might be useful to the enemy, and (2) That the offender intended to aid the enemy.
OF If the offender intended to aid the enemy by giving such notice or information, the crime amounts to treason; hence, the penalty is the same as that for treason. [Reyes, 2008]
Elements (a) There is a war in which the Philippines is not involved (b) There is a regulation issued by a competent authority to enforce neutrality (c) Offender violates the regulation
ARTICLE 121 - FLIGHT TO ENEMY'S COUNTRY Elements: (a) There is a war in which the Philippines is involved (b) Offender must be owing allegiance to the government (c) Offender attempts to flee or go to enemy country (d) Going to the enemy country is prohibited by competent authority
Definition of neutrality. A nation or power which takes no part in a contest of arms going on between other countries
ARTICLE 120 - CORRESPONDENCE WITH HOSTILE COUNTRY Elements: (a) It is a time of war in which the Philippines is involved (b) Offender makes correspondence with an enemy country or territory occupied by enemy troops (c) The correspondence is either – (i) Prohibited by the government, or (ii) Carried on in ciphers or conventional signs, or (iii) Containing notice or information which might be useful to the enemy.
An alien resident may be guilty of flight to enemy country. The law does not say “not being a foreigner.” Hence, the allegiance contemplated in this article is either natural or temporary allegiance. [Reyes, 2008]
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ARTICLE 122 - PIRACY IN GENERAL AND MUTINY ON THE HIGH SEAS OR IN PHILIPPINE WATERS
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Mutiny - the unlawful resistance to a superior officer, or the raising of commotions and disturbances
Elements: (a) The vessel is on the high seas or Philippine waters (b) Offenders are neither members of its complement nor passengers of the vessel (c) Offenders either – (i) Attack or seize that vessel; or (ii) Seize the whole or part of its cargo, its equipment or personal belongings of its complement or passengers (iii) There is intent to gain
Mutiny is usually committed by the other members of the complement and may be committed by the passengers of the vessel. Piracy
Mutiny
Persons who attack the vessel or seize its cargo are strangers to said vessels
Persons who attack the vessel or seize its cargo are members of the crew or passengers
Intent to essential
Acts Punished in Piracy: (1) Attacking or seizing a vessel on the high seas or in Philippine waters (2) Seizing the whole or part of its cargo, complement or passengers while the vessel is on the high seas or in Philippine waters High Seas - parts of the seas that are not included in the exclusive economic zone, in the territorial seas, or in the internal waters of a state, or in the archipelagic waters of an archipelagic state [Convention on the Law of the Sea]
gain
is Intent to gain is not essential. The offenders may only intend to ignore the ship’s officers or they may be prompted by a desire to commit plunder.
Abetting Piracy In Section 4 of Presidential Decree No. 532, the act of aiding pirates or abetting piracy is penalized as a crime distinct from piracy. Said section penalizes any person who knowingly and in any manner aids or protects pirates, such as giving them information about the movement of the police or other peace officers of the government, or acquires or receives property taken by such pirates, or in any manner derives any benefit therefrom; or who directly or indirectly abets the commission of piracy.
Piracy - robbery or forcible depredation on the high seas, without lawful authority and done with animo furandi and in the spirit and intention of universal hostility. [People vs. Lol-lo and Saraw] Jurisdiction The jurisdiction of piracy unlike all other crimes has no territorial limits. Pirates are in law hostes humani generis. Piracy is a crime not against any particular State but against all mankind. It may be punished in the competent tribunal of any country where the offender may be found or into which he may be carried. [People vs. Lol-lo and Saraw, supra]
Also, it is expressly provided in the same section that the offender shall be considered as an accomplice of the principal offenders and punished in accordance with the Revised Penal Code.
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This provision of PD No. 532 with respect to piracy in Philippine waters has not been incorporated into the RPC. Neither may it be considered repealed by RA 7659 (An Act to Impose the Death Penalty on Certain Heinous Crimes) since there is nothing in the amendatory law, which is inconsistent with said section.
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Paragraph 2 (Item 2 in letter D) specifically mentions “pirates” thereby excluding mutineers from said paragraph. It would seem, however, that it should be in paragraph 1 (Item 1 in letter D) where the word “pirates” should be specifically mentioned and not in paragraph 2, because in paragraph 1, the mutineers, being already in the vessel, cannot seize the vessel by boarding or firing upon the same. [Reyes, 2012]
RA 9372 (Human Security Act of 2007) A person who commits an act punishable as piracy and mutiny under Article 122 thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism.
Murder, rape, homicide, physical injuries are mere circumstances qualifying piracy and cannot be punished as separate crimes, nor can they be complexed with piracy.
SPECIAL LAW PD 532: ANTI-PIRACY HIGHWAY ROBBERY
ARTICLE 123 - QUALIFIED PIRACY Elements: (a) The vessel is on the high seas or Philippine waters (b) Offenders are neither members of its complement, or passengers of the vessel (c) Offenders either – (i) Attack or seize the vessel; or (ii) Seize the whole or part of its cargo, its equipment, or personal belongings of its crew or passengers (d) The preceding were committed under any of the following circumstances: (i) Whenever they have seized a vessel by boarding or firing upon the same; (ii) Whenever the pirates have abandoned their victims without means of saving themselves; or (iii) Whenever the crime is accompanied by murder, homicide, physical injuries or rape
AND
ANTI-
Definition of Terms Sec. 2. Definition of Terms. The following terms shall mean and be understood, as follows: (a) Philippine Waters. It shall refer to all bodies of water, such as but not limited to, seas, gulfs, bays around, between and connecting each of the Islands of the Philippine Archipelago, irrespective of its depth, breadth, length or dimension, and all other waters belonging to the Philippines by historic or legal title, including territorial sea, the sea-bed, the insular shelves, and other submarine areas over which the Philippines has sovereignty or jurisdiction. (b) Vessel. Any vessel or watercraft used for transport of passengers and cargo from one place to another through Philippine Waters. It shall include all kinds and types of vessels or boats used in fishing.
If any of the circumstances in Article 123 is present, piracy is qualified.
(c) Philippine Highway. It shall refer to any road, street, passage, highway and bridges or other parts thereof, or railway or railroad within the Philippines used by persons, or 147
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vehicles, or locomotives or trains for the movement or circulation of persons or transportation of goods, articles, or property or both.
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vessel, the mandatory penalty of death shall be imposed. (b) Highway Robbery/Brigandage. The penalty of reclusion temporal in its minimum period shall be imposed. If physical injuries or other crimes are committed during or on the occasion of the commission of robbery or brigandage, the penalty of reclusion temporal in its medium and maximum periods shall be imposed. If kidnapping for ransom or extortion, or murder or homicide, or rape is committed as a result or on the occasion thereof, the penalty of death shall be imposed.
(d) Piracy. Any attack upon or seizure of any vessel, or the taking away of the whole or part thereof or its cargo, equipment, or the personal belongings of its complement or passengers, irrespective of the value thereof, by means of violence against or intimidation of persons or force upon things, committed by any person, including a passenger or member of the complement of said vessel, in Philippine waters, shall be considered as piracy. The offenders shall be considered as pirates and punished as hereinafter provided.
Sec. 4. Aiding pirates or highway robbers/brigands or abetting piracy or highway robbery/brigandage. Any person who knowingly and in any manner aids or protects pirates or highway robbers/brigands, such as giving them information about the movement of police or other peace officers of the government, or acquires or receives property taken by such pirates or brigands or in any manner derives any benefit therefrom; or any person who directly or indirectly abets the commission of piracy or highway robbery or brigandage, shall be considered as an accomplice of the principal offenders and be punished in accordance with the Rules prescribed by the Revised Penal Code.
(e) Highway Robbery/Brigandage. The seizure of any person for ransom, extortion or other unlawful purposes, or the taking away of the property of another by means of violence against or intimidation of person or force upon things of other unlawful means, committed by any person on any Philippine Highway. Punishable Acts Sec. 3. Penalties. Any person who commits piracy or highway robbery/brigandage as herein defined, shall, upon conviction by competent court be punished by: (a) Piracy. The penalty of reclusion temporal in its medium and maximum periods shall be imposed. If physical injuries or other crimes are committed as a result or on the occasion thereof, the penalty of reclusion perpetua shall be imposed. If rape, murder or homicide is committed as a result or on the occasion of piracy, or when the offenders abandoned the victims without means of saving themselves, or when the seizure is accomplished by firing upon or boarding a
It shall be presumed that any person who does any of the acts provided in this Section has performed knowingly, unless the contrary is proven.
RA 6235: ANTI-HIJACKING LAW Punishable Acts Sec. 1. It shall be unlawful for any person to compel a change in the course or destination of an aircraft of Philippine registry, or to seize or usurp the control thereof, while it is in flight. An aircraft is in flight from the moment all its external doors are closed following 148
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embarkation until any of such doors is opened for disembarkation.
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(3) Republic Act No. 5207, (Atomic Energy Regulatory and Liability Act of 1968); (4) Republic Act No. 6235 (Anti-Hijacking Law); (5) Presidential Decree No. 532 (Anti-piracy and Anti-highway Robbery Law of 1974); and, (6) Presidential Decree No. 1866, as amended (Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives)
It shall likewise be unlawful for any person to compel an aircraft of foreign registry to land in Philippine territory or to seize or usurp the control thereof while it is within the said territory. Sec. 3. It shall be unlawful for any person, natural or juridical, to ship, load or carry in any passenger aircraft operating as a public utility within the Philippines, and explosive, flammable, corrosive or poisonous substance or material.
thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism and shall suffer the penalty of forty (40) years of imprisonment, without the benefit of parole as provided for under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.
Sec. 4. The shipping, loading or carrying of any substance or material mentioned in the preceding section in any cargo aircraft operating as a public utility within the Philippines shall be in accordance with regulations issued by the Civil Aeronautics Administration
Who Are Liable Sec. 4. Conspiracy to Commit Terrorism. Persons who conspire to commit the crime of terrorism shall suffer the penalty of forty (40) years of imprisonment.
RA 9372: HUMAN SECURITY ACT OF 2007 Sec. 3. Terrorism. Any person who commits an act punishable under any of the following provisions of the Revised Penal Code: (1) Article 122 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters); (2) Article 134 (Rebellion or Insurrection); (3) Article 134-a (Coup d’état), including acts committed by private persons; (4) Article 248 (Murder); (5) Article 267 (Kidnapping and Serious Illegal Detention); (6) Article 324 (Crimes Involving Destruction),
There is conspiracy when two or more persons come to an agreement concerning the commission of the crime of terrorism as defined in Section 3 hereof and decide to commit the same. Sec. 5. Accomplice. Any person who, not being a principal under Article 17 of the Revised Penal Code or a conspirator as defined in Section 4 hereof, cooperates in the execution of either the crime of terrorism or conspiracy to commit terrorism by previous or simultaneous acts shall suffer the penalty of from seventeen (17) years, four (4) months one day to twenty (20) years of imprisonment.
or under (1) Presidential Decree No. 1613 (The Law on Arson); (2) Republic Act No. 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990); 149
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Title II. Crimes against Fundamental Laws of the State
Sec. 6. Accessory. Any person who, having knowledge of the commission of the crime of terrorism or conspiracy to commit terrorism, and without having participated therein, either as principal or accomplice under Articles 17 and 18 of the Revised Penal Code, takes part subsequent to its commission in any of the following manner: (a) by profiting himself or assisting the offender to profit by the effects of the crime; (b) by concealing or destroying the body of the crime, or the effects, or instruments thereof, in order to prevent its discovery; (c) by harboring, concealing, or assisting in the escape of the principal or conspirator of the crime, shall suffer the penalty of ten (10) years and one day to twelve (12) years of imprisonment.
(1) Art. 124: Arbitrary Detention (2) Art. 125: Delay in the Delivery Of Detained Persons to the Proper Judicial Authorities (3) Art. 126: Delaying Release (4) Art. 127: Expulsion (5) Art. 128: Violation of Domicile (6) Art.129: Search Warrants Maliciously Obtained and Abuse in the Service of those Legally Obtained (7) Art. 130: Searching Domicile Without Witnesses (8) Art. 131: Prohibition, Interruption and Dissolution of Peaceful Meetings (9) Art. 132: Interruption of Religious Worship (10) Art. 133: Offending the Religious Feelings
Notwithstanding the above paragraph, the penalties prescribed for accessories shall not be imposed upon those who are such with respect to their spouses, ascendants, descendants, legitimate, natural, and adopted brothers and sisters, or relatives by affinity within the same degrees, with the single exception of accessories falling within the provisions of subparagraph (a).
Crimes under this title are those that violate certain provisions of the Bill of Rights. All offenses under this title can only be committed by public officers; except offending the religious feelings under Article 133, which can also be committed by a private person.
SEC. 49. Prosecution Under This Act Shall be a Bar to Another Prosecution under the Revised Penal Code or any Special Penal Laws. - When a person has been prosecuted under a provision of this Act, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for any offense or felony which is necessarily included in the offense charged under this Act.
A private person may be liable under these articles only when he: (1) Conspires with a public officer; or (2) He becomes an accomplice or accessory to said crimes
ARTICLE 124 - ARBITRARY DETENTION Elements: (a) Offender is a public officer or employee (b) He detains a person (c) Detention is without a legal ground The Crime of Arbitrary Detention assumes several forms: 150
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(1) Detaining a person without legal grounds [Article 124]; (2) Having arrested the offended party for legal grounds but without warrant of arrest, and the public officer does not deliver the arrested person to the proper judicial authority within the period of 12, 18, or 36 hours, as the case may be [Article 125]; or (3) Delaying release by competent authority with the same period mentioned in number 2 [Article 126].
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arbitrary detention. This is because he is a person in authority vested with jurisdiction to maintain peace and order within his barangay. [Milo vs. Salanga (1987)] There must be an actual restraint of liberty of the offended party. The crime committed is only grave or light threats if the offended party may still go to the place where he wants to go, even though there have been warnings.
Detention - actual confinement of a person in an enclosure, or in any manner detaining and depriving him of his liberty.
If the offender falsely imputes a crime against a person to be able to arrest him and appear not determined to file a charge against him, the crime is arbitrary detention through unlawful arrest. [Boado, Comprehensive Reviewer in Criminal Law]
The detention of a person is without legal ground: (1) when he has not committed any crime or, at least, there is no reasonable ground for suspicion that he has committed a crime, or (2) when he is not suffering from violent insanity or any other ailment requiring compulsory confinement in a hospital.
A case where a DENR team was invited to Mayor Astorga’s house from 5:30pm to 2:30am for dinner and drinks, does not fall under Arbitrary Detention. Absent any physical restraint, an element of the said crime is fear. No record on evidence showed that the mayor instilled fear into the minds of the DENR team while they were in the Mayor’s house. [Astorga vs. People (2004)]
A public officer is deemed such when he is acting within the bounds of his official authority or function. A police officer who employs force in excess of what is necessary is acting outside the bounds of his duties and is considered acting in his private capacity. [Boado, Comprehensive Reviewer in Criminal Law]
Arrest without warrant is the usual cause of arbitrary detention.
Rules of court. Rule 113, Section 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a warrant, arrest a person:
In the crime of arbitrary detention, although the offender is a public officer, not any public officer can commit this crime. Only those public officers whose official duties carry with it the authority to make an arrest and detain persons can be guilty of this crime.
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed, and he has probable cause to believe based
In a case decided by the Supreme Court, a Barangay Chairman who unlawfully detains another was held to be guilty of the crime of 151
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on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.
In cases falling under paragraph (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112.
Difference between Arbitrary Detention, Illegal Detention and Unlawful Arrest Arbitrary Detention Illegal Detention
Unlawful Arrest
Offender Public officer who has (1) Private person; or Any person authority to make arrests and (2) Public officer who is detain persons acting in a private capacity or beyond the scope of his official duty Criminal Violate the offended party’s Deprive the offended party of Accuse the offended party of Intent constitutional freedom his personal liberty a crime he did not commit, against warrantless arrest deliver him to the proper authority, and file the necessary charges to incriminate him
ARTICLE 125 - DELAY IN THE DELIVERY OF DETAINED PERSONS TO THE PROPER JUDICIAL AUTHORITIES
(ii) 18 hours for correctional penalties (iii) 36 hours for afflictive or capital penalties
Elements: (a) Offender is a public officer or employee (b) He detains a person for some legal ground (c) He fails to deliver such person to the proper judicial authorities within – (i) 12 hours for light penalties
This is applicable only when the arrest is without a warrant, but the arrest must be lawful. At the beginning, the detention is legal since it is in the pursuance of a lawful arrest. Detention becomes arbitrary when the: (1) Applicable period lapses 152
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(2) Without the arresting officer filing a formal charge with the proper court.
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Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen days from its inception. [Sec. 7, par. 2, Rule 112 of the Revised Rules of Criminal Procedure]
The periods stated are counted only when the prosecutor’s office is ready to receive the complaint or information. Nighttime is not included in the period.
ARTICLE 126 - DELAYING RELEASE
“Delivery” means the filing of correct information with the proper court (or constructive delivery – turning over the person arrested to the jurisdiction of the court). The purpose is to determine whether the offense is bailable or not. (Upon delivery, judge or court acquires jurisdiction to issue an order of release or of commitment of prisoner.) [Sayo vs. Chief of Police (1948)]
Elements: (a) Offender is a public officer or employee (b) There is a: (i) Judicial or executive order for the release of a prisoner or detention prisoner, or (ii) A proceeding upon a petition for the liberation of such person (c) Offender without good reason delays – (i) The service of the notice of such order to the prisoner (ii) The performance of such judicial or executive order for the release of the prisoner; or (iii) The proceedings upon a petition for the release of such person
The elements of custodial investigation are: (a) The suspect is deprived of liberty in any significant manner; (b) The interrogation is initiated by law enforcement authorities; (c) The interrogation is inculpatory in character. [People vs. Tan (1998)]
Wardens and jailers are the public officers most likely to violate Article 126
Where the invitation comes from a powerful group composed predominantly of ranking military officers and the designated interrogation site is a military camp, the same can be easily taken not as a strictly voluntary invitation. It is an authoritative command that one can only defy at one’s peril. [Sanchez vs. Demetriou (1993)]
ARTICLE 127 – EXPULSION Elements: (a) Offender is a public officer or employee (b) He either – (i) Expels any person from the Philippines; or (ii) Compels a person to change residence (c) Offender is not authorized to do so by law
Detained person should be released when a judge is not available. [Albior vs. Aguis (2003)]
The city mayor of Manila committed the crime of expulsion when he ordered certain prostitutes to be transferred to Davao WITHOUT observing due process since they have not been charged with any crime. [Villavicencio vs. Lukban (1919)]
Waiver of the provisions of Article 125 Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with Rule 112 of the Revised Rules of Criminal Procedure, but he must sign a waiver of the provisions of Article 125 of the RPC in the presence of his counsel.
ARTICLE 128 - VIOLATION OF DOMICILE 153
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[M]ere suspicion or a hunch will not validate a "stop and frisk." A genuine reason must exist, in light of the police officer's experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. Finally, a "stop-and-frisk" serves a two-fold interest:
Acts punished: (1) Entering any dwelling against the will of the owner thereof (2) Searching papers or other effects found therein without the previous consent of such owner, or (3) Refusing to leave the premises, after having surreptitiously entered said dwelling and after having been required to leave the same
(1) The general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) The more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer. [Malacat vs. CA (1997)]
Elements common to the three acts: (a) Offender is a public officer or employee (b) He is not authorized by judicial order – (i) To enter the dwelling; (ii) To make a search therein for papers or other effects; or (iii) He refuses to leave, after having surreptitiously entered such dwelling and been required to leave the same Qualifying circumstances: (1) Nighttime (2) Papers or effects not constituting evidence of a crime are not returned immediately after the search made by the offender
“Against the will” means that the offender ignored the prohibition of the owner which may be express or implied as when the door is closed even though not locked. [Boado, Comprehensive Reviewer in Criminal Law]
Rule 113 Of The Revised Rules Of Court: a public officer who breaks into the premises incurs no liability when a person to be arrested enters said premises and closes it thereafter, provided that the officer first gives a notice of arrest.
The offender must be a public officer or employee. If the offender is a private individual then the crime is trespass to dwelling under Article 280.
According to People vs. Doria (1999) and People vs. Elamparo (2000), the following are the accepted exceptions to the warrant requirement: (1) Search incidental to an arrest; (2) Search of moving vehicles; (3) Evidence in plain view; (4) Stop and frisk; (5) Customs searches; and (6) Consented warrantless search.
ARTICLE 129 - SEARCH WARRANTS MALICIOUSLY OBTAINED, AND ABUSE IN THE SERVICE OF THOSE LEGALLY OBTAINED Procuring a search warrant without just cause: (a) Offender is a public officer or employee (b) He procures a search warrant (c) There is no just cause
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Exceeding authority or using unnecessary severity in executing a search warrant legally procured: (a) Offender is a public officer or employee (b) He has legally procured a search warrant (c) He exceeds his authority or uses unnecessary severity in executing the same
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(1) He is refused admittance to the place of directed search; (2) His purpose is to execute the warrant to liberate himself or any person lawfully aiding him when unlawfully detained therein; and (3) He has given notice of his purpose and authority.
ARTICLE 130 - SEARCHING DOMICILE WITHOUT WITNESSES
The warrant must direct that it be served in the daytime. However, it can be served at any time of the day or night when the affidavit asserts that the property is on the person or in the place ordered to be searched.
Elements: (a) Offender is a public officer or employee (b) He is armed with search warrant legally procured (c) He searches the domicile, papers or other belongings of any person (d) The owner, or any members of his family, or two witnesses residing in the same locality are not present
A search warrant shall be valid for ten (10) days from its date. Thereafter, it shall be void. The officer seizing the property under the warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made.
Rule 126: Search and Seizure A search warrant is an order in writing (1) Signed by a judge (2) Directed to a peace officer, commanding him to search for personal property described therein and bring it before the court
In the absence of such occupant, the officer must: (1) Leave a receipt in the place in which he found the seized property; (2) In the presence of at least two witnesses of sufficient age and discretion residing in the same locality.
Requisites for issuing a search warrant: (a) Probable cause, in connection with one specific offense, to be determined personally by the judge after examination under oath or affirmation of the complainant and the witness he may produce (b) Particular description of: (i) Place to be searched; and (ii) Things to be seized which may be anywhere in the Philippines
ARTICLE 131 PROHIBITION, INTERRUPTION AND DISSOLUTION OF PEACEFUL MEETINGS Elements: (a) Offender is a public officer or employee (b) He performs any of the following acts: (i) Prohibiting or interrupting, without legal ground, the holding of a peaceful meeting, or by dissolving the same (ii) Hindering any person from joining any lawful association, or from attending any of its meetings
An officer may break open any outer or inner door or window of a house or any part of a house or anything therein when these circumstances concur: 155
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ARTICLE 133 - OFFENDING RELIGIOUS FEELINGS
(iii) Prohibiting or hindering any person from addressing, either alone or together with others, any petition to the authorities for the correction of abuses or redress of grievances
The permit should state the day, time, and place of the gathering.
In the phrase “in a place devoted to religious worship,” it is not necessary that there is a religious ceremony going on when the offender performs acts notoriously offensive to the feelings of the faithful. The phrase “during the celebration” is separated by the word “or” from the phrase “place devoted to religious worship,” which indicates that the “religious ceremony” need not be celebrated in a place of worship. [Reyes (2012)]
If the permit is denied arbitrarily, OR the officer dictates the place where the meeting is to be held, this article is violated. If in the course of the assembly, which started out peacefully, the participants committed illegal acts like oral defamation or inciting to sedition, a public officer or law enforcer can stop or dissolve the meeting.
An act is notoriously offensive to the religious feelings when a person: (1) Ridicules or makes light of anything constituting religious dogma (2) Works or scoffs at anything devoted to religious ceremonies (3) Plays with or damages or destroys any object of veneration of the faithful
Two criteria to determine whether this article would be violated: (1) Dangerous tendency rule – applied during times of national unrest such as to prevent coup d’état. (2) Clear and present danger rule – applied during times of peace. Stricter rule.
WON an act is offensive to the religious feelings, is a question of fact which must be adjudged only according to the feelings of the Catholics and not those of other faithful ones. [People vs. Baes (1939)]
OF
Elements: (a) Offender is a public officer or employee (b) Religious ceremonies or manifestations of any religion are about to take place or are going on (c) Offender prevents or disturbs the same Qualifying circumstance: if the committed with violence or threats.
crime
THE
Elements: (a) Acts complained of were performed (i) in a place devoted to religious worship, or (ii) during the celebration of any religious ceremony (b) The acts must be notoriously offensive to the feelings of the faithful
The government has a right to require a permit before any gathering can be made. However, the government only has regulatory, not prohibitory, powers with regard to such requirement.
ARTICLE 132 - INTERRUPTION RELIGIOUS WORSHIP
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Laurel Dissent in People vs. Baes: Offense to religious feelings should not be made to depend upon the more or less broad or narrow conception of any given particular religion, but should be gauged having in view the nature of the acts committed and after scrutiny of all the facts and circumstance which should be viewed
is
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through the mirror of an unbiased judicial criterion. (Note: This later became the majority decision in People vs. Tengson)
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the duty of the judge, among other things, to ascertain the identity of the police or law enforcement personnel and the person or persons they have arrested and presented before him or her, to inquire of them the reasons why they have arrested the person and determine by questioning and personal observation whether or not the suspect has been subjected to any physical, moral or psychological torture by whom and why. The judge shall then submit a written report of what he/she had observed when the subject was brought before him to the proper court that has jurisdiction over the case of the person thus arrested. the judge shall forthwith submit his/her report within three (3) calendar days from the time the suspect was brought to his/her residence or office.
The crime is only UNJUST VEXATION when the act is NOT directed at the religious belief itself and there is no intention of causing so serious a disturbance as to interrupt a religious ceremony. [People vs. Nanoy]
SPECIAL LAWS RA 9372: HUMAN SECURITY ACT Period of Detention Sec. 18. Period of Detention Without Judicial Warrant of Arrest. The provisions of Article 125 of the Revised Penal Code to the contrary notwithstanding, any police or law enforcement personnel, who, having been duly authorized in writing by the Anti-Terrorism Council has taken custody of a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism shall, without incurring any criminal liability for delay in the delivery of detained persons to the proper judicial authorities, deliver said charged or suspected person to the proper judicial authority within a period of three (3) days counted from the moment the said charged or suspected person has been apprehended or arrested, detained, and taken into custody by the said police, or law enforcement personnel: Provided, That the arrest of those suspected of the crime of terrorism or conspiracy to commit terrorism must result from the surveillance under Section 7 and examination of bank deposits under Section 27 of this Act.
Immediately after taking custody of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, the police or law enforcement personnel shall notify in writing the judge of the court nearest the place of apprehension or arrest: Provided, That where the arrest is made during Saturdays, Sundays, holidays or after office hours, the written notice shall be served at the residence of the judge nearest the place where the accused was arrested. The penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon the police or law enforcement personnel who fails to notify any judge as provided in the preceding paragraph. Sec. 19. Period of Detention in the Event of an Actual or Imminent Terrorist Attack. In the event of an actual or imminent terrorist attack, suspects may not be detained for more than three (3) days without the written approval of a municipal, city, provincial or regional official of a Human Rights Commission or judge of the municipal, regional trial court, the
The police or law enforcement personnel concerned shall, before detaining the person suspected of the crime of terrorism, present him or her before any judge at the latter’s residence or office nearest the place where the arrest took place at any time of the day or night. It shall be 157
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Sandiganbayan or a justice of the Court of Appeals nearest the place of the arrest. If the arrest is made during Saturdays, Sundays, holidays or after office hours, the arresting police or law enforcement personnel shall bring the person thus arrested to the residence of any of the officials mentioned above that is nearest the place where the accused was arrested. The approval in writing of any of the said officials shall be secured by the police or law enforcement personnel concerned within five (5) days after the date of the detention of the persons concerned: Provided, however, That within three (3) days after the detention the suspects, whose connection with the terror attack or threat is not established, shall be released immediately.
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(5) The submersion of the head in water or water polluted with excrement, urine, vomit and/or blood until the brink of suffocation; (6) Being tied or forced to assume fixed and stressful bodily position; (7) Rape and sexual abuse, including the insertion of foreign objects into the sex organ or rectum, or electrical torture of the genitals; (8) Mutilation or amputation of the essential parts of the body such as the genitalia, ear, tongue, etc.; (9) Dental torture or the forced extraction of the teeth; (10) Pulling out of fingernails; (11) Harmful exposure to the elements such as sunlight and extreme cold; (12) The use of plastic bag and other materials placed over the head to the point of asphyxiation; (i) The administration or drugs to induce confession and/or reduce mental competency; or (ii) The use of drugs to induce extreme pain or certain symptoms of a disease; and (13) Other analogous acts of physical torture; and
RA 9745: ANTI-TORTURE ACT Punishable Acts Sec. 4. Acts of Torture. - For purposes of this Act, torture shall include, but not be limited to, the following: (a) Physical torture is a form of treatment or punishment inflicted by a person in authority or agent of a person in authority upon another in his/her custody that causes severe pain, exhaustion, disability or dysfunction of one or more parts of the body, such as: (1) Systematic beating, headbanging, punching, kicking, striking with truncheon or rifle butt or other similar objects, and jumping on the stomach; (2) Food deprivation or forcible feeding with spoiled food, animal or human excreta and other stuff or substances not normally eaten; (3) Electric shock; (4) Cigarette burning; burning by electrically heated rods, hot oil, acid; by the rubbing of pepper or other chemical substances on mucous membranes, or acids or spices directly on the wound(s);
(b) "Mental/Psychological Torture" refers to acts committed by a person in authority or agent of a person in authority which are calculated to affect or confuse the mind and/or undermine a person's dignity and morale, such as: (1) Blindfolding; (2) Threatening a person(s) or his/her relative(s) with bodily harm, execution or other wrongful acts; (3) Confinement in solitary cells or secret detention places; (4) Prolonged interrogation;
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(5) Preparing a prisoner for a "show trial", public display or public humiliation of a detainee or prisoner; (6) Causing unscheduled transfer of a person deprived of liberty from one place to another, creating the belief that he/she shall be summarily executed; (7) Maltreating a member/s of a person's family; (8) Causing the torture sessions to be witnessed by the person's family, relatives or any third party; (9) Denial of sleep/rest; (10) Shame infliction such as stripping the person naked, parading him/her in public places, shaving the victim's head or putting marks on his/her body against his/her will; (11) Deliberately prohibiting the victim to communicate with any member of his/her family; and (12) Other analogous acts of mental/psychological torture.
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or punishment as criminal acts shall apply to all circumstances. A state of war or a threat of war, internal political instability, or any other public emergency, or a document or any determination comprising an "order of battle" shall not and can never be invoked as a justification for torture and other cruel, inhuman and degrading treatment or punishment. Sec. 7. Prohibited Detention. - Secret detention places, solitary confinement, incommunicado or other similar forms of detention, where torture may be carried out with impunity are hereby prohibited. In which case, the Philippine National Police (PNP), the Armed Forces of the Philippines (AFP) and other law enforcement agencies concerned shall make an updated list of all detention centers and facilities under their respective jurisdictions with the corresponding data on the prisoners or detainees incarcerated or detained therein such as, among others, names, date of arrest and incarceration, and the crime or offense committed. This list shall be made available to the public at all times, with a copy of the complete list available at the respective national headquarters of the PNP and AFP. A copy of the complete list shall likewise be submitted by the PNP, AFP and all other law enforcement agencies to the Commission on Human Rights (CHR), such list to be periodically updated, by the same agencies, within the first five (5) days of every month at the minimum. Every regional office of the PNP, AFP and other law enforcement agencies shall also maintain a similar list far all detainees and detention facilities within their respective areas, and shall make the same available to the public at all times at their respective regional headquarters, and submit a copy, updated in the same manner provided above, to the respective regional offices of the CHR.
Sec. 5. Other Cruel, Inhuman and Degrading Treatment or Punishment. - Other cruel, inhuman or degrading treatment or punishment refers to a deliberate and aggravated treatment or punishment not enumerated under Section 4 of this Act, inflicted by a person in authority or agent of a person in authority against another person in custody, which attains a level of severity sufficient to cause suffering, gross humiliation or debasement to the latter. The assessment of the level of severity shall depend on all the circumstances of the case, including the duration of the treatment or punishment, its physical and mental effects and, in some cases, the sex, religion, age and state of health of the victim. Sec. 6. Freedom from Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, An Absolute Right. - Torture and other cruel, inhuman and degrading treatment 159
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Who Are Liable Sec. 13. Who are Criminally Liable. - Any person who actually participated or induced another in the commission of torture or other cruel, inhuman and degrading treatment or punishment or who cooperated in the execution of the act of torture or other cruel, inhuman and degrading treatment or punishment by previous or simultaneous acts shall be liable as principal.
CRIMINAL LAW
Any public officer or employee shall be liable as an accessory if he/she has knowledge that torture or other cruel, inhuman and degrading treatment or punishment is being committed and without having participated therein, either as principal or accomplice, takes part subsequent to its commission in any of the following manner: (a) By themselves profiting from or assisting the offender to profit from the effects of the act of torture or other cruel, inhuman and degrading treatment or punishment; (b) By concealing the act of torture or other cruel, inhuman and degrading treatment or punishment and/or destroying the effects or instruments thereof in order to prevent its discovery; or (c) By harboring, concealing or assisting the escape of the principal/s in the act of torture or other cruel, inhuman and degrading treatment or punishment: Provided, That the accessory acts are done with the abuse of the official's public functions.
Any superior military, police or law enforcement officer or senior government official who issued an order to any lower ranking personnel to commit torture for whatever purpose shall be held equally liable as principals. The immediate commanding officer of the unit concerned of the AFP or the immediate senior public official of the PNP and other law enforcement agencies shall be held liable as a principal to the crime of torture or other cruel or inhuman and degrading treatment or punishment for any act or omission, or negligence committed by him/her that shall have led, assisted, abetted or allowed, whether directly or indirectly, the commission thereof by his/her subordinates. If he/she has knowledge of or, owing to the circumstances at the time, should have known that acts of torture or other cruel, inhuman and degrading treatment or punishment shall be committed, is being committed, or has been committed by his/her subordinates or by others within his/her area of responsibility and, despite such knowledge, did not take preventive or corrective action either before, during or immediately after its commission, when he/she has the authority to prevent or investigate allegations of torture or other cruel, inhuman and degrading treatment or punishment but failed to prevent or investigate allegations of such act, whether deliberately or due to negligence shall also be liable as principals.
Title III. Crimes against Public Order (1) Article 134 - Rebellion/Insurrection (2) Article 134-A - Coup d’État (3) Article 135 - Penalty for Rebellion, Insurrection or Coup d’État (4) Article 136 - Conspiracy and Proposal to Commit Coup d’État, Rebellion or Insurrection (5) Article 137 - Disloyalty of Public Officers or Employees (6) Article 138 - Inciting to Rebellion or Insurrection (7) Article 139 – Sedition (8) Article 141 - Conspiracy to Commit Sedition (9) Article 142 – Inciting to Sedition (10) Article 140 - Persons Liable for Sedition 160
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(11) Article 143 - Acts Tending to Prevent the Meeting of the Congress of the Philippines and Similar Bodies (12) Article 144 - Disturbance of Proceedings (13) Article 145 - Violation of Parliamentary Immunity (14) Article 146 - Illegal Assemblies (15) Article 147 - Illegal Associations (16) Article 148 - Direct Assault (17) Article 149 - Indirect Assault (18) Article 150 - Disobedience to Summons Issued by Congress, Its Committees or Subcommittees, by the Constitutional Commissions, Its Committees, Subcommittees or Divisions (19) Article 153 - Tumults and Other Disturbances of Public Order (20) Article 151 Resistance and Disobedience to a Person in Authority or the Agents of Such Persons (21) Article 154 - Unlawful Use of Means of Publication and Unlawful Utterances (22) Article 156 - Delivering Persons from Jail (23)Article 155 - Alarms and Scandals (24) Article 157 - Evasion of Service of Sentence (25) Article 159 - Other Cases of Evasion of Service of Sentence (26) Article 158 - Evasion of Service of Sentence on the Occasion of Disorders, Conflagrations, Earthquakes, or Other Calamities (27) Article 160 - Quasi Recidivism
(i) To remove from the allegiance to the government or its laws the Philippine territory or any part thereof, or any body of land, naval, or other armed forces; or (ii) To deprive the Chief Executive or Congress, wholly or partially, of any of their powers or prerogatives. Rule on Complexing of Rebellion: Rebellion cannot be complexed with, but absorbs other crimes committed in furtherance of rebellion. There is no complex crime of rebellion with murder and other common crimes. The doctrine laid down in People v. Hernandez remains good law. This prohibits the complexing of rebellion with any other offense committed in the occasion thereof, either as a means to its commission or as an unintended effect of an activity that constitutes rebellion. [Enrile vs. Salazar (1990)] All crimes, whether punishable under special or general law, which are mere components or ingredients, or committed in furtherance thereof, become absorbed in the crime of rebellion and cannot be isolated and charged as separate crimes themselves. [Enrile vs. Amin (1990)] Both motive and overt acts are essential components of the crime of rebellion. If the political motive of a supposedly rebellious act cannot be sufficiently proven, the accused should be convicted of the common crime (e.g. murder) and not of rebellion.
CHAPTER I. REBELLION, COUP D’ETAT, SEDITION AND DISLOYALTY ARTICLE 134 /INSURRECTION
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Rebellion is not covered by Art. 2 on extraterritorial jurisdiction. [People v. Lovedioro (1995)]
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ARTICLE 134-A - COUP D’ÉTAT
Rebellion vs. Insurrection Rebellion
Insurrection
Object is to completely overthrow and supplant the existing government
A movement seeking to effect some change of minor importance or to prevent the exercise of governmental authority with respect to particular matters or subjects
Elements: (a) Offender is a person or persons belonging to the military or police or holding any public office or employment; (b) It is committed by means of a swift attack accompanied by violence, intimidation, threat, strategy or stealth; (c) The attack is directed against the duly constituted authorities of the Republic of the Philippines, or any military camp or installation, communication networks, public utilities or other facilities needed for the exercise and continued possession of power; (d) The purpose of the attack is to seize or diminish state power.
Rebellion vs. Treason Rebellion
Treason
The levying of war against the government during peace time for any purpose mentioned in Art. 134
The levying of war against the government would constitute treason when performed to aid the enemy; it would also constitute adherence to the enemy, giving him aid and comfort
Persons who may commit coup d’état: (1) It may be committed singly or collectively (2) Requires as a principal offender a member of the AFP, PNP, or a public officer with or without civilian support
Always involves taking Mere adherence to the up arms against the enemy giving him aid government. and comfort
Coup d’état, when considered as Terrorism A person who commits an act punishable as coup d’état under Article 134-A of the Revised Penal Code, including acts committed by private persons, thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism.
Note: No crime of misprision of rebellion. Rebellion vs. Sedition Rebellion
CRIMINAL LAW
Sedition
There must be taking It is sufficient that the up of arms against the public uprising be government. tumultuous.
ARTICLE 135 - PENALTY FOR REBELLION, INSURRECTION OR COUP D’ÉTAT
The purpose is always The purpose may be political. political or social.
Persons liable for rebellion, insurrection or coup d’état (1) The leaders: (a) Any person who promotes, maintains or heads a rebellion or insurrection; or
Note: When any of the objectives of rebellion is pursued but there is no public uprising in the legal sense, the crime is direct assault of the first form.
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(b) Any person who leads, directs or commands others to undertake a coup d’état; (2) The participants: (a) Any person who participates or executes the commands of others in rebellion or insurrection; (b) Any person in the government service who participates or executes directions or commands of others in undertaking a coup d’état; (c) Any person not in the government service who participates, supports, finances, abets or aids in undertaking a coup d’état. (d) If under the command of unknown leaders, any person who directed the others, spoke for them, signed receipts and other documents issued in their name on behalf of the rebels shall be deemed a leader.
CRIMINAL LAW
Mode 2: Proposal to commit coup d’état, rebellion or insurrection Elements: (a) A person has decided to swiftly attack or to rise publicly and take arms against the Government for any of the purposes of rebellion or insurrection; (b) Such person proposes its execution to some other person or persons.
ARTICLE 137 - DISLOYALTY OF PUBLIC OFFICERS OR EMPLOYEES Elements: (a) Offender is a public officer or employee; (b) Offender commits any of the following acts: (i) Failing to resist a rebellion by all the means in their power; (ii) Continuing to discharge the duties of their offices under the control of the rebels (iii) Accepting appointment to office under them.
It is not a defense in rebellion that the accused never took the oath of allegiance to, or that they never recognized the Government. [US vs. del Rosario]
The crime presupposes rebellion committed by other persons. Offender must not be in conspiracy with the rebels, otherwise, he is himself guilty of rebellion.
Mere silence or omission is not punishable in rebellion. [US vs. Ravidas]
ARTICLE 136 - CONSPIRACY AND PROPOSAL TO COMMIT COUP D’ ÉTAT, REBELLION OR INSURRECTION
ARTICLE 138 - INCITING TO REBELLION OR INSURRECTION Elements: (a) Offender does not take arms or is not in open hostility against the government; (b) He incites others to the execution of any of the acts of rebellion; (c) The inciting is done by means of speeches, proclamations, writings, emblems, banners or other representations tending to the same end.
Mode 1: Conspiracy to commit coup d’état, rebellion or insurrection Elements: (a) Two or more persons come to an agreement to swiftly attack or to rise publicly and take arms against the Government for any of the purposes of rebellion or insurrection; (b) They decide to commit it.
Note: There is no crime of inciting to treason.
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Inciting to Rebellion vs. Proposal to Commit Rebellion Proposal to Commit Inciting to Rebellion Rebellion
CRIMINAL LAW the national government of all its property or any part thereof
Tumultuous - If caused by more than three persons who are armed or provided with the means of violence. [Art. 163]
The offender induces another to commit rebellion. Rebellion should not be actually committed by the persons to whom it is proposed or who are incited. Otherwise, they become principals by inducement in the crime of rebellion.
The purpose of this crime is not the overthrowing of the government but the violation of public peace.
The person who There is no need that proposes has decided the offender has to commit rebellion. decided to commit rebellion.
Public uprising and an object of sedition must concur Under R.A. 8294 (Act Amending PD No. 1866 or the Firearms Law), sedition absorbs the use of unlicensed firearm as an element thereof; hence, it is not an aggravating circumstance, and the offender can no longer be prosecuted for illegal possession of firearm. [Boado, Comprehensive
The person who The act of inciting is proposes the execution done publicly. of the crime uses secret means.
ARTICLE 139 - SEDITION Elements: (a) Offenders rise publicly and tumultuously; (b) Offenders employ force, intimidation, or other means outside of legal methods; (c) Purpose is to attain any of the following objects: (i) To prevent the promulgation or execution of any law or the holding of any popular election; (ii) To prevent the national government or any provincial or municipal government or any public officer from exercising its or his functions, or prevent the execution of an administrative order; (iii) To inflict any act of hate or revenge upon the person or property of any public officer or employee; (iv) To commit, for any political or social end, any act of hate or revenge against private persons or any social classes; (v) To despoil for any political or social end, any person, municipality or province, or
Conspiracy
Proposal
When two or more persons come to an agreement to rise publicly and take arms against government for any of the purposes of rebellion and decide to commit it
When the person who has decided to rise publicly and take arms against the government for any of the purposes of rebellion proposes its execution to some other person or persons
Reviewer in Criminal Law] If the violation of RA 10591 (Comprehensive Firearms and Ammunition Regulation Act) is in furtherance of, or incident to, or in connection with the crime of rebellion of insurrection, or attempted coup d’état, such violation shall be absorbed as an element of the crime of rebellion or insurrection, or attempted coup d’état [Sec. 29, RA 10591]
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ARTICLE 141 - CONSPIRACY TO COMMIT SEDITION
Sedition vs. Rebellion Sedition
CRIMINAL LAW
Rebellion
There must be a public uprising.
Elements: (a) Two or more persons come to an agreement and a decision to rise publicly and tumultuously to attain any of the objects of sedition; (b) They decide to commit it.
It is sufficient that the There must be taking public uprising is up of arms against the tumultuous. government. The purpose of the The purpose of the offenders may be offenders is always political or social political.
Note: There is no proposal to commit sedition. Sedition vs. Coup d’état
ARTICLE 142 – INCITING TO SEDITION
Sedition
Coup d’état
There is no distinction as to who may commit; a private individual may commit the offense
Offender belongs to the military or police or holding any public office or employment
Mode1. Inciting others to the accomplishment of any of the acts which constitute sedition by means of speeches, proclamations, writings, emblems, etc.
Primary purpose is to To seize or to diminish disturb public peace state power
Elements: (a) Offender does not take direct part in the crime of sedition; (b) He incites others to the accomplishment of any of the acts which constitute sedition by means of speeches, proclamations, writings, emblems, cartoons, banners, or other representations tending towards the same end.
Sedition vs. Treason Sedition
Treason
It is the raising of It is the violation by a commotions or subject of his disturbances in the allegiance to his State. sovereign.
Mode 2. Uttering seditious words or speeches which tend to disturb the public peace;
In one case, a friction between the Philippine constabulary and the Manila police escalated and resulted in the deaths of 6 policemen and 2 civilians and in the serious injuries of 3 civilians. The Court held that unlike the crime of rebellion, common crimes committed in the occasion of sedition are to be appreciated as separate crimes. [People vs. Cabrera (1922)]
Mode 3. Writing, publishing, or circulating scurrilous libels against the government or any of the duly constituted authorities thereof, which tend to disturb the public peace. Elements: (a) Offender does not take part in the crime of sedition. (b) He uttered words or speeches and writing, publishing or circulating scurrilous libels and that
ARTICLE 140 - PERSONS LIABLE FOR SEDITION (1) The leader of the sedition; (2) Other person participating in the sedition 165
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(i) Tend to disturb or obstruct any lawful officer in conducting the functions of his office; (ii) Tend to instigate others to cabal and meet together for unlawful purposes; (iii) Suggest or incite rebellious conspiracies or riots; or (iv) Lead or tend to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the government
CRIMINAL LAW
[Espuelas vs. People, supra] Constitutional Tests relative to seditious words: Clear and Present Danger Rule: The words must be of such nature that by uttering them there is a danger of a public uprising and that such danger should be both clear and imminent. The danger must not only be probable but very likely inevitable. Dangerous Tendency Rule: If the words used tend to create a danger of public uprising, then those words could properly be the subject of a penal clause
Considering that the objective of sedition is to express protest against the government and in the process creating hate against public officers, any act that will generate hatred against the government or a public officer concerned or a social class may amount to Inciting to Sedition.
CHAPTER II - CRIMES AGAINST POPULAR REPRESENTATION ARTICLE 143 - ACTS TENDING TO PREVENT THE MEETING OF THE CONGRESS OF THE PHILIPPINES AND SIMILAR BODIES
The essence of seditious libel is its immediate tendency to stir up general discontent to the pitch of illegal courses or to induce people to resort to illegal methods in order to redress the evils which press upon their minds. [Espuelas vs. People]
Elements: (a) There is a projected or actual meeting of Congress or any of its committees or subcommittees, constitutional committees or divisions thereof, or of any provincial board or city or municipal council or board; (b) Offender, who may be any person, prevents such meetings by force or fraud.
Scurrilous - low, vulgar, mean or foul A published writing which calls the government one of crooks and dishonest persons ("dirty") infested with Nazis and Fascists i.e. dictators, and which reveals a tendency to produce dissatisfaction or a feeling incompatible with the disposition to remain loyal to the government, is a scurrilous libel against the Government.
Nobody has the right to dissolve by means of violence the meeting of a municipal council, under the pretext that said meeting is legally defective, when the defect is not manifest, and requires an investigation before its existence can be determined. Where a municipal council is holding a meeting, a presumption arises that the meeting is not legally defective [People vs. Alipit and Alemus]
Any citizen may criticize his government and government officials and submit his criticism to the "free trade of ideas." However, such criticism should be specific and therefore constructive specifying particular objectionable actuations of the government; it must be reasoned or tempered, and not a contemptuous condemnation of the entire government setup 166
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ARTICLE 144 PROCEEDINGS
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DISTURBANCE
OF
Mode 2: Arresting or searching any member thereof while Congress is in regular or special session, except in case such member has committed a crime punishable under the Code by a penalty higher than prision mayor.
Elements: (a) There is a meeting of Congress or any of its committees or subcommittees, constitutional commissions or committees or divisions thereof, or of any provincial board or city or municipal council or board; (b) Offender does any of the following acts: (i) He disturbs any of such meetings; (ii) He behaves while in the presence of any such bodies in such a manner as to interrupt its proceedings or to impair the respect due it.
Elements: (a) Offender is a public officer of employee; (b) He arrests or searches any member of Congress; (c) Congress, at the time of arrest or search, is in regular or special session; (d) The member arrested or searched has not committed a crime punishable under the Code by a penalty higher than prision mayor. Parliamentary immunity does not protect members of Congress from responsibility in accordance with the disciplinary rules of Congress itself.
Complaint may be filed by a member of the legislative body. One who disturbs may also be punished for contempt by Congress.
ARTICLE 145 VIOLATION PARLIAMENTARY IMMUNITY
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OF
Members of Congress cannot be arrested for offenses punishable by a penalty less than prision mayor (6 years and 1 day to 12 years), while Congress is in session. They can be prosecuted after Congress adjourns. [1987 Constitution]
Mode 1: Using force, intimidation, threats, or frauds to prevent any member of Congress from attending the meetings of Congress or of any of its committees or subcommittees, constitutional commissions or committees or divisions thereof, or from expressing his opinion or casting his vote;
To be consistent with the 1987 Constitution, the phrase by “a penalty higher than prision mayor” in Article 145 should be amended to read “by the penalty of prision mayor or higher.” [Reyes, 2012]
Elements: (a) Offender uses force, intimidation, threats or fraud; (b) The purpose of the offender is to prevent any member of Congress from: (i) Attending the meetings of the Congress or of any of its committees or constitutional commissions; (ii) Expressing his opinion; or (iii) Casting his vote.
CHAPTER III – ILLEGAL ASSEMBLIES AND ASSOCIATIONS ARTICLE 146 - ILLEGAL ASSEMBLIES Mode 1: Any meeting attended by armed persons for the purpose of committing any of the crimes punishable under the Code;
Note: Offender in mode 1 is any person
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Elements: (a) There is a meeting, a gathering or group of persons, whether in a fixed place or moving; (b) The meeting is attended by armed persons; (c) The purpose of the meeting is to commit any of the crimes punishable under the Code.
ARTICLE 147 - ILLEGAL ASSOCIATIONS
Mode 2: Any meeting in which the audience, whether armed or not, is incited to the commission of the crime of treason, rebellion or insurrection, sedition, or assault upon person in authority or his agents.
Persons liable: (1) Founders, directors and president of the association; (2) Mere members of the association.
(1) Associations totally or partially organized for the purpose of committing any of the crimes punishable under the Code; (2) Associations totally or partially organized for some purpose contrary to public morals.
Public Morals – matters which affect the interest of society and public convenience, not limited to good customs
Elements: (a) There is a meeting, a gathering or group of persons, whether in a fixed place or moving; (b) The audience, whether armed or not, is incited to the commission of the crime of treason, rebellion or insurrection, sedition or direct assault.
Illegal Assemblies vs. Illegal Associations Illegal Assembly There must be actual meeting assembly
Persons liable for illegal assembly: (1) The organizer or leaders of the meeting; (2) Persons merely present at the meeting, who must have a common intent to commit the felony of illegal assembly.
Illegal Association an Actual meeting or necessary
not
What is punished are What is punished is the the meeting and the act of forming or attendance therein organizing the association Persons liable: Persons liable: (1) organizers or (1) founders, directors, leaders of the president meeting (2) members (2) persons present at the meeting
In the first form of illegal assembly, the persons present at the meeting must be armed. But the law does not require that all the persons present must be armed. The unarmed persons present at the meeting are also liable. Presumptions if a person carried an unlicensed firearm: (1) The purpose of the meeting insofar as he is concerned is to commit acts punishable under the RPC (2) He is considered a leader or organizer of the meeting.
BP 880 - PUBLIC ASSEMBLY ACT OF 1985 Sec. 9. Non-interference by law enforcement authorities - Law enforcement agencies shall not interfere with the holding of a public assembly. However, to adequately ensure public safety, a law enforcement contingent under the command of a responsible police officer may be detailed and stationed in a place at least one hundred (100) meter away from the
Note: Not all persons present at the meeting of the first form of illegal assembly must be armed.
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area of activity ready to maintain peace and order at all times.
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leaders of the public assembly and ask the latter to prevent any possible disturbance; (b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the police or at the non-participants, or at any property causing damage to such property, the ranking officer of the law enforcement contingent shall audibly warn the participants that if the disturbance persists, the public assembly will be dispersed; (c) If the violence or disturbances prevailing as stated in the preceding subparagraph should not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a warning to the participants of the public assembly, and after allowing a reasonable period of time to lapse, shall immediately order it to forthwith disperse; (d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he violates during the assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as amended: (e) Isolated acts or incidents of disorder or branch of the peace during the public assembly shall not constitute a group for dispersal.
Sec. 10. Police assistance when requested - It shall be imperative for law enforcement agencies, when their assistance is requested by the leaders or organizers, to perform their duties always mindful that their responsibility to provide proper protection to those exercising their right peaceably to assemble and the freedom of expression is primordial. Towards this end, law enforcement agencies shall observe the following guidelines: (a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with their nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform and must observe the policy of "maximum tolerance" as herein defined; (b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards; (c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public assembly is attended by actual violence or serious threats of violence, or deliberate destruction of property.
Sec. 12. Dispersal of public assembly without permit - When the public assembly is held without a permit where a permit is required, the said public assembly may be peacefully dispersed.
Sec. 11. Dispersal of public assembly with permit No public assembly with a permit shall be dispersed. However, when an assembly becomes violent, the police may disperse such public assembly as follows:
Sec. 13. Prohibited acts - The following shall constitute violations of this Act:
(a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention of the
(a) The holding of any public assembly as defined in this Act by any leader or organizer without having first secured that written permit where a permit is required 169
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ARTICLE 148 - DIRECT ASSAULT
from the office concerned, or the use of such permit for such purposes in any place other than those set out in said permit: Provided, however, That no person can be punished or held criminally liable for participating in or attending an otherwise peaceful assembly; (b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of this Act by the mayor or any other official acting in his behalf. (c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application for a permit by the mayor or any official acting in his behalf; (d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly; (e) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public assembly; (f) Acts in violation of Section 10 hereof; (g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public assembly or on the occasion thereof: (1) the carrying of a deadly or offensive weapon or device such as firearm, pillbox, bomb, and the like; (2) the carrying of a bladed weapon and the like; (3) the malicious burning of any object in the streets or thoroughfares; (4) the carrying of firearms by members of the law enforcement unit; (5) the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle, its horns and loud sound systems.
Mode 1. Without public uprising, by employing force or intimidation for the attainment of any of the purposes enumerated in defining the crimes of rebellion and sedition; Elements: (a) Offender employs force or intimidation; (b) The aim of the offender is to attain any of the purposes of the crime of rebellion or any of the objects of the crime of sedition; (c) There is no public uprising. Mode 2. Without public uprising, by attacking, by employing force or by seriously intimidating or by seriously resisting any person in authority or any of his agents, while engaged in the performance of official duties, or on occasion of such performance. Elements: (a) Offender makes an attack, employs force, makes a serious intimidation, or makes a serious resistance; (b) The person assaulted is a person in authority or his agent; (c) At the time of the assault, the person in authority or his agent is engaged in the actual performance of official duties, or that he is assaulted by reason of the past performance of official duties; (d) Offender knows that the one he is assaulting is a person in authority or his agent in the exercise of his duties. (e) There is no public uprising. The first form of direct assault is tantamount to rebellion or sedition, except that there is no public uprising.
CHAPTER IV - ASSAULT UPON AND RESISTANCE AND DISOBEDIENCE TO, PERSONS IN AUTHORITY AND THEIR AGENTS
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(1) There is a weapon employed in the attack (2) The offender is a public officer (3) The offender lays hands on a public authority
rank. [Boado, Criminal Law]
CRIMINAL LAW Comprehensive
Reviewer
in
Gabutero was acting in the performance of his duties [as he was trying to pacify Dollantes who was causing trouble] as barangay captain when he was stabbed to death. Thus, the crime committed was murder with assault upon a person in authority. [People vs. Dollantes (1987)]
“Person in authority” - any person directly vested with jurisdiction, whether as an individual or as a member of some court or governmental corporation, board, or commission, shall be deemed a person in authority.
ARTICLE 152 - PERSONS IN AUTHORITY AND AGENTS OF PERSONS IN AUTHORITY
“Directly vested with jurisdiction” - the power or authority to govern and execute the laws.
Public Officer (Art. 203)
Teachers, professors and persons in charge with the supervision of public or duly recognized private schools, colleges and universities shall be deemed persons in authority, in applying the provisions of Articles 148 and 151. For other purposes, such as to increase the penalty by reason of the aggravating circumstances where a person in authority is involved, the teachers and professors are not persons in authority.
Any person who takes part in the performance of public functions in the government.
When the assault results in the killing of that agent or of a person in authority, the offense committed is complex crime of direct assault with murder or homicide. The only time when it is not complexed is when material consequence is a light felony, that is, slight physical injury. Direct assault absorbs the lighter felony. The force employed need not be serious when the offended party is a person in authority;
Agents of a Persons in Person in Authority (Art. Authority (Art. 152) 152) Any person directly vested with jurisdiction, whether as an individual or as a member of some court or governmental corporation, board or commission.
Any person who, by direct provision of law or by election or by appointment by competent authority, is charged with the maintenance of public order and the protection and security of life and property.
Intimidation or resistance must be serious whether the offended party is a person in authority or an agent of a person in authority.
Teachers, lawyers and heads of schools recognized by government are persons in authority only for purposes of Art. 152 in relation to Arts. 148 and 151, and in connection with their duties.
If the public officer is not a person in authority, the assault on him is an aggravating circumstance in Art. 14, no. 3 (rank). There must be, however, intent to disregard the victim’s
A person in authority includes a barangay chairman and members of the Lupong Tagapagkasundo as provided under the Local Government Code. [Boado]
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The status as a person in authority being a matter of law, ignorance thereof is no excuse.
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Article 152 clothes any person who comes to the aid of a person in authority with the fiction of an agent of a person in authority.
Where a barangay chief tanod was a mere bystander at the crime scene, he not acting, and had no occasion to act, in the performance of his official duties, the attack on him did not amount to direct assault [People vs. Recto, 2001]
Any assault on him on the occasion of his aiding a person in authority or his agent is indirect assault.
ARTICLE 150 - DISOBEDIENCE TO SUMMONS ISSUED BY CONGRESS, ITS COMMITTEES OR SUBCOMMITTEES, BY THE CONSTITUTIONAL COMMISSIONS, ITS COMMITTEES, SUBCOMMITTEES OR DIVISIONS
Gelig vs. People, 2010 Facts: Accused was charged with the complex crime of direct assault with unintentional homicide when she confronted her son’s teacher for calling her son names and pushed her, causing her to fall and hit a wall divider. Two days later the teacher suffered abdominal pains and was found to have suffered incomplete abortion.
Mode 1. By refusing, without legal excuse, to obey summons of Congress, its special or standing committees and subcommittees, the Constitutional Commissions and its committees, subcommittees or divisions, or by any commission or committee chairman or member authorized to summon witnesses;
Held: Accused only liable for direct assault. While the medical certificate of the teacher’s attending physician was presented to the court to prove that she suffered an abortion, there is no data in the document to prove that her medical condition was a direct consequence of the incident; It was therefore vital for the prosecution to present the doctor since she was competent to establish a link, if any, between assault and abortion; Without her testimony, there is no way to ascertain the exact effect of the assault on the abortion
Mode 2. By refusing to be sworn or placed under affirmation while being before such legislative or constitutional body or official; Mode 3. By refusing to answer any legal inquiry or to produce any books, papers, documents, or records in his possession, when required by them to do so in the exercise of their functions;
ARTICLE 149 - INDIRECT ASSAULT Elements: (a) A person in authority or his agent is the victim of any of the forms of direct assault defined in Article 148; (b) A person comes to the aid of such authority or his agent; (c) Offender makes use of force or intimidation upon such person coming to the aid of the authority or his agent.
Mode 4. By restraining another from attending as a witness in such legislative or constitutional body; Mode 5. By inducing disobedience to a summons or refusal to be sworn by any such body or official.
Indirect assault can only be committed when a direct assault is also committed. 172
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The testimony of a person summoned must be upon matters into which the legislature has jurisdiction to inquire.
Serious Disobedience vs. Direct Assault Serious Disobedience
Direct Assault
Person in authority or Person in authority or his agent must be in his agent must be actual performance of engaged in the his duties performance of official duties or he is assaulted by reason of the past performance of official duties
ARTICLE 151 - RESISTANCE AND DISOBEDIENCE TO A PERSON IN AUTHORITY OR THE AGENTS OF SUCH PERSONS Mode 1: Resistance and serious disobedience Elements: (a) A person in authority or his agent is engaged in the performance of official duty or gives a lawful order to the offender; (b) Offender resists or seriously disobeys such person in authority or his agent; (c) The act of the offender is not included in the provision of Articles 148, 149 and 150. Mode 2:
CRIMINAL LAW
Committed only by Committed in four resisting or seriously ways (see Art. 148, disobeying a person in Mode 2 above) authority or his agent Use of force in There is resistance is not so employed serious
Simple disobedience
force
CHAPTER V - PUBLIC DISORDERS
Elements: (a) An agent of a person in authority is engaged in the performance of official duty or gives a lawful order to the offender; (b) Offender disobeys such agent of a person in authority; (c) Such disobedience is not of a serious nature.
ARTICLE 153 - TUMULTS AND OTHER DISTURBANCES OF PUBLIC ORDER Mode 1: Causing any serious disturbance in a public place, office or establishment; Mode 2: Interrupting or disturbing performances, functions or gatherings, or peaceful meetings, if the act is not included in Arts. 131 and 132; Mode 3: Making any outcry tending to incite rebellion or sedition in any meeting, association or public place; Mode 4: Displaying placards or emblems which provoke a disturbance of public order in such place; Mode 5: Burying with pomp the body of a person who has been legally executed.
Resistance and Serious Disobedience The accused must have knowledge that the person giving the order is a peace officer. [US vs. Bautista] The disobedience contemplated consists in the failure or refusal to obey a direct order from the authority or his agent. Simple Disobedience In simple disobedience, the offended party must be only an agent of a person in authority. The order must be lawful. The disobedience should not be of a serious nature.
Serious disturbance must be planned or intended. This article applies if the disturbance is not caused by a public officer; or, if it is
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committed by a public officer, he is a participant therein.
Mode 4:
Outcry – to shout subversive or provocative words tending to stir up the people to obtain by means of force or violence any of the objects of rebellion or sedition.
CRIMINAL LAW Printing, publishing or distributing (or causing the same) books, pamphlets, periodicals, or leaflets which do not bear the real printer’s name, or which are classified as anonymous.
To be liable, the offender must know that the news is false.
If done unconsciously or without intent to incite the listeners to rise to sedition or rebellion, this article applies.
Actual public disorder or actual damage to the credit of the State is not necessary. The mere possibility of causing such danger or damage is sufficient.
If done with intent to commit rebellion or sedition: The crime is inciting to rebellion or sedition.
ARTICLE 155 - ALARMS AND SCANDALS Tumultuous – if caused by more than 3 persons who are armed or provided with the means of violence
Mode 1:
Burying with pomp the body of a person – ostentatious display of a burial Mode 2:
ARTICLE 154 - UNLAWFUL USE OF MEANS OF PUBLICATION AND UNLAWFUL UTTERANCES Mode 1.
Mode 2.
Mode 3:
Mode 3:
Publishing or causing to be published, by means of printing, lithography or any other means of publication, as news any false news which may endanger the public order, or cause damage to the interest or credit of the State. Encouraging disobedience to the law or to the constituted authorities or praising, justifying or extolling any act punished by law, by the same means or by words, utterances or speeches; Maliciously publishing or causing to be published any official document or resolution without proper authority, or before they have been published officially
Mode 4:
Discharging any firearm, rocket, firecracker, or other explosive within any town or public place, calculated to cause (which produces) alarm or danger; Instigating or taking an active part in any charivari or other disorderly meeting offensive to another or prejudicial to public tranquility; Disturbing the public peace while wandering about at night or while engaged in any other nocturnal amusements; Causing any disturbances or scandal in public places while intoxicated or otherwise, provided Art. 153 is not applicable.
The crime “alarms and scandal” is only one crime. Scandal here does not refer to moral scandal; that one is grave scandal in Article 200. The essence of the crime is disturbance of public tranquility and public peace. Disturbance of serious nature falls under Article 153, not under paragraph 4 of this article. 174
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CRIMINAL LAW
when he is not the custodian of the prisoner at the time the prisoner was made to escape. If the offender is a public officer who had the prisoner in his custody or charge, he is liable for infidelity in the custody of a prisoner under Article 223.
Any kind of disturbance of public order where the circumstance at the time renders the act offensive to the tranquility prevailing, the crime is committed. Charivari – includes a medley of discordant voices, a mock serenade of discordant noises made on kettles, tin, horns, etc. designed to annoy or insult
If three persons are involved – a stranger, the custodian and the prisoner – three crimes are committed: (1) Infidelity in the custody of prisoners [public officer-custodian]; (2) Delivery of the prisoner from jail [stranger]; and (3) Evasion of service of sentence [prisoner].
Note: “Calculated to cause” should be “which produces” alarm and danger according to the correct translation of the RPC. Hence, the result, and not the intent, that counts. [Reyes]
Cledera, as the governor, is the jailer of the Province. Esmeralda is the Assistant Provincial Warden. As public officials who have the custody or charge of the prisoner, they cannot be prosecuted under Art. 156.
ARTICLE 156 - DELIVERING PRISONERS FROM JAIL Elements: (a) There is a person confined in a jail or penal establishment; (b) Offender removes therefrom such person, or helps the escape of such person.
Art 223 would have applied; however, there is no sufficient evidence to warrant their prosecution for infidelity in the custody of prisoner. It is necessary that the public officer had consented to, or connived in, the escape of the prisoner under his custody or charge. [Alberto v. Dela Cruz (1980)]
If the prisoner who escapes is only a detention prisoner, he does not incur liability from escaping if he does not know of the plan to remove him from jail. But if such prisoner knows of the plot to remove him from jail and cooperates therein by escaping, he himself becomes liable for delivering prisoners from jail as a principal by indispensable cooperation.
CHAPTER VI - EVASION OF SERVICE OF SENTENCE ARTICLE 157 - EVASION OF SERVICE OF SENTENCE
If the prisoner removed or whose escape is made possible by the commission of the crime of delivering prisoner from jail is a detention prisoner, such prisoner is not criminally liable. A prisoner is criminally liable for leaving the penal institution only when there is evasion of the service of his sentence which can be committed only by a convict by final judgment.
Elements: (a) Offender is a convict by final judgment; (b) He is serving sentence which consists in the deprivation of liberty; (c) He evades service of his sentence by escaping during the term of his imprisonment.
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Qualifying circumstances as to penalty imposed if such evasion or escape takes place: (1) By means of unlawful entry (this should be “by scaling” - Reyes); (2) By breaking doors, windows, gates, walls, roofs or floors; (3) By using picklock, false keys, disguise, deceit, violence or intimidation; or (4) Through connivance with other convicts or employees of the penal institution.
CRIMINAL LAW
One who, sentenced to destierro by virtue of final judgment, and prohibited from entering the City of Manila, enters said' city within the period of his sentence, is guilty of evasion of sentence under Article 157. [People vs. Abilong]
ARTICLE 158 - EVASION OF SERVICE OF SENTENCE ON THE OCCASION OF DISORDERS, CONFLAGRATIONS, EARTHQUAKES, OR OTHER CALAMITIES
Evasion of service of sentence has three forms: (1) By simply leaving or escaping from the penal establishment under Article 157; (2) Failure to return within 48 hours after having left the penal establishment because of a calamity, conflagration or mutiny and such calamity, conflagration or mutiny has been announced as already passed under Article 158; (3) Violating the condition of conditional pardon under Article 159.
Elements: (a) Offender is a convict by final judgment, who is confined in a penal institution; (b) There is disorder, resulting from – (i) conflagration; (ii) earthquake; (iii) explosion; (iv) similar catastrophe; or (v) mutiny in which he has not participated; (c) He evades the service of his sentence by leaving the penal institution where he is confined, on the occasion of such disorder or during the mutiny; (d) He fails to give himself up to the authorities within 48 hours following the issuance of a proclamation by the Chief Executive announcing the passing away of such calamity.
In leaving or escaping from jail or prison, that the prisoner immediately returned is immaterial. It may be mitigating, but it will not absolve his criminal liability. Not applicable to sentence executed by deportation because the convict was not sentenced to imprisonment and thereafter broke jail.
Leaving the penal establishment is not the basis of criminal liability. What is punished is the failure to return within 48 hours after the passing of the calamity, conflagration or mutiny had been announced.
Applicable to sentence of destierro - Inasmuch as the Revised Penal Code was originally approved and enacted in Spanish, the Spanish text governs. The word "imprisonment" used in the English text is a wrong or erroneous translation of the phrase "sufriendo privacion de libertad" used in the Spanish text. Although destierro does not constitute imprisonment, it is a deprivation of liberty, though partial, in the sense that as in the present case, the appellant by his sentence of destierro was deprived of the liberty to enter the City of Manila.
Under Article 158, those who return within 48 hours are given credit or deduction from the remaining period of their sentence equivalent to 1/5 of the original term of the sentence. If the prisoner fails to return within said 48 hours, there will be an additional penalty of 1/5 of the time still remaining to be served under 176
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the original sentence. In no case shall that penalty exceed six months.
public order; merely an infringement of the stipulated terms in conditional pardon
Mutiny is one of the causes which may authorize a convict serving sentence in the penitentiary to leave the jail provided he has not taken part in the mutiny.
thus defeat the purpose of the law of either reforming or punishing them for having disturbed the public order.
CHAPTER VII - COMMISSION OF ANOTHER CRIME DURING SERVICE OF PENALTY IMPOSED FOR ANOTHER PREVIOUS OFFENSE
ARTICLE 159 - OTHER CASES OF EVASION OF SERVICE OF SENTENCE Elements: (a) Offender was a convict; (b) He was granted a conditional pardon by the Chief Executive; (c) He violated any of the conditions of such pardon.
ARTICLE 160 - QUASI RECIDIVISM Elements: (a) Offender was already convicted by final judgment of one offense; (b) He committed a new felony before beginning to serve such sentence or while serving the same.
Violation of conditional pardon is a distinct crime. In violation of conditional pardon, as a rule, the violation will amount to this crime only if the condition is violated during the remaining period of the sentence.
Quasi-recidivism is a special aggravating circumstance where a person, after having been convicted by final judgment, shall commit a new felony before beginning to serve such sentence, or while serving the same. He shall be punished by the maximum period of the penalty prescribed by law for the new felony. The first crime for which the offender is serving sentence need not be a felony. [People vs. Peralta]
Offender must be found guilty of subsequent offense before he can be prosecuted under Article 159. [Torres vs. Gonzales] If the condition of the pardon is violated when the remaining unserved portion of the sentence has already lapsed, there will be no more criminal liability for the violation. However, the convict maybe required to serve the unserved portion of the sentence, that is, continue serving original penalty.
The word “another” does not mean that the new felony be different from the one for which the offender is serving sentence [People vs. Yabut, 1933]
Violation of Conditional Pardon vs. Evasion of Service of Sentence by Escaping Violation of Conditional Evasion of Service of Pardon Sentence Does not cause harm or injury to the right of another person nor does it disturb the
CRIMINAL LAW
Quasi-Recidivism
Recidivism
The 2 offenses need The 2 offenses must not be embraced in be embraced in the the same title of the same title of the Code Code
An attempt at least to evade the penalty inflicted by the courts upon criminals and 177
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CRIMINAL LAW 2 Reiteracion Offender must have served out the sentence for the prior offense
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If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. If the violation of this section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup d’état, such violation shall be absorbed as an element of the crime of rebellion, or insurrection, sedition, or attempted coup d’état.
SPECIAL LAWS PD 1866 AS AMENDED BY RA 8294: ILLEGAL POSSESSION OF FIREARMS
The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or firearms without any legal authority to be carried outside of their residence in the course of their employment.
Sec. 1. Unlawful manufacture, sale, acquisition, disposition or possession of firearms or ammunition or instruments used or intended to be used in the manufacture of firearms or ammunition.— The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed.
The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor.
The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested.
Sec. 2. Presumption of Illegal Manufacture of Firearms or Ammunition.— The possession of any machinery, tool or instrument used directly in the manufacture of firearms or ammunition, by any person whose business or employment does not lawfully deal with the manufacture of firearms or ammunition, shall be prima facie evidence that such article is intended to be used in the unlawful/illegal manufacture of firearms or ammunition. Sec. 3. Unlawful manufacture, sale, acquisition, disposition or possession of explosives. — The penalty of prision mayor in its maximum period 178
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to reclusion temporal and a fine of not less than Fifty thousand pesos (P50,000) shall be imposed upon any person who shall unlawfully manufacture, assemble, deal in, acquire, dispose or possess hand grenade(s), rifle grenade(s), and other explosives, including but not limited to 'pillbox,' 'molotov cocktail bombs,' 'fire bombs,' or other incendiary devices capable of producing destructive effect on contiguous objects or causing injury or death to any person.
CRIMINAL LAW
willfully and unlawfully manufacture, assemble, deal in, acquire, dispose, import or possess any part, ingredient, machinery, tool or instrument of any explosive or incendiary device, whether chemical, mechanical, electronic, electrical or otherwise, used or intended to be used by that person for its manufacture, construction, assembly, delivery or detonation, where the explosive or incendiary device is capable or is intended to be made capable of producing destructive effect on contiguous objects or causing injury or death to any person.
When a person commits any of the crimes defined in the Revised Penal Code or special laws with the use of the aforementioned explosives, detonation agents or incendiary devices, which results in the death of any person or persons, the use of such explosives, detonation agents or incendiary devices shall be considered as an aggravating circumstance.
Provided, That the mere possession of any part, ingredient, machinery, tool or instrument directly used in the manufacture, construction, assembly, delivery or detonation of any explosive or incendiary device, by any person whose business activity, or employment does not lawfully deal with the possession of such article shall be prima facie evidence that such article is intended to be used by that person in the unlawful/illegal manufacture, construction, assembly, delivery or detonation of an explosive or incendiary device.
If the violation of this Sec. is in furtherance of, or incident to, or in connection with the crime of rebellion, insurrection, sedition or attempted coup d'etat, such violation shall be absorbed as an element of the crimes of rebellion, insurrection, sedition or attempted coup d'etat.
Provided, however, That a temporary incidental, casual, harmless or transient possession or control of any part, machinery, tool or instrument directly used in the manufacture, construction, assembly, delivery or detonation of any explosive or incendiary device, without the knowledge of its existence or character as part, ingredient, machinery, tool or instrument directly used in the manufacture, construction, assembly, delivery or detonation of any explosive or incendiary device, shall not be a violation of this Section.
The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the explosives owned by such firm, company, corporation or entity, to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs Sec. 3-A. Unlawful Manufacture, Sales, Acquisition, Disposition, Importation or Possession of a Part, Ingredient, Machinery, Tool or Instrument Used or Intended to be Used for the Manufacture, Construction, Assembly, Delivery or Detonation.— The penalty of reclusion perpetua shall be imposed upon any person who shall
Provided, further, That the temporary, incidental, casual, harmless, or transient possession or control of any part, ingredient, machinery, tool or instrument directly used in the manufacture, construction, assembly, delivery or detonation of any explosive or 179
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incendiary device for the sole purpose of surrendering it to the proper authorities shall not be a violation of this Section.
CRIMINAL LAW
Rules of Court on double jeopardy, if the application thereof is more favorable to the accused, the conviction or acquittal of the accused or the dismissal of the case for violation of this Decree shall be a bar to another prosecution of the same accused for any offense where the violation of this Decree was a necessary means for committing the offense or in furtherance of which, incident to which, in connection with which, by reason of which, or on occasion of which, the violation of this Decree was committed, and vice versa.
Provided, finally, That in addition to the instances provided in the two (2) immediately preceding paragraphs, the court may determine the absence of the intent to possess, otherwise referred to as “animus possidendi”, in accordance with the facts and circumstances of each case and the application of other pertinent laws, among other things, Articles 11 and 12 of the Revised Penal Code, as amended.
Sec. 4. Responsibility and liability of Law Enforcement Agencies and Other Government Officials and Employees in Testifying as Prosecution Witnesses.— Any member of law enforcement agencies or any other government official and employee who, after due notice, fails or refuses, intentionally or negligently, to appear as a witness for the prosecution of the defense in any proceeding, involving violations of this Decree, without any valid reason, shall be punished with reclusion temporal and a fine of Five hundred Thousand pesos (P500,000.00) in addition to the administrative liability he/she may be meted out by his/her immediate superior and/or appropriate body.
Sec. 3-B. Penalty for the Owner, President, Manager, Director or Other Responsible Officer of Any Public or Private Firm, Company, Corporation or Entity.— The penalty of reclusion perpetua shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any explosive or incendiary device or parts thereof owned or controlled by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs. Sec. 3-C. Relationship of Other Crimes with a Violation of this Decree and the Penalty Therefor.— When a violation of Section 3, 3-A or 3-B of this Decree is a necessary means for committing any of the crimes defined in the Revised Penal Code or special laws, or is in furtherance of, incident to, in connection with, by reason of, or on occasion of any of the crimes defined in the Revised Penal Code or special laws, the penalty of reclusion perpetua and a fine ranging from One hundred Thousand pesos (P100,000.00) to One million pesos (P1,000,000.00) shall be imposed.
The immediate superior of the member of the law enforcement agency or any other government employee mentioned in the preceding paragraph shall be penalized with prision correccional and a fine of not less than Ten Thousand pesos (P10,000.00) but not more than Fifty thousand pesos (P50,000.00) and in addition, perpetual absolute disqualification from public office if despite due notice to them and to the witness concerned, the former does not exert reasonable effort to present the latter to the court. The member of the law enforcement agency or any other government employee mentioned in the preceding paragraphs shall not be
Sec. 3-D. Former Conviction or Acquittal; Double Jeopardy.— Subject to the provisions of the 180
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transferred or reassigned to any other government office located in another territorial jurisdiction during the pendency of the case in court. However, the concerned member of the law enforcement agency or government employee may be transferred or reassigned for compelling reasons: Provided, That his/her immediate superior shall notify the court where the case is pending of the order to transfer or reassign, within twenty-four (24) hours from its approval: Provided, further, That his/her immediate superior shall be penalized with prision correccional and a fine of not less than Ten thousand pesos (P10,000.00) but not more than Fifty thousand pesos (P50,000.00) and in addition, perpetual absolute disqualification from public office, should he/she fail to notify the court of such order to transfer or reassign.
CRIMINAL LAW
Sec. 5. Tampering of Firearm’s Serial Number.— The penalty of prision correccional shall be imposed upon any person who shall unlawfully tamper, change, deface or erase the serial number of any firearm. Sec. 6. Repacking or Altering the Composition of Lawfully Manufactured Explosives.— The penalty of prision correccional shall be imposed upon any person who shall unlawfully repack, alter or modify the composition of any lawfully manufactured explosives. Sec. 7. Unauthorized Issuance of Authority to Carry Firearm and/or Ammunition Outside of Residence.— The penalty of prision correccional shall be imposed upon any person, civilian or military, who shall issue authority to carry firearm and/or ammunition outside of residence, without authority therefor.
Prosecution and punishment under this Section shall be without prejudice to any liability for violation of any existing law.
COMPREHENSIVE FIREARMS AMMUNITION REGULATION ACT
Sec. 4-A. Criminal Liability for Planting of Evidence.— Any person who is found guilty of “planting” any explosive or incendiary device or any part, ingredient, machinery, tool or instrument of any explosive or incendiary device, whether chemical, mechanical, electronic, electrical or otherwise, shall suffer the penalty of reclusion perpetua.
AND
(RA 10591). This Act repeals Sections 1, 2, 5 and 7 of Presidential Decree No. 1866, as amended, and Section 6 of Republic Act No. 8294 and all other laws, executive orders, letters of instruction, issuances, circulars, administrative orders, rules or regulations that are inconsistent herewith (Sec. 45)
Planting of evidence shall mean the willful act by any person of maliciously and surreptitiously inserting, placing, adding or attaching, directly or indirectly, through any overt or covert act, whatever quantity of any explosive or incendiary device or any part, ingredient, machinery, tool or instrument of any explosive or incendiary device, whether chemical, mechanical, electronic, electrical or otherwise in the person, house, effects or in the immediate vicinity of an innocent individual for the purpose of implicating, incriminating or imputing the commission of any violation of this Decree.
Penal Provisions Sec. 28. Unlawful Acquisition, or Possession of Firearms and Ammunition. – The unlawful acquisition, possession of firearms and ammunition shall be penalized as follows: (a) The penalty of prision mayor in its medium period shall be imposed upon any person who shall unlawfully acquire or possess a small arm;
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(b) The penalty of reclusion temporal to reclusion perpetua shall be imposed if three (3) or more small arms or Class-A light weapons are unlawfully acquired or possessed by any person; (c) The penalty of prision mayor in its maximum period shall be imposed upon any person who shall unlawfully acquire or possess a Class-A light weapon; (d) The penalty of reclusion perpetua shall be imposed upon any person who shall, unlawfully acquire or possess a Class-B light weapon; (e) The penalty of one (1) degree higher than that provided in paragraphs (a) to (c) in this section shall be imposed upon any person who shall unlawfully possess any firearm under any or combination of the following conditions: (1) Loaded with ammunition or inserted with a loaded magazine; (2) Fitted or mounted with laser or any gadget used to guide the shooter to hit the target such as thermal weapon sight (TWS) and the like; (3) Fitted or mounted with sniper scopes, firearm muffler or firearm silencer; (4) Accompanied with an extra barrel; and (5) Converted to be capable of firing full automatic bursts. (f) The penalty of prision mayor in its minimum period shall be imposed upon any person who shall unlawfully acquire or possess a major part of a small arm; (g) The penalty of prision mayor in its minimum period shall be imposed upon any person who shall unlawfully acquire or possess ammunition for a small arm or Class-A light weapon. If the violation of this paragraph is committed by the same person charged with the unlawful acquisition or possession of a small arm, the former violation shall be absorbed by the latter; (h) The penalty of prision mayor in its medium period shall be imposed upon any person
CRIMINAL LAW
who shall unlawfully acquire or possess a major part of a Class-A light weapon; (i) The penalty of prision mayor in its medium period shall be imposed upon any person who shall unlawfully acquire or possess ammunition for a Class-A light weapon. If the violation of this paragraph is committed by the same person charged with the unlawful acquisition or possession of a Class-A light weapon, the former violation shall be absorbed by the latter; (j) The penalty of prision mayor in its maximum period shall be imposed upon any person who shall unlawfully acquire or possess a major part of a Class-B light weapon; and (k) The penalty of prision mayor in its maximum period shall be imposed upon any person who shall unlawfully acquire or possess ammunition for a Class-B light weapon. If the violation of this paragraph is committed by the same person charged with the unlawful acquisition or possession of a Class-B light weapon, the former violation shall be absorbed by the latter.
Sec. 29. Use of Loose Firearm in the Commission of a Crime. – The use of a loose firearm, when inherent in the commission of a crime punishable under the Revised Penal Code or other special laws, shall be considered as an aggravating circumstance: Provided, That if the crime committed with the use of a loose firearm is penalized by the law with a maximum penalty which is lower than that prescribed in the preceding section for illegal possession of firearm, the penalty for illegal possession of firearm shall be imposed in lieu of the penalty for the crime charged: Provided, further, That if the crime committed with the use of a loose firearm is penalized by the law with a maximum penalty which is equal to that imposed under the preceding section for illegal possession of firearms, the penalty of prision mayor in its minimum period shall be imposed in addition to 182
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the penalty for the crime punishable under the Revised Penal Code or other special laws of which he/she is found guilty.
CRIMINAL LAW
penalty of reclusion temporal to reclusion perpetua shall be imposed upon any person who shall unlawfully engage in the manufacture, importation, sale or disposition of a firearm or ammunition, or a major part of a firearm or ammunition, or machinery, tool or instrument used or intended to be used by the same person in the manufacture of a firearm, ammunition, or a major part thereof.
If the violation of this Act is in furtherance of, or incident to, or in connection with the crime of rebellion of insurrection, or attempted coup d’etat, such violation shall be absorbed as an element of the crime of rebellion or insurrection, or attempted coup d’etat.
The possession of any machinery, tool or instrument used directly in the manufacture of firearms, ammunition, or major parts thereof by any person whose business, employment or activity does not lawfully deal with the possession of such article, shall be prima facie evidence that such article is intended to be used in the unlawful or illegal manufacture of firearms, ammunition or parts thereof.
If the crime is committed by the person without using the loose firearm, the violation of this Act shall be considered as a distinct and separate offense. Sec. 30. Liability of Juridical Person. – The penalty of prision mayor in its minimum to prision mayor in its medium period shall be imposed upon the owner, president, manager, director or other responsible officer of/any public or private firm, company, corporation or entity who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding section, or willfully or knowingly allow any of them to use unregistered firearm or firearms without any legal authority to be carried outside of their residence in the course of their employment.
The penalty of prision mayor in its minimum period to prision mayor in its medium period shall be imposed upon any laborer, worker or employee of a licensed firearms dealer who shall unlawfully take, sell or otherwise dispose of parts of firearms or ammunition which the company manufactures and sells, and other materials used by the company in the manufacture or sale of firearms or ammunition. The buyer or possessor of such stolen part or material, who is aware that such part or material was stolen, shall suffer the same penalty as the laborer, worker or employee.
Sec. 31. Absence of Permit to Carry Outside of Residence. – The penalty of prision correccional and a fine of Ten thousand pesos (P10,000.00) shall be imposed upon any person who is licensed to own a firearm but who shall carry the registered firearm outside his/her residence without any legal authority therefor.
If the violation or offense is committed by a corporation, partnership, association or other juridical entity, the penalty provided for in this section shall be imposed upon the directors, officers, employees or other officials or persons therein who knowingly and willingly participated in the unlawful act.
Sec. 32. Unlawful Manufacture, Importation, Sale or Disposition of Firearms or Ammunition or Parts Thereof, Machinery, Tool or Instrument Used or Intended to be Used in the Manufacture of Firearms, Ammunition or Parts Thereof. – The 183
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Sec. 33. Arms Smuggling. – The penalty of reclusion perpetua shall be imposed upon any person who shall engage or participate in arms smuggling as defined in this Act.
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turn over to the PNP Crime Laboratory such firearm, ammunition, or parts thereof, machinery, tools or instruments in its custody during the pendency of the case and to produce the same to the court when so ordered. No bond shall be admitted for the release of the firearm, ammunition or parts thereof, machinery, tool or instrument. Any violation of this paragraph shall be punishable by prision mayor in its minimum period to prision mayor in its medium period.
Sec. 34. Tampering, Obliteration or Alteration of Firearms Identification. – The penalty of prision correccional to prision mayor in its minimum period shall be imposed upon any person who shall tamper, obliterate or alter without authority the barrel, slide, frame, receiver, cylinder, or bolt assembly, including the name of the maker, model, or serial number of any firearm, or who shall replace without authority the barrel, slide, frame, receiver, cylinder, or bolt assembly, including its individual or peculiar identifying characteristics essential in forensic examination of a firearm or light weapon.
Sec. 37. Confiscation and Forfeiture. – The imposition of penalty for any violation of this Act shall carry with it the accessory penalty of confiscation and forfeiture of the firearm, ammunition, or parts thereof, machinery, tool or instrument in favor of the government which shall be disposed of in accordance with law.
The PNP shall place this information, including its individual or peculiar identifying characteristics into the database of integrated firearms identification system of the PNP Crime Laboratory for future use and identification of a particular firearm.
Sec. 38. Liability for Planting Evidence. – The penalty of prision mayor in its maximum period shall be imposed upon any person who shall willfully and maliciously insert; place, and/or attach, directly or indirectly, through any overt or covert act, any firearm, or ammunition, or parts thereof in the person, house, effects, or in the immediate vicinity of an innocent individual for the purpose of implicating or incriminating the person, or imputing the commission of any violation of the provisions of this Act to said individual. If the person found guilty under this paragraph is a public officer or employee, such person shall suffer the penalty of reclusion perpetua.
Sec. 35. Use of an Imitation Firearm. – An imitation firearm used in the commission of a crime shall be considered a real firearm as defined in this Act and the person who committed the crime shall be punished in accordance with this Act: Provided, That injuries caused on the occasion of the conduct of competitions, sports, games, or any recreation activities involving imitation firearms shall not be punishable under this Act.
Sec. 39. Grounds for Revocation, Cancellation or Suspension of License or Permit. – The Chief of the PNP or his/her authorized representative may revoke, cancel or suspend a license or permit on the following grounds:
Sec. 36. In Custodia Legis. – During the pendency of any case filed in violation of this Act, seized firearm, ammunition, or parts thereof, machinery, tools or instruments shall remain in the custody of the court. If the court decides that it has no adequate means to safely keep the same, the court shall issue an order to
(a) Commission of a crime or offense involving the firearm, ammunition, of major parts thereof; 184
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(b) Conviction of a crime involving moral turpitude or any offense where the penalty carries an imprisonment of more than six (6) years; (c) Loss of the firearm, ammunition, or any parts thereof through negligence; (d) Carrying of the firearm, ammunition, or major parts thereof outside of residence or workplace without, the proper permit to carry the same; (e) Carrying of the firearm, ammunition, or major parts thereof in prohibited places; (f) Dismissal for cause from the service in case of government official and employee; (g) Commission of any of the acts penalized under Republic Act No. 9165, otherwise known as the “Comprehensive Dangerous Drugs Act of 2002″ ; (h) Submission of falsified documents or misrepresentation in the application to obtain a license or permit; (i) Noncompliance of reportorial requirements; and (j) By virtue of a court order.
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SEC. 41. Illegal Transfer/Registration of Firearms. – It shall be unlawful to transfer possession of any firearm to any person who has not yet obtained or secured the necessary license or permit thereof. The penalty of prision correccional shall be imposed upon any person who shall violate the provision of the preceding paragraph. In addition, he/she shall be disqualified to apply for a license to possess other firearms and all his/her existing firearms licenses whether for purposes of commerce or possession, shall be revoked. If government-issued firearms, ammunition or major parts of firearms or light weapons are unlawfully disposed, sold or transferred by any law enforcement agent or public officer to private individuals, the penalty of reclusion temporal shall be imposed. Any public officer or employee or any person who shall facilitate the registration of a firearm through fraud, deceit, misrepresentation or submission of falsified documents shall suffer the penalty of prision correccional.
Sec. 40. Failure to Notify Lost or Stolen Firearm or Light Weapon. – A fine of Ten thousand pesos (P10,000.00) shall be imposed upon any licensed firearm holder who fails to report to the FEO of the PNP that the subject firearm has been lost or stolen within a period of thirty (30) days from the date of discovery.
RA 9372: HUMAN SECURITY ACT (See Special Laws in Title I)
Title IV. Crimes against Public Interest
Likewise, a fine of Five thousand pesos (P5,000.00) shall be imposed upon any person holding a valid firearm license who changes residence or office address other than that indicated in the license card and fails within a period of thirty (30) days from said transfer to notify the FEO of the PNP of such change of address.
Acts of Counterfeiting (1) Article 162 - Using Forged Signature or Counterfeit Seal or Stamp (2) Article 161 - Counterfeiting the Great Seal of the Government of the Philippine Islands, Forging the Signature or Stamp of the Chief Executive (3) Article 164 - Mutilation of Coins (4) Article 163 - Making and Importing and Uttering False Coins 185
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(5) Article 165 - Selling of False or Mutilated Coin, Without Connivance (6) Article 167 - Counterfeiting, Importing, and Uttering Instruments Not Payable to Bearer (7) Article 166 - Forging Treasury or Bank Notes or Other Documents Payable to Bearer; Importing and Uttering Such False or Forged Notes and Documents
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(7) Article 184 - Offering False Testimony in Evidence (8) Article 183 - False Testimony in Other Cases and Perjury in Solemn Affirmation (9) Article 185 - Machinations in Public Auctions (10) Article 186 – Monopolies and Combinations in Restraint of Trade (11) Article 187 – Importation and Disposition of Falsely Marked Articles or Merchandise Made of Gold, Silver, or other Precious Metals or their Alloys
Acts of Forgery (1) Article 168 - Illegal Possession and Use of False Treasury or Bank Notes and Other Instruments of Credit (2) Article 169 - How Forgery is Committed
The crimes in this title are in the nature of fraud or falsity to the public. Deceit perpetrated upon the public is the act being punished.
Acts of Falsification (1) Article 170 - Falsification of Legislative Documents (2) Article 171 - Falsification by Public Officer, Employee or Notary or Ecclesiastical Minister (3) Article 172 - Falsification by Private Individual and Use of Falsified Documents (4) Article 173 - Falsification of Wireless, Cable, Telegraph and Telephone Messages, and Use of Said Falsified Messages (5) Article 175 - Using False Certificates (6) Article 174 - False Medical Certificates, False Certificates of Merits or Service, etc. (7) Article 176 - Manufacturing and Possession of Instruments or Implements for Falsification
ACTS OF COUNTERFEITING ARTICLE 161 - COUNTERFEITING THE GREAT SEAL OF THE GOVERNMENT OF THE PHILIPPINE ISLANDS, FORGING THE SIGNATURE OR STAMP OF THE CHIEF EXECUTIVE Acts punished: Forging the (1) Great Seal of the Government of the Philippines; (2) Signature of the President; (3) Stamp of the President. When the signature of the president is forged, the crime committed is covered by this provision and not falsification of public document.
Other Falsities (1) Article 177 - Usurpation of Authority or Official Functions (2) Article 179 - Illegal Use of Uniforms and Insignia (3) Article 178 - Using Fictitious and Concealing True Name (4) Article 180 - False Testimony Against a Defendant (5) Article 181 - False Testimony Favorable to the Defendant (6) Article 182 - False Testimony in Civil Cases
Intent to use is necessary. Actual use, however, is not required, as long as the forger intended to use it. ARTICLE 162 – USING FORGED SIGNATURE OR COUNTERFEIT SEAL OR STAMP Elements: (a) The great Seal of the Republic was counterfeited or the Signature or stamp of 186
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the Chief Executive was forged by another person; (b) Offender Knew of the counterfeiting or forgery; (c) He used the counterfeit seal or forged signature or stamp.
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(1) Silver coins of the Philippines or coins of the Central Bank of the Philippines; (2) Coins of the minor coinage of the Philippines or of the Central Bank of the Philippines; (3) Coin of the currency of a foreign country. The counterfeiting of foreign currency is punishable, regardless of whether or not it is still in official circulation. The reason behind this is not only the harm that it may cause to the public in case it goes into circulation again, but also the possibility that the counterfeiter may later apply his trade to the making of coins in actual circulation. [People vs. Kong Leon]
Note: Offender under this article should not be the forger. Otherwise, he will be penalized under Article 161. The participation of the offender is in effect that of an accessory. Although the general rule is that he should be punished by a penalty of two degrees lower, under Article 162 he is punished by a penalty only one degree lower.
ARTICLE 164 – MUTILATION OF COINS Acts punished (1) Mutilating coins of the legal currency, with the further requirement that there be intent to damage or to defraud another; (2) Importing or uttering such mutilated coins, with the further requirement that there must be connivance with the mutilator or importer in case of uttering.
ARTICLE 163 – MAKING AND IMPORTING AND UTTERING FALSE COINS Elements: (a) There be False or counterfeited coins; (b) Offender either made, imported or uttered such coins; (c) In case of uttering such false or counterfeited coins, he connived with the counterfeiters or importers.
The first acts of falsification or falsity include: (1) Counterfeiting (2) Forgery (3) Falsification
To utter is to pass counterfeited coins. It includes delivery or the act of giving them away. A counterfeited coin is uttered when it is paid, when the offender is caught counting the counterfeited coins preparatory to the act of delivering them, even though the utterer may not obtain the gain he intended [Decisions of the Supreme Court of Spain]
In so far as coins in circulation are concerned, there are two crimes that may be committed: (1) Counterfeiting coins (2) Mutilation of coins Requisites of Mutilation under The RPC: (1) Coin mutilated is of legal tender; (2) Offender gains from the precious metal dust abstracted from the coin; (3) It has to be a coin.
To import fake coins means to bring them into port. The importation is complete before entry at the Customs House [US vs. Lyman]
“Mutilation” means to take off part of the metal either by filling it or substituting it for another metal of inferior quality.
Kinds of coins the counterfeiting of which is punished
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Since the coins before were made of silver and/or other precious metal, shaving the metal from the coins became a practice. Hence, the coin’s intrinsic value is diminished.
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Elements: (a) Actually uttering; and (b) Knowledge. Possession prohibited in this article is not only actual and physical possession, but also that of a constructive one, or the subjection of the thing to one’s control. The possessor should not be the counterfeiter, mutilator or importer of the coins.
This is the only article that requires that the mutilated coin be legal tender. Foreign coins are not covered in this article. [Reyes, 2012] Deliberate intent arises only when the offender collects the precious metal dust from the mutilated coin.
As long as the offender has knowledge that the coin is false or mutilated, there is no need for him to connive with the counterfeiter or mutilator.
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ARTICLE 166 – FORGING TREASURY OR BANK NOTES OR OTHER DOCUMENTS PAYABLE TO BEARER; IMPORTING AND UTTERING SUCH FALSE OR FORGED NOTES AND DOCUMENTS
(July 18, 1973) Prohibiting and Penalizing Defacement, Mutilation, Tearing, Burning or Destruction of Central Bank Notes and Coins
Acts punished (1) Forging or falsification of treasury or bank notes or other documents payable to bearer; (2) Importation of such false or forged obligations or notes; (3) Uttering of such false or forged obligations or notes in connivance with the forgers or importers.
It shall be unlawful for any person to willfully deface, mutilate, tear, burn or destroy, in any manner whatsoever, currency notes and coins issued by the Central Bank of the Philippines.
ARTICLE 165 – SELLING OF FALSE OR MUTILATED COIN, WITHOUT CONNIVANCE
“Forging” - By giving any treasury or bank note, or any instrument payable to bearer, or to order the appearance of a true and genuine document.
Mode 1: Possession of coin, counterfeited or mutilated by another person, with intent to utter the same, knowing that it is false or mutilated;
“Falsification” - By erasing, substituting, counterfeiting or altering by any means, the figures, letters, words, or signs contained therein.
Elements: (a) Possession; (b) With Intent to utter; and (c) Knowledge.
The instrument is payable to bearer: (1) When expressed to be so payable
Mode 2: Actually uttering such false or mutilated coin, knowing the same to be false or mutilated. 188
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(2) When payable to a person named therein or bearer (3) When payable to the order of a fictitious or non-existing person, and such fact was known to the person making it so payable (4) When the name of the payee does not purport to be the name of any person (5) When the only or last endorsement is an endorsement in blank.
ARTICLE 168 - ILLEGAL POSSESSION AND USE OF FALSE TREASURY OR BANK NOTES AND OTHER INSTRUMENTS OF CREDIT Elements: (a) Any treasury or bank note or certificate or other obligation and security: (i) Payable to bearer, or any instrument payable to order or other document of credit not payable to bearer is (ii) Forged or falsified by another person; (b) Offender knows that any of those instruments is forged or falsified; (c) He either – (i) Uses any of such forged or falsified instruments; or (ii) Possesses with intent to use any of such forged or falsified instruments
Reason for this is that the forging tends to bring such documents into discredit and the offense produces a lack of confidence on the part of the holders of said documents to the prejudice of society and of the State.
ARTICLE 167 IMPORTING, INSTRUMENTS BEARER
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– COUNTERFEITING, AND UTTERING NOT PAYABLE TO
Elements: (a) There is an instrument payable to order or other document of credit not payable to bearer; (b) Offender either forged, imported or uttered such instrument; (c) In case of uttering, he connived with the forger or importer.
The rule is that if a person had in his possession a falsified document and he made use of it, taking advantage of it and profiting thereby, the presumption is that he is the material author of the falsification. [People vs. Sendaydiego, (1978)]
An instrument is payable to order where it is drawn payable to the order of a specified person or to him or his order.
Intent to use is sufficient to consummate the crime when the offender is in possession of false or falsified notes or obligations.
This covers instruments or other documents of credit issued by a foreign government or bank.
The accused must have knowledge of the forged character of the note.
Forgery of currency is punished so as to maintain integrity of the currency and thus insure the credit standing of the government.
ARTICLE 169 COMMITTED
Possession of false treasury or bank notes alone is not a criminal offense.
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(1) By giving to a treasury or bank note or any instrument payable to bearer or to order mentioned therein, the appearance of a true and genuine document;
Connivance is not required in uttering if the utterer is the forger.
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(2) By erasing, substituting, counterfeiting, or altering by any means the figures, letters, words, or sign contained therein.
(c) He has no proper authority therefor; (d) The alteration has changed the meaning of the documents.
Forgery includes falsification and counterfeiting.
The writing must be: (1) complete in itself; and (2) capable of extinguishing an obligation or creating rights; or (3) capable of becoming evidence of the facts stated therein.
For possession of false treasury or bank note to constitute a criminal offense, it must be with intent to use. The essence of forgery is giving a document the appearance of a true and genuine document.
Five classes of falsification: (1) Falsification of legislative documents; (2) Falsification of a document by a public officer, employee or notary public; (3) Falsification of a public or official, or commercial documents by a private individual; (4) Falsification of a private document by any person; (5) Falsification of wireless, telegraph and telephone messages.
Not any alteration of a letter, number, figure or design would amount to forgery. At most, it would only be frustrated forgery. Possession of genuine treasury notes of the Philippines any of “the figures, letters, words or signs contained” in which had been erased and/or altered, with knowledge of such erasure and alteration, and with the intent to use such notes in enticing another to advance funds for the avowed purpose of financing the manufacture of counterfeit treasury notes of the Philippines, is punishable under Art. 168 in relation to Art. 166 (1) [Del Rosario vs. People]
Falsification vs. Forgery
Forgery can be committed through the use of genuine paper bills that have been withdrawn from circulation, by giving them the appearance of some other true and genuine document. [People vs. Galano]
Forgery
Falsification
As used in Article 169, forgery refers to the falsification and counterfeiting of treasury or bank notes or any instruments payable to bearer or to order
The commission of any of the 8 acts mentioned in Article 171 on legislative (only the act if making alteration) public or official, commercial or private documents or wireless or telegraph messages.
ACTS OF FALSIFICATION ARTICLE 170 - FALSIFICATION LEGISLATIVE DOCUMENTS
OF
Elements: (a) There is a bill, resolution or ordinance enacted or approved or pending approval by either House of the Legislature or any provincial board or municipal council; (b) Offender alters the same;
ARTICLE 171 – FALSIFICATION BY PUBLIC OFFICER, EMPLOYEE OR NOTARY OR ECCLESIASTICAL MINISTER Elements: 190
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(a) Offender is a Public officer, employee, or notary public; (b) He Takes advantage of his official position; (c) He falsifies a document by committing any of the following acts: (1) Counterfeiting or imitating any handwriting, signature or rubric; (2) Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate; (3) Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them; (4) Making untruthful statements in a narration of facts; (5) Altering true dates; (6) Making any alteration or intercalation in a genuine document which changes its meaning; (7) Issuing in an authenticated form: (i) A document purporting to be a copy of an original document (ii) When no such original exists, or (iii) Including in such a copy a statement contrary to, or different from, that of the genuine original; (8) Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book.
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(1) He has the duty to make or prepare, or intervene in the preparation of the document; or (2) He has the official custody of the document he falsifies. 3rd Element: Offender Falsifies a Document A document is any written statement by which a right or status is established or an obligation is extinguished. Par 1: Counterfeiting or imitating any handwriting, signature or rubric. 2 ways of committing falsification under this paragraph: (1) Counterfeiting, which is imitating any handwriting, signature or rubric (a) There should be an intent to imitate, or an attempt to imitate (b) Two signatures, the genuine and the forged, should bear some resemblance. (2) Feigning, which is simulating a signature, handwriting or rubric out of one which does not actually exist. Par 2: Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate. Requisites: (a) Offender caused it to appear in a document that a person/s participated in an act or proceeding. (b) Such person/s did not in fact participate.
1st Element: Persons Liable under this Article Under this article, only a public officer, employee or notary public, or ecclesiastical minister can be the offender.
Par 3: Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them
The ecclesiastical minister is liable with respect to any record or document that its falsification may affect the civil status of persons. 2nd Element: Offender Take Advantage of his Official Position Offender takes advantage of his official position in falsifying a document when:
Requisites: (a) Person/s participated proceeding
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(b) Such person/s made statements in that act or proceeding (c) Offender, in making a document, attributed to such person/s statements other than those they in fact made.
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(2) The alteration of the date must affect the veracity of the documents or the effects thereof (such as dates of birth, marriage, or death). Par 6: Making any alteration or intercalation in a genuine document which changes its meaning
Par 4: Making untruthful statements in a narration of facts
Requisites: (a) There be an alteration (change) or intercalation (insertion) on a document. (b) It was made on a genuine document. (c) Alteration or intercalation has changed the meaning of the document. (d) Change made the document speak something false.
Requisites: (a) Offender makes in a document statements in a narration of facts (b) He has a legal obligation to disclose truth of facts (c) Facts narrated are absolutely false (d) Perversion of truth in the narration was made with the wrongful intent of injuring a third person.
Change or insertion must affect the integrity or effects of the document. Furthermore, the alteration should make the document speak something false. Otherwise, it would merely be a correction.
There must be narration of facts, not conclusion of law. There should be a legal obligation to disclose the truth. [Beradio vs. CA] The person making the narration of facts must be aware of the falsity of facts narrated by him. The narration of facts must be absolutely false. If there is some colorable truth in such statements, crime of falsification is not deemed to have been committed.
Par 7: Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such a copy a statement contrary to, or different from, that of the genuine original Falsification in this paragraph cannot be committed by a private individual, or by a notary public, or by a public officer, who does not take advantage of his official position.
The existence of a wrongful intent to injure a third person is immaterial in falsification of a public document. [Siquian vs. People] There can be falsification by omission. An assistant bookkeeper is guilty of falsification by intentionally not putting a record in his personal account of chits and destroyed them so he could avoid paying the same. [People vs. Dizon]
This is because authentication of a document can only be made by the custodian or the one who prepared and retained a copy of the original. (1) Purporting to be a copy of the original when no such original exists. (2) Including in a copy a statement contrary to, or different from, that of the genuine original.
Par 5: Altering true dates (1) The date must be essential 192
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A private person who cooperates with a public officer in the falsification of a public document is guilty of the crime and incurs the same liability and penalty. Par 1
Par 2
Par 3
Par 4
May be a genuine (later falsified) or an entirely fabricated document
May be a genuine (later falsified) or an entirely fabricated document
May be a genuine (later falsified) or an entirely fabricated document
May be a genuine (later falsified) or an entirely fabricated document
Par 5
Par 6
Par 7
Par 8
May be a genuine (later falsified) or an entirely fabricated document
There must be a genuine document
There must be a genuine document
There must be a genuine document
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(3) Commercial document or any document recognized by the Code of Commerce or any commercial law; and (4) A deed or instrument executed by a private person without the intervention of a notary public or other persons legally authorized. Private document in the execution of which only private individuals take part. The element of damage is not necessary because it is the interest of the community which is intended to be guaranteed. The character of the offender and his faithfulness to his duty is mainly taken into consideration. Public and Private Writings under The Rules Of Court: (1) Written official acts, or records, of the official acts of the sovereign authority, official bodies and tribunals, and public officers (2) Documents acknowledged before a notary public except last will and testaments (3) Public records kept in the Philippines, of private documents required by law to be entered therein.
Four Kinds of Documents (1) Public document in the execution of which, a person in authority or notary public has taken part; (a) A document created, executed or issued (b) By a public official (c) In response to the exigencies of the public service, (d) Or in execution of w/c public official intervened.
All other writings are private. After an investigation, a group of public officers were caught and convicted of falsifying cash vouchers.
(2) Official document in the execution of which a public official takes part; (a) A document issued by a public official in the exercise of the functions of his office. It falls within the larger class called public documents. (b) A document required by a bureau to be filled by its officers for purposes of record and information is a public document.
On appeal the SC held that cash vouchers are NOT commercial documents because they are not documents used by merchants or businessmen to promote or facilitate credit transactions nor are they defined and regulated by the Code of Commerce or other commercial law.
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Rather, they are private documents which have been defined as: (1) Deeds or instruments executed by a private person (2) Without the intervention of a public notary or of other person legally authorized, (3) By which some disposition or agreement is proved, evidenced or set forth. [People vs. Batulanon (2007)]
ARTICLE 172 – FALSIFICATION PRIVATE INDIVIDUAL AND USE FALSIFIED DOCUMENTS
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Mode 3: Use of falsified document. Elements in introducing in a judicial proceeding (a) Offender Knew that the document was falsified by another person; (b) The False document is in Articles 171 or 172 (1 or 2); (c) He Introduced said document in evidence in any judicial proceeding.
BY OF
Elements in use in any other transaction – (a) Offender Knew that a document was falsified by another person; (b) The False document is embraced in Articles 171 or 172 (1 or 2); (c) He Used such document; (d) The use caused Damage to another or at least used with intent to cause damage.
Mode 1: Falsification of public, official or commercial document by a private individual; Elements: (a) Offender is a Private individual OR Public officer or employee who did not take advantage of his official position; (b) He committed any act of Falsification (Art. 171); (c) The falsification was committed in a public, official, or commercial document or letter of exchange.
In the falsification of public or official documents, it is not necessary that there be present the idea of gain or the intent to cause damage. This is because the principal thing punished is the violation of public faith and destruction of the truth as therein solemnly proclaimed.
Mode 2: Falsification of private document by any person;
The existence of a wrongful intent to injure a third person is not necessary when the falsified document is a public document. [Siquian vs. People]
Elements: (a) Offender committed any of the acts of Falsification except Article 171(7), that is, (1) Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists, or (2) Including in such a copy a statement contrary to, or different from, that of the genuine original; (b) Falsification was committed in any Private document; (c) Falsification causes Damage to a third party or at least the falsification was committed with intent to cause such damage.
Note: This statement applies as well to commercial documents, because as to this kind of document, a credit is sought to be protected. [Reyes] Since damage is not an element of falsification of a public document, it could be complexed with estafa, theft or malversation as a necessary means to commit the latter crimes. There is no crime of falsification of private document through negligence or imprudence. 194
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Mode 1: Uttering fictitious wireless, telegraph or telephone message;
If the document is intended by law to be part of the public or official record, the falsification, although it was private at the time of falsification, it is regarded as falsification of a public or official document.
Elements: (a) Offender is an officer or employee of the government or an officer or employee of a private corporation, engaged in the service of sending or receiving wireless, cable or telephone message; (b) He utters fictitious wireless, cable, telegraph or telephone message.
Falsification through imprudence implies lack of such intent, thus there is no crime of falsification of a private document through negligence or imprudence. The possessor of a falsified document is presumed to be the author of the falsification. [People vs. Manansala]
Mode 2: Falsifying wireless, telegraph or telephone message; Elements: (a) Offender is an officer or employee of the government or an officer or employee of a private corporation, engaged in the service of sending or receiving wireless, cable or telephone message; (b) He falsifies wireless, cable, telegraph or telephone message.
The presumption also holds if the use was so closely connected in time with the falsification and the user had the capacity of falsifying the document. [People vs. Sendaydiego] There is no crime of estafa through falsification of a private document. Both crimes, separately, require the element of damage, which each of the two should have its own. The fraudulent gain obtained through deceit should not be the very same damage caused by the falsification of the private document.
Mode 3: Using such falsified message. Elements: (a) Offender knew that wireless, cable, telegraph, or telephone message (1) Was falsified by an officer or employee of the government or an officer or employee of a private corporation engaged in the service of sending or receiving wireless, cable or telephone message; (b) He used such falsified dispatch; (c) The use resulted in the prejudice of a third party or at least there was intent to cause such prejudice.
In the crime of falsification of a public document, the prescriptive period commences from the time the offended party had constructive notice of the alleged forgery after the document was registered with the Register of Deeds [People vs. Villalon]
ARTICLE 173 – FALSIFICATION OF WIRELESS, CABLE, TELEGRAPH AND TELEPHONE MESSAGES, AND USE OF SAID FALSIFIED MESSAGES
The public officer, to be liable, must be engaged in the service of sending or receiving wireless, cable, telegraph or telephone message.
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A private individual cannot be a principal by direct participation in falsification of telegraphic dispatches under Article 173, unless he is an employee of a corporation engaged in the business of sending or receiving wireless, telegraph or telephone messages. But a private individual can be held criminally liable as principal by inducement.
(1) Physician or surgeon, in connection with the practice of his profession, issues a false Medical certificate; (2) Public officer issues a false certificate of Merit of service, good conduct or similar circumstances; (3) Private Person falsifies a certificate falling within the 2 preceding subdivisions. (b) Offender Knows that the certificate was false; (c) He Uses the same.
ARTICLE 174 – FALSE MEDICAL CERTIFICATES, FALSE CERTIFCATES OF MERITS OF SERVICE, ETC.
When any of the false certificates mentioned in Article 174 is used in a judicial proceeding, Article 172 does not apply, because the use of false document in judicial proceeding under Article 172 is limited to those false documents embraced in Articles 171 and 172.
Persons liable (1) Physician or surgeon who, in connection with the practice of his profession, issues a false certificate (it must refer to the illness or injury of a person); Note: The crime here is false medical certificate by a physician.
ARTICLE 176 – MANUFACTURING AND POSSESSION OF INSTRUMENTS OR IMPLEMENTS FOR FALSIFICATION
(2) Public officer who issues a false certificate of merit of service, good conduct or similar circumstances;
Acts punished: (1) Making or introducing into the Philippines any stamps, dies, marks, or other instruments or implements for counterfeiting or falsification; (2) Possession with intent to use the instruments or implements for counterfeiting or falsification made in or introduced into the Philippines by another person.
Note: The crime here is false certificate of merit or service by a public officer. (3) Private person who falsifies a certificate falling within the classes mentioned in the two preceding subdivisions. Note: The crime here is false medical certificate by a private individual or false certificate of merit or service by a private individual.
ARTICLE 175 CERTIFICATES
–
USING
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As in Article 165, the possession contemplated here is constructive possession. The implements confiscated need not form a complete set.
OTHER FALSITIES
FALSE
ARTICLE 177 - USURPATION OF AUTHORITY OR OFFICIAL FUNCTIONS
Elements: (a) The following Issues a false certificate: 196
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Mode 1: Usurpation of authority. (no connection with the office represented)
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Elements: (a) Offender uses a name other than his real name; (b) He uses the fictitious name publicly; (c) Purpose of use is to conceal a crime, to evade the execution of a judgment or to cause damage [to public interest – Reyes].
The mere act of knowingly and falsely representing oneself to be an officer is sufficient. It is not necessary that he perform an act pertaining to a public officer. Elements: (a) Offender knowingly and falsely Represents himself; (b) As an Officer, agent or representative of any department or agency of the Philippine government or of any foreign government.
Mode 2: Concealing true name Elements: (a) Offender conceals his true name and other personal circumstances; (b) Purpose is only to conceal his identity.
Mode 2: Usurpation of official functions. (excess of authority)
Use of Fictitious Name Element of Publicity
Concealing True Name Publicity not necessary
In usurpation of official functions, it is essential that the offender should have performed an act pertaining to a person in authority or public officer, in addition to other requirements.
Purpose is to conceal a Merely to crime, evade execution identity. of judgment, cause damage)
conceal
Elements (a) Offender Performs any act; (b) Pertaining to any person in authority or public officer of the Philippine government or any foreign government, or any agency thereof; (c) Under Pretense of official position; (d) Without being lawfully entitled to do so
If the purpose is for causing damage, it must be damage to public interest.
The offender should have: (1) represented himself to be an officer, agent or representative of any agency of the government; or (2) performed an act pertaining to a person in authority or public officer.
Elements: (a) Offender makes Use of insignia, uniforms or dress; (b) The insignia, uniforms or dress pertains to an Office not held by such person or a class of persons of which he is not a member; (c) Said insignia, uniform or dress is Used publicly and improperly.
If it is damage to private interest, the crime will be estafa under Art 315 2(a).
ARTICLE 179 - ILLEGAL UNIFORMS AND INSIGNIA
Article 177 may be violated by a public officer.
ARTICLE 178 - USING FICTITIOUS AND CONCEALING TRUE NAME
USE
OF
Exact imitation of a uniform or dress is unnecessary; a colorable resemblance calculated to deceive the common run of people is sufficient.
Mode 1: Using fictitious name
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(c) In a Criminal case.
ARTICLE 180 - FALSE AGAINST A DEFENDANT
TESTIMONY The testimony need not in fact be beneficial to the defendant. It is not necessary that the testimony should directly influence the decision of acquittal, it being sufficient that it was given with the intent to favor the accused.
Elements: (a) There is a Criminal proceeding; (b) Offender Testifies falsely under oath against the defendant therein; (c) Offender who gives false testimony Knows that it is false. (d) Defendant against whom the false testimony is given is either acquitted or convicted in a Final judgment.
Conviction or acquittal of defendant in the principal case is not necessary. Rectification made spontaneously after realizing the mistake is not false testimony. Penalty for false testimony against the accused is based on the sentence imposed or if accused is acquitted; that for testimony favorable to the accused is based on the imposable penalty. The rationale for the difference is the measure of the wrong occasioned by the injustice in each case, i.e. the undeserved sentence and the imposable penalty avoided, respectively.
The witness who gave the false testimony is liable even if his testimony was not considered by the court. False Testimony – committed by a person who, being under oath and required to testify as to the truth of a certain matter at a hearing before a competent authority, shall deny the truth or say something contrary to it.
ARTICLE 182 - FALSE TESTIMONY IN CIVIL CASES
False testimony is punished because of its tendency to prejudice defendant. Three forms of false testimony: (1) False testimony in criminal cases under Article 180 and 181; (2) False testimony in civil case under Article 182; (3) False testimony in other cases under Article 183.
Elements: (a) Testimony Given in a civil case; (b) Testimony Relates to the issues presented in said case; (c) Testimony is False; (d) Offender Knows that testimony is false; (e) Testimony is Malicious (f) And given with an intent to affect the issues presented in said case.
Articles 180 – 184 punish the acts of making false testimonies because such acts seriously expose society to miscarriage of justice.
Falsity of testimony must first be established. Art. 182 does not apply in special proceedings. These are covered by Art. 183 under “other cases”.
ARTICLE 181 - FALSE TESTIMONY FAVORABLE TO THE DEFENDANT
Pending the determination of the falsity of the subject testimonies in the civil case, the criminal
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action for false testimony must perforce be suspended.
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It is not necessary that there be a law requiring the statement to be made under oath, as long as it is made for a legal purpose.
ARTICLE 183 - FALSE TESTIMONY IN OTHER CASES AND PERJURY IN SOLEMN AFFIRMATION
Perjury is a crime other than false testimony in criminal cases or false testimony in civil cases, which are perversions of truth in judicial proceedings.
Acts Punished (1) By falsely Testifying under oath; (2) By Making a false affidavit.
Perjury is an offense which covers false oaths other than those taken in the course of judicial proceedings. [US vs. Estrada]
Note: The false testimony should not be in a judicial proceeding. [Diaz vs. People]
Subornation of perjury is committed by a person who knowingly and willfully procures another to swear falsely and the witness suborned does testify under circumstances rendering him guilty of perjury. [US vs. Ballena] Subornation of perjury is not expressly penalized in the RPC; but the direct induction of a person by another to commit perjury may be punished under Article 183 in relation to Article 17.
Elements of perjury: (a) Offender Makes a statement under oath or executes an affidavit upon a material matter; (b) The statement or affidavit is made Before a competent officer, authorized to receive and administer oaths; (c) Offender makes a Willful and deliberate assertion of a falsehood in the statement or affidavit; (d) The sworn statement or affidavit containing the falsity is Required by law, that is, it is made for a legal purpose.
Material
Relevant
Directed to Tends in any prove a fact in reasonable issue degree to establish probability or improbability of a fact in issue
The statement should be outside the coverage of art 180-181. Oath – any form of attestation by which a person signifies that he is bound by conscience to perform an act faithfully and truthfully. Affidavit – sworn statement in writing; declaration in writing, made upon oath before an authorized magistrate or officer.
Pertinent Concerns collateral matters which make more or less probable the proposition at issue
ARTICLE 184 - OFFERING TESTIMONY IN EVIDENCE
There could be no perjury through negligence or imprudence. This is because of the requirement that the assertion of a falsehood be made willfully and deliberately. Hence, good faith or lack of malice is a defense in perjury.
FALSE
Elements: (a) Offender Offers in evidence a false witness or testimony;
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ARTICLE 186 – MONOPOLIES AND COMBINATIONS IN RESTRAINT OF TRADE
(b) He Knows that the witness or the testimony was false; (c) The offer is made in any Judicial or Official proceeding.
Note: This article has been repealed by the Philippine Competition Act, which was signed into law on July 21, 2015.
Offer of evidence begins at the moment a witness is called to the stand and interrogated by counsel. The witness must testify.
Mode 1: Combination to prevent free competition in the market
ARTICLE 185 - MACHINATIONS IN PUBLIC AUCTIONS
Elements: (a) Entering into any contract or agreement; or taking part in any conspiracy or combination in the form of a trust or otherwise; (b) In restraint of trade or commerce or to prevent by artificial means free competition in the market
Mode 1: Soliciting any gift or promise as a consideration for refraining from taking part in any public auction; Elements: (a) There is a Public auction; (b) Offender Solicits any gift or a promise from any of the bidders; (c) Such gift or promise is the Consideration for his refraining from taking part in that public auction; (d) Offender has the Intent to cause the reduction of the price of the thing auctioned.
Mode 2: Monopoly to restrain free competition in the market Elements: (a) Monopolizing any merchandise or object of trade or commerce; or (b) Combining with any other person or persons to monopolize said merchandise or object in order to alter the prices thereof by spreading false rumors or making use of any other artifice to restrain free competition in the market
Mode 2: Attempting to cause bidders to stay away from an auction by threats, gifts, promises or any other artifice. Elements: (a) There is a public auction; (b) Offender attempts to cause the bidders to stay away from that public auction; (c) It is done by threats, gifts, promises or any other artifice; (d) Offender had the Intent to cause the reduction of the price of the thing auctioned
Mode 3: Manufacturer, producer, or processor or importer combining, conspiring or agreeing with any person to make transactions prejudicial to lawful commerce or to increase the market price of merchandise Elements: (a) Person liable: (1) manufacturer, (2) producer, (3) processor, or (4) importer of any merchandise or object of commerce (b) Crime committed by: (1) combining, (2) conspiring, or (3) agreeing with any person
The crime is consummated by: (1) Mere solicitation of gift or promise as consideration for not bidding, or (2) By mere attempt to cause prospective bidders to stay away from an auction.
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RA 9194: ANTI-MONEY LAUNDERING ACT
(c) Purpose: (1) to make transactions prejudicial to lawful commerce, or (2) to increase the market price of any merchandise or object of commerce manufactured, produced, processed, assembled, or imported into the Philippines
Covered transaction is a transaction in cash or other equivalent monetary instrument involving a total amount in excess of Five hundred thousand pesos (P500,000.00) within one (1) banking day.
Theory of the law: Competition, not combination, should be the law of trade
Suspicious transaction are transactions with covered institutions, regardless of the amounts involved, where any of the following circumstances exist (1) there is no underlying legal or trade obligation, purpose or economic justification; (2) the client is not properly identified; (3) the amount involved is not commensurate with the business or financial capacity of the client; (4) taking into account all known circumstances, it may be perceived that the client’s transaction is structured in order to avoid being the subject of reporting requirements under the Act; (5) any circumstance relating to the transaction which is observed to deviate from the profile of the client and/or the client’s past transactions with the covered institution; (6) the transaction is in any way related to an unlawful activity or offense under this Act that is about to be, is being or has been committed; or (7) any transaction that is similar or analogous to any of the foregoing.
Mere conspiracy or combination is punished. If the offense affects any food substance or other article of prime necessity, it is sufficient that initial steps are taken. When offense is committed by a corporation or association, the president and directors or managers are liable.
ARTICLE 187 – IMPORTATION AND DISPOSITION OF FALSELY MARKED ARTICLES OR MERCHANDISE MADE OF GOLD, SILVER, OR OTHER PRECIOUS METALS OR THEIR ALLOYS Elements: (a) Offender imports, sells or disposes of any of those articles or merchandise (i.e. gold, silver, other precious metals or their alloys) (b) The stamps, brands, or marks of those articles of merchandise fail to indicate the actual fineness or quality of said metals or alloys (c) Offender knows that the stamps, brands, or marks fail to indicate the actual fineness or quality of the metals or alloys
Unlawful activity – any act or omission or series or combination thereof involving or having direct relation to the following: (1) kidnapping for ransom under Article 267 of Act No. 3815, otherwise known as the Revised Penal Code, as amended; (2) Sections 4, 5, 6, 8, 9, 10, 12, 13, 14, 15, and 16 of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002;
Selling the misbranded articles is not necessary. Article 187 does not apply to manufacturer of misbranded articles – he would be liable for estafa under Art. 315(2)(b).
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(3) Section 3 paragraphs B, C, E, G, H and I of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act; (4) Plunder under Republic Act No. 7080, as amended; (5) Robbery and extortion under Articles 294, 295, 296, 299, 300, 301 and 302 of the Revised Penal Code, as amended; (6) Jueteng and Masiao punished as illegal gambling under Presidential Decree No. 1602; (7) Piracy on the high seas under the Revised Penal Code, as amended and Presidential Decree No. 532; (8) Qualified theft under Article 310 of the Revised Penal Code, as amended; (9) Swindling under Article 315 of the Revised Penal Code, as amended; (10) Smuggling under Republic Act Nos. 455 and 1937; (11) Violations under Republic Act No. 8792, otherwise known as the Electronic Commerce Act of 2000; (12) Hijacking and other violations under Republic Act No. 6235; destructive arson and murder, as defined under the Revised Penal Code, as amended, including those perpetrated by terrorists against noncombatant persons and similar targets; (13) Fraudulent practices and other violations under Republic Act No. 8799, otherwise known as the Securities Regulation Code of 2000; (14) Felonies or offenses of a similar nature that are punishable under the penal laws of other countries."
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(a) Any person knowing that any monetary instrument or property represents, involves, or relates to, the proceeds of any unlawful activity, transacts or attempts to transact said monetary instrument or property. (b) Any person knowing that any monetary instrument or property involves the proceeds of any unlawful activity, performs or fails to perform any act as a result of which he facilitates the offense of money laundering referred to in paragraph (a) above. (c) Any person knowing that any monetary instrument or property is required under this Act to be disclosed and filed with the Anti-Money Laundering Council (AMLC), fails to do so. Articles 188-189 have been repealed by RA 8293 (The Intellectual Property Code of the Philippines) Sec. 155. Remedies; Infringement. - Any person who shall, without the consent of the owner of the registered mark:
155.1. Use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark or the same container or a dominant feature thereof in connection with the sale, offering for sale, distribution, advertising of any goods or services including other preparatory steps necessary to carry out the sale of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or
Sec. 4. Money Laundering Offense. – Money laundering is a crime whereby the proceeds of an unlawful activity as herein defined are transacted, thereby making them appear to have originated from legitimate sources. It is committed by the following:
155.2. Reproduce, counterfeit, copy or colorably imitate a registered mark or a dominant feature thereof and apply such reproduction, counterfeit, copy or colorable imitation to 202
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labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive, shall be liable in a civil action for infringement by the registrant for the remedies hereinafter set forth: Provided, That the infringement takes place at the moment any of the acts stated in Subsection 155.1 or this subsection are committed regardless of whether there is actual sale of goods or services using the infringing material.
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competition, the following shall be deemed guilty of unfair competition: (a) Any person, who is selling his goods and gives them the general appearance of goods of another manufacturer or dealer, either as to the goods themselves or in the wrapping of the packages in which they are contained, or the devices or words thereon, or in any other feature of their appearance, which would be likely to influence purchasers to believe that the goods offered are those of a manufacturer or dealer, other than the actual manufacturer or dealer, or who otherwise clothes the goods with such appearance as shall deceive the public and defraud another of his legitimate trade, or any subsequent vendor of such goods or any agent of any vendor engaged in selling such goods with a like purpose; (b) Any person who by any artifice, or device, or who employs any other means calculated to induce the false belief that such person is offering the services of another who has identified such services in the mind of the public; or (c) Any person who shall make any false statement in the course of trade or who shall commit any other act contrary to good faith of a nature calculated to discredit the goods, business or services of another.
Sec. 168. Unfair Competition, Rights, Regulation and Remedies. - 168.1. A person who has identified in the mind of the public the goods he manufactures or deals in, his business or services from those of others, whether or not a registered mark is employed, has a property right in the goodwill of the said goods, business or services so identified, which will be protected in the same manner as other property rights.
168.2. Any person who shall employ deception or any other means contrary to good faith by which he shall pass off the goods manufactured by him or in which he deals, or his business, or services for those of the one having established such goodwill, or who shall commit any acts calculated to produce said result, shall be guilty of unfair competition, and shall be subject to an action therefor.
Sec. 169. False Designations of Origin; False Description or Representation. - 169.1. Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which:
168.3. In particular, and without in any way limiting the scope of protection against unfair
(a) Is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, 203
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connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person; or (b) In commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable to a civil action for damages and injunction provided in Sections 156 and 157 of this Act by any person who believes that he or she is or is likely to be damaged by such act.
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Note: Art 190-194 were repealed by RA 6425, known as the “Dangerous Drug Act of 1972.” RA No. 9165, known as the “Comprehensive Dangerous Drug Act of 2002” in turn repealed RA No. 6425.
DEFINITION OF IMPORTANT TERMS Dangerous drugs - include those listed in: (1) The Schedules annexed to the 1961 Single Convention on Narcotic Drugs, as amended by the 1972 Protocol, and (2) The Schedules annexed to the 1971 Single Convention on Psychotropic Substances as enumerated in the attached annex which is an integral part of this Act. [Sec. 3(j), RA 9165]
169.2. Any goods marked or labelled in contravention of the provisions of this Section shall not be imported into the Philippines or admitted entry at any customhouse of the Philippines. The owner, importer, or consignee of goods refused entry at any customhouse under this section may have any recourse under the customs revenue laws or may have the remedy given by this Act in cases involving goods refused entry or seized. (Sec. 30, R.A. No. 166a)
Chemical Diversion - The sale, distribution, supply or transport of legitimately imported, intransit, manufactured or procured controlled precursors and essential chemicals, in diluted, mixtures, or in concentrated form, to any person or entity engaged in the manufactured of any dangerous drugs, and shall include packaging, labelling, or concealment of such transaction. Controlled Precursors and Essential Chemicals Include those listed in Tables I and II of the 188 UN Convention Against Illicit Traffic in Narcotics Drugs and Psychotropic Substances.
Sec. 170. Penalties. - Independent of the civil and administrative sanctions imposed by law, a criminal penalty of imprisonment from two (2) years to five (5) years and a fine ranging from Fifty thousand pesos (P50,000) to Two hundred thousand pesos(P200,000), shall be imposed on any person who is found guilty of committing any of the acts mentioned in Section 155, Section 8 and Subsection 169.1.
ACTS PUNISHED (1) Importation of Dangerous Drugs and/or Controlled Precursors and Essential Chemical [Sec. 4] (2) Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals [Sec. 5] (a) the identity of the buyer and the seller, the object of the sale and the consideration; and
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(b) the delivery of the thing sold and its payment.
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(11) Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs During Parties, Social Gatherings or Meetings [Sec. 14] (12) Use of Dangerous Drugs [Sec. 15] (13) Cultivation or Culture of Plants Classified as Dangerous Drugs or are Sources Thereof. [Sec. 16] (14) Maintenance and Keeping of Original Records of Transactions on Dangerous Drugs and/or Controlled Precursors and Essential Chemicals [Sec. 17] (15) Unnecessary Prescription of Dangerous Drugs [Sec. 18] (16) Unlawful Prescription of Dangerous Drugs [Sec. 19]
There must be proof that the transaction or sale actually took place and that the corpus delicti be presented in court as evidence [People vs. Musa, 2012] (3) Maintenance of a Den, Dive or Resort. [Sec. 6] (4) Employees and Visitors of a Den, Dive or Resort [Sec. 7] (5) Manufacture of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals [Sec. 8] (6) Illegal Chemical Diversion of Controlled Precursors and Essential Chemicals. [Sec. 9] (7) Manufacture or Delivery of Equipment, Instrument, Apparatus, and Other Paraphernalia for Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. [Sec. 10] (8) Possession of Dangerous Drugs [Sec. 11] (a) the accused was in possession of the dangerous drug (b) such possession is not authorized by law (c) accused freely and consciously possessed the dangerous drug
PENALTIES FOR UNLAWFUL ACTS (1) The penalty of life imprisonment to death and a fine ranging from P500,000 to P10,000,000 - Those acts which include or involve any dangerous drugs [Secs. 4, 5, 6, 8, 11, 16 and 19] (2) The penalty of 12 years and 1 day to 20 years of imprisonment and a fine ranging from P100,000.00 to P500,000 (a) Those acts which involve any controlled precursor and essential chemical [Secs. 4, 5, 6, 8, 9 and 10] (b) Anyone who acts as a "protector/ coddler" of any violator of the provisions under sections 4, 5, 6, 8 and 16 (c) Sections 7, 10, 16, 17. (3) The maximum penalty provided for under sections 4, 5, 6, 8 and 16 shall be imposed upon any person, who organizes, manages or acts as a "financier" of any of the illegal activities prescribed in those sections. (4) Any person charged under any provision of this Act regardless of the imposable penalty shall not be allowed to avail of the provision on plea-bargaining. [Sec. 23, Art. II, RA 9165]
(9) Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs [Sec. 12] (10) Possession of Dangerous Drugs During Parties, Social Gatherings or Meetings [Sec. 13] (a) the accused was in possession of the dangerous drug, (b) such possession is not authorized by law (c) the accused freely and consciously possessed the dangerous drug (d) the possession of the dangerous drug must have occurred during a party, or at a social gathering or meeting, or in the proximate company of at least two (2) persons [People vs. Martinez, 2010] 205
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Any person who is found guilty of "planting" any dangerous drug and/or controlled precursor and essential chemical, regardless of quantity and purity, shall suffer the penalty of death. [Sec. 29, Art. II, RA 9165]
Any person convicted for drug trafficking or pushing under this Act, regardless of the penalty imposed by the Court, cannot avail of the privilege granted by the Probation Law or Presidential Decree No. 968, as amended. [Sec. 24, Art. II, RA 9165]
In case any violation of this Act is committed by a partnership, corporation, association or any juridical entity, the partner, president, director, manager, trustee, estate administrator, or officer who consents to or knowingly tolerates such violation shall be held criminally liable as a co-principal. [Sec. 30, Art. II, RA 9165]
Notwithstanding the provisions of any law to the contrary, a positive finding for the use of dangerous drugs shall be a qualifying aggravating circumstance in the commission of a crime by an offender, and the application of the penalty provided for in the Revised Penal Code shall be applicable. [Sec. 25, Art. II, RA 9165]
In addition to the penalties prescribed in the unlawful act committed, any alien who violates such provisions of this Act shall, after service of sentence, be deported immediately without further proceedings, unless the penalty is death. [Sec. 31, Art. II, RA 9165]
Any attempt or conspiracy to commit the following unlawful acts shall be penalized by the same penalty prescribed for the commission of the same as provided under this Act [Sec. 26, Art. II, RA 9165]: (a) Importation of any dangerous drug and/or controlled precursor and essential chemical; (b) Sale, trading, administration, dispensation, delivery, distribution and transportation of any dangerous drug and/or controlled precursor and essential chemical; (c) Maintenance of a den, dive or resort where any dangerous drug is used in any form; (d) Manufacture of any dangerous drug and/or controlled precursor and essential chemical; (e) Cultivation or culture of plants which are sources of dangerous drugs.
Accessory Penalties: A person convicted under this Act shall be disqualified to exercise his/her civil rights such as but not limited to: (1) the rights of parental authority or guardianship, either as to the person or property of any ward; (2) the rights to dispose of such property by any act or any conveyance inter vivos, and (3) political rights such as but not limited to the right to vote and be voted for. Such rights shall also be suspended during the pendency of an appeal from such conviction. [Sec. 35, Art. II, RA 9165] Possession of marijuana is absorbed in the sale thereof, except where the seller is further apprehended in possession of another quantity of the prohibited drugs not covered by or included in the sale and which are probably intended for some future dealings or use by the seller. [People vs. Lacerna, 1997]
The maximum penalties of the unlawful acts provided for in this Act shall be imposed, in addition to absolute perpetual disqualification from any public office, if those found guilty of such unlawful acts are government officials and employees. [Sec. 28, Art. II, RA 9165]
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The crime of illegal sale of dangerous drugs necessarily includes the crime of illegal possession of dangerous drugs. The same ruling may also be applied to the other acts penalized under Article II, Section 5 of Republic Act No. 9165 because for the accused to be able to trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit, or transport any dangerous drug, he must necessarily be in possession of said drugs [People vs. Maongco, 2013]
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witness; (e) The informant or witness shall strictly and faithfully comply without delay, any condition or undertaking, reduced into writing, lawfully imposed by the State as further consideration for the grant of immunity from prosecution and punishment. Provided, further, That this immunity may be enjoyed by such informant or witness who does not appear to be most guilty for the offense with reference to which the information or testimony were given: Provided, finally, That there is no direct evidence available for the State except for the information and testimony of said informant or witness. [Sec. 33, Art. II, RA 9165]
IMMUNITY FROM PROSECUTION AND PUNISHMENT (1) Any person who has violated Sections 7, 11, 12, 14, 15, and 19, Article II of this Act, (2) Who voluntarily gives information about any violation of Sections 4, 5, 6, 8, 10, 13, and 16, Article II of this Act as well as any violation of the offenses mentioned if committed by a drug syndicate, or any information leading to the whereabouts, identities and arrest of all or any of the members thereof; (3) Who willingly testifies against such persons as described above, shall be exempted from prosecution or punishment for the offense with reference to which his/her information of testimony were given, and may plead or prove the giving of such information and testimony in bar of such prosecution: Provided the following conditions concur: (a) The information and testimony are necessary for the conviction of the persons described above; (b) Such information and testimony are not yet in the possession of the State; (c) Such information and testimony can be corroborated on its material points; (d) The informant or witness has not been previously convicted of a crime involving moral turpitude, except when there is no other direct evidence available for the State other than the information and testimony of said informant or
Termination of Grant of Immunity [Sec. 34, Art. II, RA 9165]: (1) The immunity granted to the informant or witness, as prescribed in Section 33 of this Act, shall not attach should it turn out subsequently that the information and/or testimony is false, malicious or made only for the purpose of harassing, molesting or in any way prejudicing the persons described in the preceding Section against whom such information or testimony is directed. In such case, the informant or witness shall be subject to prosecution and the enjoyment of all rights and benefits previously accorded him under this Act or any other law, decree or order shall be deemed terminated. (2) In case an informant or witness under this Act fails or refuses to testify without just cause, and when lawfully obliged to do so, or violate any condition accompanying such immunity as provided above, his/her immunity shall be removed and he/she shall likewise be subject to contempt and/or criminal prosecution, as the case may be, and the enjoyment of all rights and benefits previously accorded him under this 207
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Act or in any other law, decree or order shall be deemed terminated.
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(6) The PDEA shall then within 24 hours proceed with the destruction or burning of the same, in the presence of the accused, his his/her representative or counsel, a representative from the media and the DOJ, civil society groups and any elected public official. (7) The Board shall then issue a sworn certification to the fact of destruction or burning of the subject items which, together with the representative samples in the custody of the PDEA, shall be submitted to the court having jurisdiction over the case. In all instances, the representative sample/s shall be kept to a minimum quantity as determined by the Board; (8) After the promulgation and judgment in the criminal case wherein the representative sample/s was presented as evidence in court, the trial prosecutor shall inform the Board of the final termination of the case and, in turn, shall request the court for leave to turn over the said representative sample/s to the PDEA for proper disposition and destruction within 24 hours from receipt of the same.
Custody and Disposition of Seized Substances The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner [Sec. 21, Art. II, RA 9165]: (1) The apprehending team shall physically inventory and photograph the same in the presence of the accused, his representative or counsel, a representative from the media and the DOJ, and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; (2) Within 24 hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as paraphernalia and/or laboratory equipment, the same shall be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination; (3) A certification of the results, done under oath by the forensic laboratory examiner, shall be issued within 24 hours after receipt of the subject items. When the volume of the subject does not allow the completion of testing within 24 hours, a partial report shall be issued stating therein the quantity of dangerous drugs still to be examined by the forensic laboratory; and a final certification shall be issued on the completed forensic laboratory examination on the same within the next 24 hours; (4) Filing of the criminal case in court. (5) The Court shall, within 72 hours, conduct an ocular inspection of the confiscated, seized and/or surrendered items, including the instruments and/or laboratory equipment;
Chain of Custody – the duly recorded authorized movements and custody of subject items at each stage, from the time of seizure to presentation to the court for destruction. Such record of movements and custody of seized items shall include the identity and signature of the person who held temporary custody of the seized items, the date and time when such transfer of custody was made in the course of safekeeping and use in court as evidence, and the final disposition. [Sec. 1b, DDB Resolution No. 1, Series of 2002, implementing RA 9165] Non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid 208
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such seizures of and custody over said items. [Sec. 21a, IRR of RA 9165]
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Authorized Drug Testing The following shall be subjected to undergo drug testing: [Sec. 36, Art. III, RA 9165] (1) Applicants for driver’s license (2) Applicants for firearm’s license and permit to carry firearms outside of residence. All persons who by the nature of their profession carry firearms shall undergo drug testing. (3) Students of secondary or tertiary schools. (4) Officers and employees of public and private offices, whether domestic or overseas, as contained in the company’s work rules and regulations. Any officer or employee found positive for use of dangerous drugs shall be dealt with administratively which shall be a ground for suspension or termination, subject to the provisions of Article 282 of the Labor Code and pertinent provisions of the Civil Service Law. (5) Officers and members of the military, police and other law enforcement agencies (6) All persons charged before the prosecutor's office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one (1) day shall have to undergo a mandatory drug test.* (7) All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test.
Any person apprehended or arrested for violating the provisions of the Act shall be subjected to screening laboratory examination or test within 24 hours, if the apprehending or arresting officer has reasonable ground to believe that the person apprehended or arrested, on account of physical signs or symptoms or other visible or outward manifestation, is under the influence of dangerous drugs. If found to be positive, the results of the screening laboratory examination or test shall be challenged within 15 days after receipt of the result through a confirmatory test conducted in any accredited analytical laboratory equipped with a gas chromatograph/mass spectrometry equipment or some such modern and accepted method, and if confirmed, the same shall be prima facie evidence that such person has used dangerous drugs, which is without prejudice for the prosecution for other violations of the provisions of the Act: Provided, that a positive screening laboratory test must be confirmed for it to be valid in court of law. [Sec. 38, IRR of RA 9165] Non-presentation of the forensic chemist in illegal drug cases is an insufficient cause for acquittal. The corpus delicti (the body of the crime) in dangerous drugs cases constitutes the dangerous drug itself. [People vs. Quebral (2009)]
The testing requirement as to national officials whose qualification requirements have been set forth in the Constitution is unconstitutional. Where the Constitution has expressly set out the qualifications, these are exclusive and may not be broadened or circumscribed by legislative fiat. [SJS vs. DDB and PDEA (2008)]
The presumption of regularity of official acts does not apply when police officers have failed to comply with the standard of procedure set by law in a way that compromises the integrity and evidentiary value of the thing seized. In such case, the indispensable element of corpus delicti would not be proven. [Fajardo vs. People (2012)]
*The operative concepts in the mandatory drug testing are “randomness” and “suspicionless.” In the case of persons charged with a crime
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before the prosecutor’s office, a mandatory drug testing can never be random or suspicionless. It violates their right to privacy and selfincrimination, and is thus unconstitutional. [SJS v DDB and PDEA (2008)]
welfare of the accused drug dependent, whether under voluntary submission program or compulsory submission program, may be cited for contempt by the court. [Sec. 73, Art. VIII, RA 9165]
May a drug dependent who is found guilty of the use of dangerous drugs voluntarily submit himself for treatment and rehabilitation? Yes. The drug dependent may, by himself/herself or through his/her parent, spouse, guardian or relative within the fourth degree of consanguinity or affinity, apply to the Board or its duly recognized representative, for treatment and rehabilitation of the drug dependency.
How long will the drug dependent be confined for treatment and rehabilitation? Confinement in a Center for treatment and rehabilitation shall not exceed one (1) year, after which time the Court, as well as the Board, shall be apprised by the head of the treatment and rehabilitation center of the status of said drug dependent and determine whether further confinement will be for the welfare of the drug dependent and his/her family or the community. [Sec. 54, Art. VIII, RA 9165]
Upon such application, the Board shall bring forth the matter to the Court which shall order that the applicant be examined for drug dependency. [Sec. 54, Art. VIII, RA 9165]
How will a drug dependent who is under the voluntary submission program and is finally discharged from confinement in the Center be exempt from criminal liability? (1) He/she has complied with the rules and regulations of the center, the applicable rules and regulations of the Board, including the after-care and follow-up program for at least eighteen (18) months following temporary discharge from confinement in the Center (2) He/she has never been charged or convicted of any offense punishable under this Act, the Dangerous Drugs Act of 1972 or Republic Act No. 6425, as amended; the Revised Penal Code, as amended; or any special penal laws (3) He/she has no record of escape from a Center (4) He/she poses no serious danger to himself/herself, his/her family or the community by his/her exemption from criminal liability [Sec. 55, Art. VIII, RA 9165]
Is there also compulsory confinement? Yes. Notwithstanding any law, rule and regulation to the contrary, any person determined and found to be dependent on dangerous drugs shall, upon petition by the Board or any of its authorized representative, be confined for treatment and rehabilitation in any Center duly designated or accredited for the purpose. A petition for the confinement of a person alleged to be dependent on dangerous drugs to a Center may be filed by any person authorized by the Board with the Regional Trial Court of the province or city where such person is found. [Sec. 61, Art. VIII, RA 9165] Any parent, spouse or guardian who, without valid reason, refuses to cooperate with the Board or any concerned agency in the treatment and rehabilitation of a drug dependent who is a minor, or in any manner, prevents or delays the after-care, follow-up or other programs for the
What are the functions of the Dangerous Drugs Board?
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(1) Be the policy-making and strategyformulating body in the planning and formulation of policies and programs on drug prevention and control. (2) Develop and adopt a comprehensive, integrated, unified and balanced national drug abuse prevention and control strategy. (3) Be under the Office of the President. [Sec. 77, Art. IX, RA 9165]
CRIMINAL LAW
SPECIAL LAWS PD 1602: ANTI-GAMBLING ACT PD 1602, which repealed Articles 195-199 insofar as they are inconsistent with said Act – punishes: I. Any person who, in any manner, shall directly or indirectly take part in any illegal or unauthorized activities or games of— (1) Cockfighting, jueteng, jai alai or horse racing to include bookie operations and game fixing, numbers, bingo and other forms of lotteries; (2) Cara y cruz, pompiang and the like; (3) 7-11 and any game using dice; (4) Black jack, lucky nine, poker and its derivatives, monte, baccarat, cuajo, pangguigue and other card games; (5) Paik que, high and low, mahjong, domino and other games using plastic tiles and the like; (6) Slot machines, roulette, pinball and other mechanical contraptions and devices; (7) Dog racing, boat racing, car racing and other forms of races; (8) Basketball, boxing, volleyball, bowling, pingpong and other forms of individual or team contests to include game fixing, point shaving and other machinations; (9) Banking or percentage game, or any other game scheme, whether upon chance or skill, wherein wagers consisting of money, articles of value or representative of value are at stake or made; II. Any person who shall knowingly permit any form of gambling referred to in the preceding subparagraph to be carried on in an inhabited place or in any building, vessel or other means of transportation owned or controlled by him. III. Any person who shall knowingly permit any form of gambling to be carried on in a
What is the PDEA? The PDEA is the Philippine Drug Enforcement Agency. It serves as the implementing arm of the Dangerous Drugs Board. It shall be responsible for the efficient and effective law enforcement of all the provisions on any dangerous drug and/or controlled precursor and essential chemical as provided in this Act. [Sec. 82, Art. IX, RA 9165]
Title VI. Crimes against Public Morals CHAPTER I: GAMBLING AND BETTING (1) Gambling (Art. 195) (2) Importation, sale and possession of lottery tickets or advertisements (Art. 196) (3) Betting in sports contests (Art. 197) (4) Illegal betting on horse races (Art. 198) (5) Illegal cockfighting (Art. 199)
CHAPTER II: OFFENSES AGAINST DECENCY AND GOOD CUSTOMS (1) Grave Scandal (Art. 200) (2) Immoral doctrines, obscene publications and exhibitions (Art. 201) (3) Vagrancy and prostitution (Art. 202)
CHAPTER 1: GAMBLING AND BETTING Gambling - any game or scheme, whether upon chance or skill, wherein wagers consisting of money, articles of value or representative of value are at stake or made. 211
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place which has a reputation of a gambling place or that prohibited gambling is frequently carried on therein, or the place is a public or government building or barangay hall; IV. The maintainer or conductor of the above gambling schemes. (1) Maintainer: a person who sets up and furnishes the means with which to carry on the gambling game or scheme. (2) Conductor: a person who manages or carries on the gambling game or scheme. V. A government official who is a maintainer, conductor or banker of said gambling schemes, or the player, promoter, referee, umpire, judge or coach in case of game fixing, point shaving and machination. VI. Any person who shall, knowingly and without lawful purpose in any hour of any day, possess any lottery list, paper or other matter containing letters, figures, signs or symbols pertaining to or in any manner used in the games of jueteng, jai-alai or horse racing bookies, and similar games of lotteries and numbers which have taken place or about to take place. VII. Any barangay official who, with knowledge of the existence of a gambling house or place in his jurisdiction fails to abate the same or take action in connection therewith. VIII. Any security officer, security guard, watchman, private or house detective of hotels, villages, buildings, enclosures and the like which have the reputation of a gambling place or where gambling activities are being held.
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RA 9287: INCREASING THE PENALTY FOR ILLEGAL NUMBERS GAMES Illegal Numbers Game: any form of illegal gambling activity which uses numbers or combinations thereof as factors in giving out jackpots. The law punishes any person who participates in any illegal numbers game: (Section 3) (1) If such person acts as a bettor; (2) If such person acts as a personnel or staff of an illegal numbers game operation; (3) If such person allows his vehicle, house, building or land to be used in the operation of the illegal numbers games; (4) If such person acts as a collector or agent; (5) If such person acts as a coordinator, controller or supervisor; (6) If such person acts as a maintainer, manager or operator; (7) If such person acts as a financier or capitalist; (8) If such person acts as protector or coddler. The possession of any gambling paraphernalia and other materials used in the illegal numbers game operation shall be deemed prima facie evidence of any offense covered by this Act. (Section 4)
LETTER OF INSTRUCTION NO. 816 The games of domino, bingo, poker when not played with five cards stud, cuajo, pangguingue and mahjong, provided that they are played as parlor games or for home entertainment, and provided further, that they are not played in places habitually used for gambling and the betting is not disguised to defeat the intent of Presidential Decree No. 1602, are hereby exempted.
Any person who shall disclose information that will lead to the arrest and final conviction of the malefactor shall be rewarded twenty percent of the cash money or articles of value confiscated or forfeited in favor of the government. (Section 3)
Lottery is a scheme for the distribution of prices by chance among persons who have paid, or agreed to pay, a valuable consideration for the 212
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chance to obtain a prize. It has 3 elements: 1) Consideration, 2) Chance, 3) Prize or some advantage or inequality in amount or value which is in the nature of a prize [U.S. v Filart (1915)]
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other things of value, bets with other bettors or through the bet taker or promoter and wins or loses his bet depending upon the result of the cockfight as announced by the Referee or Sentenciador. He may be the owner of fighting cock.
COCKFIGHTING LAW OF 1974 [PD 449] Section 4. Definition of Terms. As used in this law, the following terms shall be understood, applied and construed as follows: (a) Cockfighting shall embrace and mean the commonly known game or term "cockfighting derby, pintakasi or tupada", or its equivalent terms in different Philippine localities. (b) Zoning Law or Ordinance. Either both national or local city or municipal legislation which logically arranges, prescribes, defines and apportions a given political subdivision into specific land uses as present and future projection of needs warrant. (c) Bet Taker of Promoter. A person who calls and takes care of bets from owners of both gamecocks and those of other bettors before he orders commencement of the cockfight and thereafter distributes won bets to the winners after deducting a certain commission. (d) Gaffer (Taga Tari). A person knowledgeable in the art of arming fighting cocks with gaff or gaffs on either or both legs. (e) Referee (Sentenciador). A person who watches and oversees the proper gaffing of fighting cocks, determines the physical condition of fighting cocks while cockfighting is in progress, the injuries sustained by the cocks and their capability to continue fighting and decides and make known his decision by work or gestures and result of the cockfight by announcing the winner or declaring a tie or no contest game. (f) Bettor. A person who participates in cockfights and with the use of money or
Section 5. Cockpits and Cockfighting: In General: (1) Ownership, Operation and Management of Cockpits. Only Filipino citizens not otherwise inhibited by existing laws shall be allowed to own, manage and operate cockpits. Cooperative capitalization is encouraged. (2) Establishment of Cockpits. Only one cockpit shall be allowed in each city or municipality, except that in cities or municipalities with a population of over one hundred thousand, two cockpits may be established, maintained and operated. (3) Cockpits Site and Construction. Cockpits shall be constructed and operated within the appropriate areas as prescribed in Zoning Law or Ordinance. In the absence of such law or ordinance, the local executives shall see to it that no cockpits are constructed within or near existing residential or commercial areas, hospitals, school buildings, churches or other public buildings. Owners, lessees, or operators of cockpits which are now in existence and do not conform to this requirement are given three years from the date of effectivity of this Decree to comply herewith. Approval or issuance of building permits for the construction of cockpits shall be made by the city or provincial engineer in accordance with their respective building codes, ordinances or engineering laws and practices. (4) Holding of Cockfights. Except as provided in this Decree, cockfighting shall be 213
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allowed only in licensed cockpits during Sundays and legal holidays and during local fiestas for not more than three days. It may also be held during provincial, city or municipal, agricultural, commercial or industrial fair, carnival or exposition for a similar period of three days upon resolution of the province, city or municipality where such fair, carnival or exposition is to be held, subject to the approval of the Chief of Constabulary or his authorized representative: Provided, that, no cockfighting on the occasion of such fair, carnival or exposition shall be allowed within the month of a local fiesta or for more than two occasions a year in the same city or municipality: Provided, further, that no cockfighting shall be held on December 30 (Rizal Day), June 12 (Philippine Independence Day) November 30 (National Heroes Day), Holy Thursday, Good Friday, Election or Referendum Day and during Registration Days for such election or referendum. (5) Cockfighting for Entertainment of Tourists or for Charitable Purposes. Subject to the preceding subsection hereof, the Chief Constabulary or his authorized representative may also allow the holding of cockfighting for the entertainment of foreign dignitaries or for tourists, or for returning Filipinos, commonly known as "Balikbayan", or for the support of national fund-raising campaigns for charitable purposes as may be authorized by the Office of the President, upon resolution of a provincial board, city or municipal council, in licensed cockpits or in playgrounds or parks: Provided, that this privilege shall be extended for only one time, for a period not exceeding three days, within a year to a province, city, or municipality. (6) Other games during cockfights prescribed. No gambling of any kind shall be permitted on the premises of the cockpit or place of
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cockfighting during cockfights. The owner, manager or lessee off such cockpit and the violators of this injunction shall be criminally liable under Section 8 hereof.
Section 6. Licensing of Cockpits. City and municipal mayors are authorized to issue licenses for the operation and maintenance of cockpits subject to the approval of the Chief of Constabulary or his authorized representatives. For this purpose, ordinances may be promulgated for the imposition and collection of taxes and fees not exceeding the rates fixed under Section 13, paragraphs (a) and (b); and 19; paragraph (g) 16 of Presidential Decree No. 231, dated June 28, 1973, otherwise known as the Local Tax Code, as amended. Section 7. Cockfighting Officials. Gaffers, referees or bet takers or promoters shall not act as such in any cockfight herein authorized, without first securing a license renewable every year on their birthmonth from the city or municipality where such cockfighting is held. Cities and municipalities may charge a tax of not more than twenty pesos. Only licensed gaffers, referees, bet takers or promoters shall officiate in all kinds of cockfighting authorized in this Decree.
Section 8. Penal Provisions. Any violation of the provisions of this Decree and of the rules and regulations promulgated by the Chief of Constabulary pursuant thereto shall be punished as follows: (a) By prision correccional in its maximum period and a fine of two thousand pesos, with subsidiary imprisonment in case of insolvency, when the offender is the financer, owner, manger or operator of cockpit, or the gaffer, referee or bet taker in cockfights; or the offender is guilty of allowing, promoting or participating in any 214
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other kind of gambling in the premises of cockfights during cockfights. (b) By prision correccional or a fine of not less than six hundred pesos nor more than two thousand pesos or both, such imprisonment and fine at the discretion of the court, with subsidiary imprisonment in case of insolvency, in case of any other offender.
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In conducts involving lasciviousness, it is grave scandal only where there is mutual consent. (Boado, Comprehensive Reviewer in Criminal Law) Any act which is notoriously offensive to decency may bring about criminal liability for the crime of grave scandal, Provided such act does not constitute some other crime under the Revised Penal Code.
CHAPTER II: OFFENSES AGAINST DECENCY AND GOOD CUSTOMS
Grave scandal is a crime of last resort.
ARTICLE 201 - IMMORAL DOCTRINES, OBSCENE PUBLICATIONS AND EXHIBITIONS AND INDECENT SHOWS
ARTICLE 200 - GRAVE SCANDAL Elements: (a) Offender performs an act or acts; (b) Such act or acts be highly scandalous as offending against decency or good customs; (c) The highly scandalous conduct is not expressly falling within any other article of this Code; and (d) The act or acts complained of be committed in a public place or within the public knowledge or view. (Reyes)
Acts punished (as amended by PD 960, and PD 969) Those who shall publicly expound or proclaim doctrines openly contrary to public morals; A. The authors of obscene literature, published with their knowledge in any form, the editors publishing such literature; the owners/operators of the establishment selling the same; B. Those who, in theaters, fairs, cinematographs, or any other place, exhibit indecent or immoral plays, scenes, acts, or shows, it being understood that the obscene literature or indecent or immoral plays, scenes, acts or shows, whether live or in film, which are proscribed by virtue hereof, shall include those which: (1) glorify criminals or condone crimes; (2) serve no other purpose but to satisfy the market for violence, lust or pornography; (3) offend any race, or religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public order, morals, good customs, established policies, lawful orders, decrees and edicts;
Decency - means proprietary of conduct; proper observance of the requirements of modesty, good taste, etc. Customs - established usage, social conventions carried on by tradition and enforced by social disapproval of any violation thereof. Grave Scandal - consists of acts which are offensive to decency and good customs which, having been committed publicly, have given rise to public scandal to persons who have accidentally witnessed the same. The acts must be performed in a public place or within the public knowledge or view. If it is committed in a private place, the crime of grave scandal is not committed.
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Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals.
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An actual exhibition of the sexual act can have no redeeming feature—no room for art. Therefore, it is a clear and unmitigated obscenity. [People v Padan (1957)]
Morals - imply conformity with the generally accepted standards of goodness or rightness in conduct or character, sometimes, specifically, to sexual conduct.
The Miller Test of Obscenity: [Miller v California (1973) – adopted in Fernando v CA (2006)] (1) Whether the average person, applying contemporary standards, would find the work, taken as a whole, appeals to prurient interest; (2) Whether the work depicts, in a patently offensive way, sexual conduct specifically defined by the applicable state law; (3) Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
Offense in any of the forms mentioned in the article is committed only when there is publicity The test of obscenity: (1) The test is objective. (2) It is more on the effect upon the viewer and not alone on the conduct of the performer. (3) If the material has the tendency to deprave and corrupt the mind of the viewer then the same is obscene and where such obscenity is made publicly, criminal liability arises. (4) As long as the pornographic matter or exhibition is made privately, there is no crime committed under the Revised Penal Code because what is protected is the morality of the public in general.
Mere possession of obscene materials, without intent to sell, exhibit or distribute, is not punishable under Article 201. The offense is committed only where there is publicity. So long as the materials are offered for sale, displayed, or exhibited to the public, one may be liable. [Fernando v CA (2006)]
Jurisprudence: Postcards of Philippine inhabitants in native attire were not obscene because the aggregate judgment of the community, and the moral sense of the people were not shocked by those pictures. They were not offensive to chastity but merely depicted persons as they actually lived. [People v Kottinger (1923)]
ARTICLE 202 PROSTITUTION (AMENDED BY RA 10158) Elements: (1) The offender is a woman; (2) She habitually indulges in sexual intercourse or lascivious conduct; (3) Such indulgence is for money or profit
The reaction of the public during the performance of a dance by one who had nothing to cover herself with, except nylon patches over her breasts and too abbreviated pair of nylon panties to interrupt her stark nakedness should be made the gauge in the determination of whether the dance or exhibition was indecent or immoral. [People v Aparici (1955)]
The term prostitution is applicable to a woman who for profit or money habitually engages in sexual or lascivious conduct. A man who engages in the same conduct – sex for money – is not a prostitute, but a vagrant. In law, the mere indulging in lascivious conduct habitually because of money or gain would 216
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amount to prostitution, even if there is no sexual intercourse. Virginity is not a defense.
for any other offense or felony. (Section 3, RA 10158)
Habituality is the controlling factor; it has to be more than one time.
Under the Mendicancy Law of 1978 (PD 1563), the following persons are liable: (a) The mendicant himself—one who has no visible and legal means of support, or lawful employment, and who is physically able to work but neglects to apply himself to some lawful calling and instead uses begging as a means of living. (b) Any person who abets mendicancy by giving alms directly to mendicants, exploited infants and minors on public roads, sidewalks, parks and bridges shall be punished by a fine.
There cannot be prostitution by conspiracy. One who conspires with a woman in the prostitution business like pimps, taxi drivers or solicitors of clients are guilty of the crime under Article 341 for white slavery. Before RA 10158, which decriminalized vagrancy, the following were liable under Article 202: (1) Any person, having no apparent means of subsistence, who has the physical ability to work and who neglects to apply himself to some lawful calling; (2) Any person found loitering about public or semipublic buildings or places or tramping or wandering about the country or the streets without visible means of support; (3) Any idle or dissolute person who lodges in houses of ill-fame, ruffians or pimps and those who habitually associate with prostitutes; (4) Any person who, not being included in the provisions of other articles in this Code, shall be found loitering in any inhabited or uninhabited place belonging to another without any lawful or justifiable purpose; (5) Prostitutes.
SPECIAL LAWS RA 9208: ANTI-TRAFFICKING PERSONS ACT
IN
Trafficking in Persons recruitment, transportation, transfer or harboring, or receipt of persons with or without the victim's consent or knowledge, within or across national borders by means of threat or use of force, or other forms of coercion, abduction, fraud, deception, abuse of power or of position, taking advantage of the vulnerability of the person, or, the giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation which includes at a minimum, the exploitation or the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery, servitude or the removal or sale of organs. The recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation shall also be considered as "trafficking in persons" even if it does not involve any of the aforementioned means.
All pending cases under the provisions of Article 202 of the Revised Penal Code on Vagrancy prior to its amendment by this Act shall be dismissed upon effectivity of this Act. [Section 2, RA 10158] All persons serving sentence for violation of the provisions of Article 202 on Vagrancy prior to its amendment by this Act shall be immediately released upon effectivity of this Act: Provided, That they are not serving sentence or detained
Acts of Trafficking in Persons
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It shall be unlawful for any person, natural or juridical, to commit any of the following acts (Section 4, RA 9208): i. To recruit, transport, transfer, harbor, provide, or receive a person by any means, including those done under the pretext of domestic or overseas employment or training or apprenticeship, for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; ii. To introduce or match for money, profit, or material, economic or other consideration, any person or, as provided for under Republic Act No. 6955, any Filipino woman to a foreign national, for marriage for the purpose of acquiring, buying, offering, selling or trading him/her to engage in prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; iii. To offer or contract marriage, real or simulated, for the purpose of acquiring, buying, offering, selling, or trading them to engage in prostitution, pornography, sexual exploitation, forced labor or slavery, involuntary servitude or debt bondage; iv. To undertake or organize tours and travel plans consisting of tourism packages or activities for the purpose of utilizing and offering persons for prostitution, pornography or sexual exploitation; v. To maintain or hire a person to engage in prostitution or pornography; vi. To adopt or facilitate the adoption of persons for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; vii. To recruit, hire, adopt, transport or abduct a person, by means of threat or use of force, fraud, deceit, violence, coercion, or intimidation for the purpose of removal or sale of organs of said person; and
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viii. To recruit, transport or adopt a child to engage in armed activities in the Philippines or abroad.
RA 10364 THE EXPANDED ANTITRAFFICKING IN PERSONS ACT OF 2012 Approved on Feb. 6, 2013, and amended Sec. 4 of RA 9208 as follows: Acts of Trafficking in Persons. It shall be unlawful for any person, natural or juridical, to commit any of the following acts: (6) To adopt persons by any form of consideration for exploitative purposes or to facilitate the same for purposes of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; (7) To adopt or facilitate the adoption of persons for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; (8) To recruit, hire, adopt, transport, transfer, obtain, harbor, maintain, provide, offer, receive or abduct a person, by means of threat or use of force, fraud, deceit, violence, coercion, or intimidation for the purpose of removal or sale of organs of said person; (9) To recruit, transport, obtain, transfer, harbor, maintain, offer, hire, provide, receive or adopt a child to engage in armed activities in the Philippines or abroad; (10) To recruit, transport, transfer, harbor, obtain, maintain, offer, hire, provide or receive a person by means defined in Section 3 of this Act for purposes of forced labor, slavery, debt bondage and involuntary servitude, including a scheme, plan, or pattern intended to cause the person either: (a) To believe that if the person did not perform such labor or services, he or
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she or another person would suffer serious harm or physical restraint; or (b) To abuse or threaten the use of law or the legal processes; and (11) To recruit, transport, transfer, harbor, obtain, maintain, offer, hire, provide or receive a person by means defined in Section 3 of this Act for purposes of forced labor, slavery, debt bondage and involuntary servitude, including a scheme, plan, or pattern intended to cause the person either: (a) To believe that if the person did not perform such labor or services, he or she or another person would suffer serious harm or physical restraint; or (b) To abuse or threaten the use of law or the legal processes; and (12) To recruit, transport, harbor, obtain, transfer, maintain, hire, offer, provide, adopt or receive a child for purposes of exploitation or trading them, including but not limited to, the act of baring and/or selling a child for any consideration or for barter for purposes of exploitation. Trafficking for purposes of exploitation of children shall include: (a) All forms of slavery or practices similar to slavery, involuntary servitude, debt bondage and forced labor, including recruitment of children for use in armed conflict; (b) The use, procuring or offering of a child for prostitution, for the production of pornography, or for pornographic performances; (c) The use, procuring or offering of a child for the production and trafficking of drugs; and (d) The use, procuring or offering of a child for illegal activities or work which, by its nature or the circumstances in which it is carried out, is likely to harm their health, safety or morals; and
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(13) To organize or direct other persons to commit the offenses defined as acts of trafficking under this Act." Acts that Promote Trafficking in Persons The following acts which promote or facilitate trafficking in persons, shall be unlawful (Section 5, RA 9208): a. To knowingly lease or sublease, use or allow to be used any house, building or establishment for the purpose of promoting trafficking in persons; b. To produce, print and issue or distribute unissued, tampered or fake counseling certificates, registration stickers and certificates of any government agency which issues these certificates and stickers as proof of compliance with government regulatory and pre-departure requirements for the purpose of promoting trafficking in persons; c. To advertise, publish, print, broadcast or distribute, or cause the advertisement, publication, printing, broadcasting or distribution by any means, including the use of information technology and the internet, of any brochure, flyer, or any propaganda material that promotes trafficking in persons; d. To assist in the conduct of misrepresentation or fraud for purposes of facilitating the acquisition of clearances and necessary exit documents from government agencies that are mandated to provide pre-departure registration and services for departing persons for the purpose of promoting trafficking in persons; e. To facilitate, assist or help in the exit and entry of persons from/to the country at international and local airports, territorial boundaries and seaports who are in possession of unissued, tampered or fraudulent travel documents for the
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purpose of promoting trafficking in persons; f. To confiscate, conceal, or destroy the passport, travel documents, or personal documents or belongings of trafficked persons in furtherance of trafficking or to prevent them from leaving the country or seeking redress from the government or appropriate agencies; g. To knowingly benefit from, financial or otherwise, or make use of, the labor or services of a person held to a condition of involuntary servitude, forced labor, or slavery. h. To tamper with, destroy, or cause the destruction of evidence, or to influence or attempt to influence witnesses, in an investigation or prosecution of a case under this Act; i. To destroy, conceal, remove, confiscate or possess, or attempt to destroy, conceal, remove, confiscate or possess, any actual or purported passport or other travel, immigration or working permit or document, or any other actual or purported government identification, of any person in order to prevent or restrict, or attempt to prevent or restrict, without lawful authority, the person’s liberty to move or travel in order to maintain the labor or services of that person; or j. To utilize his or her office to impede the investigation, prosecution or execution of lawful orders in a case under this Act."
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(c) When the crime is committed by a syndicate, or in large scale. Trafficking is deemed committed by a syndicate if carried out by a group of 3 or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against 3 or more persons, individually or as a group; (d) When the offender is an ascendant, parent, sibling, guardian or a person who exercises authority over the trafficked person or when the offense is committed by a public officer or employee; (e) When the trafficked person is recruited to engage in prostitution with any member of the military or law enforcement agencies; (f) When the offender is a member of the military or law enforcement agencies; and (g) When by reason or on occasion of the act of trafficking in persons, the offended party dies, becomes insane, suffers mutilation or is afflicted with HIV or AIDS. Qualified Trafficking in Persons. (4) When the offender is a spouse, an ascendant, parent, sibling, guardian or a person who exercises authority over the trafficked person or when the offense is committed by a public officer or employee; (5) xxxx (6) When the offender is a member of the military or law enforcement agencies; (7) When by reason or on occasion of the act of trafficking in persons, the offended party dies, becomes insane, suffers mutilation or is afflicted with Human Immunodeficiency Virus (HIV) or the Acquired Immune Deficiency Syndrome (AIDS); (8) When the offender commits one or more violations of Section 4 over a period of sixty (60) or more days, whether those days are continuous or not; and
Qualified Trafficking in Persons (Section 6, RA 9208): (a) When the trafficked person is a child; (b) When the adoption is effected through RA 8043, otherwise known as the "InterCountry Adoption Act of 1995" and said adoption is for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; 220
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(9) When the offender directs or through another manages the trafficking victim in carrying out the exploitative purpose of trafficking."
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use of force or intimidation, to a victim deprived of reason or to an unconscious victim, or a victim under twelve (12) years of age, instead of the penalty prescribed in the subparagraph above the penalty shall be a fine of not less than One million pesos (P1,000,000.00) but not more than Five million pesos (P5,000,000.00) and imprisonment of reclusion perpetua or forty (40) years imprisonment with no possibility of parole; except that if a person violating paragraph (a) of this section knows the person that provided prostitution services is in fact a victim of trafficking, the offender shall not be likewise penalized under this section but under Section 10 as a person violating Section 4; and if in committing such an offense, the offender also knows a qualifying circumstance for trafficking, the offender shall be penalized under Section 10 for qualified trafficking. If in violating this section the offender also violates Section 4, the offender shall be penalized under Section 10 and, if applicable, for qualified trafficking instead of under this section; (b) Deportation. – If a foreigner commits any offense described by paragraph (1) or (2) of this section or violates any pertinent provision of this Act as an accomplice or accessory to, or by attempting any such offense, he or she shall be immediately deported after serving his or her sentence and be barred permanently from entering the country; and (c) Public Official. – If the offender is a public official, he or she shall be dismissed from service and shall suffer perpetual absolute disqualification to hold public, office, in addition to any imprisonment or fine received pursuant to any other provision of this Act."
Any person who buys or engages the services of trafficked persons for prostitution shall be penalized as follows (Section 11, RA 9208): (a) First offense - 6 months of community service as may be determined by the court and a fine of P50,000; (b) Second and subsequent offenses imprisonment of 1 year and a fine of P100,000. RA 10364 amended Sec. 11 of RA 9208 as follows: Use of Trafficked Persons. – Any person who buys or engages the services of a trafficked person for prostitution shall be penalized with the following: Provided, That the Probation Law (Presidential Decree No. 968) shall not apply: (a) Prision Correccional in its maximum period to prision mayor or six (6) years to twelve (12) years imprisonment and a fine of not less than Fifty thousand pesos (P50,000.00) but not more than One hundred thousand pesos (P100,000.00): Provided, however, That the following acts shall be exempted thereto: (1) If an offense under paragraph (a) involves sexual intercourse or lascivious conduct with a child, the penalty shall be reclusion temporal in its medium period to reclusion perpetua or seventeen (17) years to forty (40) years imprisonment and a fine of not less than Five hundred thousand pesos (P500,000.00) but not more than One million pesos (P1,000,000.00); (2) If an offense under paragraph (a) involves carnal knowledge of, or sexual intercourse with, a male or female trafficking victim and also involves the 221
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In cases where the victim is a child, any of the following acts shall also be deemed as attempted trafficking in persons: (1) 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; (2) Executing, for a consideration, an affidavit of consent or a written consent for adoption; (3) Recruiting a woman to bear a child for the purpose of selling the child; (4) Simulating a birth for the purpose of selling the child; and (5) 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.
Trafficked persons shall be recognized as victims of the act or acts of trafficking and as such shall not be penalized for crimes directly related to the acts of trafficking enumerated in this Act or in obedience to the order made by the trafficker in relation thereto. In this regard, the consent of a trafficked person to the intended exploitation set forth in this Act shall be irrelevant. (Section 17, RA 9208) Note on Section 17: Persons trafficked (including prostitutes) are exempt from criminal liability. Note also: Under RA 9208, persons who hire trafficked persons are criminally liable (Section 11). Not so in Art 202 RPC. Under RA 10364, it is provided that victims of trafficking for purposes of prostitution as defined under Section 4 of this Act are not covered by Article 202 of the Revised Penal Code and as such, shall not be prosecuted, fined, or otherwise penalized under the said law. Prostitution is defined as any act, transaction, scheme or design involving the use of a person by another, for sexual intercourse or lascivious conduct in exchange for money, profit or any other consideration. RA 10364 also added new sections on attempted trafficking of persons (Sec. 4-A), accomplice liability (Sec. 4-B) and accessories (Sec. 4-C).
Accomplice - knowingly aids, abets, cooperates in the execution of the offense by previous or simultaneous acts defined in this Act Accessories. – Whoever has the knowledge of the commission of the crime, and without having participated therein, either as principal or as accomplices, take part in its commission in any of the following manners: (a) By profiting themselves or assisting the offender to profit by the effects of the crime; (b) By concealing or destroying the body of the crime or effects or instruments thereof, in order to prevent its discovery; (c) By harboring, concealing or assisting in the escape of the principal of the crime, provided the accessory acts with abuse of his or her public functions or is known to be habitually guilty of some other crime.
Attempted Trafficking in Persons. – 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.
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Title VII. Crimes Committed by Public Officers
C. Article 219 - Failure of a Responsible Public Officer to Render Accounts Before Leaving the Country D. Art. 220 - Illegal Use of Public Funds or Property E. Art. 221 - Failure to Make Delivery of Public Funds or Property F. Art. 222 - Officers Included in the Preceding Provisions
CHAPTER 1: PRELIMINARY PROVISIONS (a) Art. 203 - Who Are Public Officers
CHAPTER 2: MALFEASANCE MISFEASANCE IN OFFICE
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AND
CHAPTER 5: INFIDELITY OF PUBLIC OFFICERS
(a) Art. 204 - Knowingly Rendering Unjust Judgment (b) Art. 205 - Judgment Rendered Through Negligence (c) Art. 206 - Unjust Interlocutory Order (d) Art. 207 - Malicious Delay in the Administration of Justice (e) Art. 208 - Prosecution of Offenses; Negligence and Tolerance (f) Art. 209 - Betrayal of Trust by an Attorney or a Solicitor - Revelation of Secrets (g) Art. 210 - Direct Bribery (h) Art. 211 - Indirect Bribery (i) Art. 211-A - Qualified Bribery (j) Art. 212 - Corruption of Public Officials (k) Art. 214 - Other Frauds
(1) Art. 223 - Conniving With or Consenting to Evasion (2) Art. 224 - Evasion through Negligence (3) Art. 225 - Escape of Prisoner under the Custody of a Person Not a Public Officer (4) Art. 226 - Removal, Concealment, or Destruction of Documents (5) Art. 227 - Officer Breaking Seal (6) Art. 228 - Opening of Closed Documents (7) Art. 229 - Revelation of Secrets by an Officer (8) Art. 230 - Public Officers Revealing Secrets of Private Individuals
CHAPTER 6: OTHER OFFENSES AND IRREGULARITIES BY PUBLIC OFFICERS (1) Art. 231 - Open Disobedience (2) Art. 232 - Disobedience to the Order of Superior Officer When Said Order Was Suspended by Inferior Officer (3) Art. 233 - Refusal of Assistance (4) Art. 234 - Refusal to Discharge Elective Office (5) Art. 235 - Maltreatment of Prisoners (6) Art. 236 - Anticipation of Duties of a Public Officer (7) Art. 237 - Prolonging Performance of Duties and Powers (8) Art. 238 - Abandonment of Office or Position (9) Art. 239 - Usurpation of Legislative Powers (10) Art. 240 - Usurpation of Executive Functions
CHAPTER 3: FRAUDS AND ILLEGAL EXACTIONS AND TRANSACTIONS 1.
Art. 213 - Fraud against the Public Treasury and Similar Offenses 2. Art. 215 - Prohibited Transactions 3. Art. 216 - Possession of Prohibited Interest by a Public Officer
CHAPTER 4: MALVERSATION OF PUBLIC FUNDS AND PROPERTIES A. Art. 217 - Malversation of Public Funds or Property - Presumption of Malversation B. Art. 218 - Failure of Accountable Officer to Render Accounts
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(11) Art. 241 - Usurpation of Judicial Functions (12) Art. 242 - Disobeying Request for Disqualification (13) Art. 243 - Orders or Request by Executive Officer to Any Judicial Authority (14) Art. 244 - Unlawful Appointments (15) Art. 245 - Abuses against Chastity
"Public officer" includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the government (Sec. 2(c), RA 3019) The term “public officers” embraces every public servant from the highest to lowest.
Note: This is one of the instances where the Revised Penal Code may be given extra-territorial application under Article 2 (5) thereof.
Dacumas v. Sandiganbayan expanded the meaning of “official duties”. It included those which may be in one’s capacity to perform by reason of his office.
Crimes under this title can be committed by public officers or a non-public officer, when the latter becomes a conspirator with a public officer, or an accomplice, or accessory to the crime. The public officer has to be the principal.
CHAPTER PROVISIONS
I:
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Officers and employees of government owned and controlled corporations included but not those of a sequestered corporation. The better rule is that GOCCs created by law are covered while GOCCs registered with the SEC (including sequestered companies) are not. [Macalino v. Sandiganbayan]
PRELIMINARY
ART. 203 - WHO ARE PUBLIC OFFICERS Requisites: (1) Taking part in the performance of public functions in the government; (2) Performing in said government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class; (3) His authority to take part in the performance of public functions or to perform public duties must be – a. By direct provision of the law; b. By popular election; or c. By appointment by competent authority "Public Officials" includes elective and appointive officials and employees, permanent or temporary, whether in the career or noncareer service, including military and police personnel, whether or not they receive compensation, regardless of amount (Sec. 3(b) RA 6713)
The more recent case of People v. Sandiganbayan held that, based on RA 8249, presidents, directors, trustees, and managers of all GOCCs, regardless of type, are subject to the jurisdiction of the Sandiganbayan when they are involved in graft and corruption.
CHAPTER II: MALFEASANCE AND MISFEASANCE IN OFFICE Malfeasance (Direct Bribery and Indirect Bribery) Misfeasance (see Arts 204-207: acts by a judge) Nonfeasance (Prosecution)
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The performance of an act which ought not to be done Improper performance of some act which might lawfully be done Omission of some act which ought to be performed
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ARTICLE 204 - KNOWINGLY RENDERING UNJUST JUDGMENT
dismissal of the administrative complaint [Diego v. Castillo, 2004, citing Alforte v. Santos]
Elements: (1) Offender is a judge; (2) He renders a judgment in a case submitted to him for decision; (3) Judgment is unjust; (4) The judge knows that his judgment is unjust.
ARTICLE 205 - JUDGMENT RENDERED THROUGH NEGLIGENCE Elements: (a) Offender is a judge; (b) He renders a judgment in a case submitted to him for decision; (c) The judgment is manifestly unjust; (d) It is due to his inexcusable negligence or ignorance.
Judgment - the final consideration and determination of a court of competent jurisdiction upon matters submitted to it, in an action or proceeding.
A manifestly unjust judgment is one which is so manifestly contrary to law that even a person having basic knowledge of the law cannot doubt the injustice. Abuse of discretion or mere error of judgment, not punishable.
An unjust judgment is one which is contrary to law or is not supported by the evidence, or both. Defense: Mere error in good faith. There must be positive evidence imputing an unjust judgment; presumption will not suffice.
The Supreme Court held that a judgment is said to be unjust when it is contrary to the standards of conduct prescribed by law.
The source of an unjust judgment may be either a) error, b) ill-will or revenge, or c) bribery.
The test to determine whether an order or judgment is unjust may be inferred from the circumstances that it is contrary to law or is not supported by evidence. [Louis Vuitton SA v. Judge Villanueva]
The offense refers only to a judgment of an individual judge in his court, and not to the judgment rendered in a collegial court by the members thereof [In Re: Wenceslao Laureta (1987)]
ARTICLE 206 - UNJUST INTERLOCUTORY ORDER
Before a criminal action against a judge for violation of Articles 204 and 205 can be entertained, there must be a trial or authoritative judicial declaration that his decision or order is really unjust which may result from either an action of certiorari or prohibition in a higher court. [De Vera v. Pelayo (2000)]
Elements: (a) Offender is a judge; (b) He performs any of the following acts: (a) Knowingly rendering an unjust interlocutory order or decree; or (b) Rendering a manifestly unjust interlocutory order or decree through inexcusable negligence or ignorance.
Malice or bad faith on the part of the judge in rendering an unjust decision must still be proved and failure on the part of the complainant to prove the same warrants the 225
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If the order leaves something to be done in the trial court with respect to the merits of the case, it is interlocutory. If it does not, it is final.
the crime, he does not cause the prosecution of the criminal, or knowing that a crime is about to be committed, he tolerates its commission; (c) Offender acts with malice and deliberate intent to favor the violator of the law.
The unjust interlocutory order must have been issued by the judge with deliberate intent to cause damage to the party concerned.
Public officer - officers of the prosecution department, whose duty is to institute criminal proceedings for felonies upon being informed of their perpetration, i.e. city attorney, fiscal.
ARTICLE 207 - MALICIOUS DELAY IN THE ADMINISTRATION OF JUSTICE Elements:
Officer of the law - those who, by reason of the position held by them, are duty-bound to cause prosecution and punishment of offenders, i.e. chief of police, barrio captain.
1. Offender is a judge; 2. There is a proceeding in his court; 3. He delays in the administration of justice; 4. The delay is malicious, that is, with deliberate intent to inflict damage on either party in the case.
Also known as prevaricacion. “Negligence” in the title must be construed to mean neglect of the duties of his office by maliciously failing to move the prosecution and punishment of the delinquent. The crime committed by the law violator must be proved first. [US v. Mendoza]
Malice must be proven. Malice is present where the delay is sought to favor one party to the prejudice of the other.
Liability of the public officer who, having the duty of prosecuting the offender, harbored, concealed, or assisted in the escape of the latter, is that of a principal in the crime of dereliction of duty in the prosecution of the offense.
Mere delay without malice is not a felony under this provision.
ARTICLE 208 OFFENSES; TOLERANCE
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- PROSECUTION OF NEGLIGENCE AND
ARTICLE 209 – BETRAYAL OF TRUST BY AN ATTORNEY OR A SOLICITOR – REVELATION OF SECRETS
Modes (a) Maliciously refraining from instituting prosecution against violators of the law; (b) Maliciously tolerating the commission of offenses.
Elements: (1) Causing damage to his client, either— (1) By any malicious breach of professional duty; (2) By inexcusable negligence or ignorance. (2) Revealing any of the secrets of his client learned by him in his professional capacity (damage is not necessary);
Elements: (a) Offender is a public officer or officer of the law who has a duty to cause the prosecution of, or to prosecute, offenses; (b) There is a dereliction of the duties of his office, that is, knowing the commission of 226
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(3) Undertaking the defense of the opposing party in the same case, without the consent of his first client, (a) after having undertaken the defense of said first client, or (b) after having received confidential information from said client.
first client whose defense has already been undertaken. The Supreme Court held that not all information received by counsel from the client is classified as privileged. A distinction must be made between confidential communications relating to past crimes already committed, and future crimes intended to be committed by the client. The attorney-client privilege only covers past crimes. [People v. Sandiganbayan]
When the attorney acts with malicious abuse of his employment or inexcusable negligence or ignorance, there must be damage to his client. Communications made with prospective clients to a lawyer with a view to engaging his professional services are already privileged even though the client-lawyer relationship did not eventually materialize.
ARTICLE 210 - DIRECT BRIBERY Modes (a) Agreeing to perform, or performing, in consideration of any offer, promise, gift or present; an act constituting a crime, in connection with the performance of his official duties; (b) Accepting a gift in consideration of the execution of an act which does not constitute a crime, in connection with the performance of his official duty; (c) Agreeing to refrain, or by refraining, from doing something which is his official duty to do, in consideration of gift or promise.
The confidential matters or information must be confided to the lawyer in the latter’s professional capacity. Mere malicious breach without damage is not a violation of Article 209; at most he will be liable administratively as a lawyer, e.g., suspension or disbarment under the Code of Professional Responsibility. Modes of Commission: (a) Maliciously causing damage to his client through a breach of his professional duty.
(b) (c) (d) (e)
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Elements: (a) Offender is a public officer within the scope of Article 203; (b) Offender accepts an offer or a promise or receives a gift or present by himself or through another; (c) Such offer or promise be accepted, or gift or present received by the public officer – 1. With a view to committing some crime; or 2. In consideration of the execution of an act which does not constitute a crime, but the act must be unjust; or 3. To refrain from doing something which it is his official duty to do.
Note: The breach of professional duty must be malicious. If it is just incidental, it would not give rise to criminal liability, although it may be the subject of administrative discipline; Through gross ignorance, causing damage to the client; Inexcusable negligence; Revelation of secrets learned in his professional capacity; Undertaking the defense of the opposite party in a case without the consent of the
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(d) The act which offender agrees to perform or which he executes be connected with the performance of his official duties.
The THIRD MODE of bribery and prevaricacion (Art 208) are similar offenses, both consisting of omission of an act required to be performed.
The crime of bribery has no frustrated stage. If one party does not concur, then there is no agreement and not all the acts necessary to commit the crime were present.
In direct bribery however, a gift or promise is given in consideration of the omission. This is not necessary in prevaricacion. Direct bribery does not absorb Art. 208 (dereliction of duty). See Qualified Bribery (211A)
Temporary performance of public functions is sufficient to constitute a person a public officer. Bribery exists when the gift is: (a) voluntarily offered by a private person; (b) solicited by the public officer and voluntarily delivered by the private person; (c) solicited by the public officer but the private person delivers it out of fear of the consequences should the public officer perform his functions (here the crime by the giver does not fall under corruption of public officials due to the involuntariness of the act).
Police Sergeant Malfrosque asked and accepted money in exchange for the recovery of the reported stolen gas tanks to the owners. This made him liable under the 2nd mode of Art 210 since the act of returning the gas tanks to the owners does not constitute a crime; he demanded money and said act was in connection with the performance of his duty as a policeman. [People v. Malfrosque (2004)]
ARTICLE 211 - INDIRECT BRIBERY
In the FIRST MODE of bribery, actual receipt of the gift is not necessary.
Elements: (1) Offender is a public officer; (2) He accepts gifts; (3) The gifts are offered to him by reason of his office.
An accepted offer or promise of a gift is sufficient. However, if the offer is not accepted, only the person offering the gift is liable for attempted corruption of a public officer.
The principal distinction between direct and indirect bribery is that in the former, the officer agrees to perform or refrain from doing an act in consideration of the gift or promise. In the latter case, it is not necessary that the officer do any act. It is sufficient that he accepts the gift offered by reason of his office.
In the SECOND MODE of bribery, the gift must be accepted by the public officer. The GIFT must have a value or capable of pecuniary estimation. It could be in the form of money, property or services. It cannot consist of a mere offer or promise of a gift.
If after receiving the gift, the officer does any act in favor of the giver which is unfair to the others, the crime continues to be indirect bribery. Precisely the evil of indirect bribery is in its tendency to produce future, unspecified, and unwarranted favors from the official.
If the act required of the public officer amounts to a crime and he commits it, he shall be liable for the penalty corresponding to the crime.
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(c) Offender refrains from arresting or prosecuting in consideration of any offer, promise, gift, or present.
This is always in the consummated stage. There is no attempted much less frustrated stage in indirect bribery.
The crime of qualified bribery may be committed only by public officers “entrusted with enforcement” (those whose official duties authorize them to arrest or prosecute offenders).
There must be clear intention on the part of the public officer: (a) to take the gift offered and (b) consider the property as his own for that moment.
The penalty is qualified if the public officer is the one who asks or demands such present.
Mere physical receipt unaccompanied by any other sign, circumstance or act to show such acceptance is not sufficient to convict the officer. “Gift" refers to a thing or a right to dispose of gratuitously, or any act or liberality, in favor of another who accepts it, and shall include a simulated sale or an ostensibly onerous disposition thereof. It shall not include an unsolicited gift of nominal or insignificant value not given in anticipation of, or in exchange for, a favor from a public official or employee. (Sec. 3(c), RA 6713)
If the penalty imposed is lower than reclusion perpetua and/or death had the offender been arrested or the crime prosecuted, the crime is direct bribery. The dereliction of the duty punished under Article 208 of the Revised Penal Code is absorbed in Qualified Bribery.
ARTICLE 212 - CORRUPTION OF PUBLIC OFFICIALS
“Receiving any gift" includes the act of accepting directly or indirectly a gift from a person other than a member of the public officer's immediate family, in behalf of himself or of any member of his family or relative within the fourth civil degree, either by consanguinity or affinity, even on the occasion of a family celebration or national festivity like Christmas, if the value of the gift is under the circumstances manifestly excessive. (Section 2(c), RA 3019)
Elements: 1. Offender makes offers or promises or gives gifts or presents to a public officer; 2. The offers or promises are made or the gifts or presents given to a public officer, under circumstances that will make the public officer liable for direct bribery or indirect bribery. The offender is the giver of the gift or the offeror of the promise.
ARTICLE 211-A - QUALIFIED BRIBERY Elements: (a) Offender is a public officer entrusted with law enforcement; (b) He refrains from arresting or prosecuting an offender who has committed a crime punishable by reclusion perpetua and/or death;
The act may or may not be accomplished. Whenever any public officer or employee has acquired during his incumbency an amount of property which is manifestly out of proportion to his salary as such public officer or employee and to his other lawful income and the income from legitimately acquired property, said property shall be presumed prima facie to have been 229
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unlawfully acquired. If the respondent is unable to show to the satisfaction of the court that he has lawfully acquired the property in question, then the court shall declare such property, forfeited in favor of the State. (R.A. 1379)
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competent authority or an offense in connection with the official duties of the latter, or 2) allowing himself to be persuaded, induced, or influenced to commit such violation or offense.
The following shall be exempt from prosecution or punishment for the offense with reference to which his information and testimony was given: 1. Any person who voluntarily gives information about any violation of (1) Articles 210, 211, and 212 of the RPC; (2) R.A. 3019, as amended; (3) Section 345 of the Internal Revenue Code and Section 3604 of the Tariff and Customs Code and other provisions of the said Codes penalizing abuse or dishonesty on the part of the public officials concerned; (4) Other laws, rules and regulations punishing acts of graft, corruption and other forms of official abuse; 2. Any person who willingly testifies against any public official or employee for such violation. (Section 1, PD 749)
Requesting or receiving any gift, present, or benefit is not required in this provision (Reyes). (b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other party, wherein the public officer in his official capacity has to intervene under the law.
Whether or not the public officer demanded for gifts or benefits is immaterial, for the Act uses the words “requesting or receiving”. This section refers to a public officer whose official intervention is required by law in a contract or transaction. [Jaravata v. Sandiganbayan (1984)] 1. Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the help given or to be given. 2. Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination. 3. Causing any undue injury to any party, including the Government, or giving any
SPECIAL LAWS RA 3019: ANTI-GRAFT AND CORRUPT PRACTICES The act covers: (1) Public Officers (Sec. 3); (2) Private Individuals (Sec. 4); (3) Certain Relatives (Sec. 5);Members of Congress (Sec. 6) Section 3. Corrupt Practices of Public Officers - In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: (a) 1) Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by 230
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private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.
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whether or not the public officer profited or will profit thereby. 6. Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest.
The fact that the damage was caused when the accused was no longer in the discharge his official functions will not remove his classification as a public officer. It is precisely the taking advantage of his official position which showed evident bad faith and caused undue injury.
A mayor who has divested himself of shares in a corporation which had a contract with the government before his assumption to office, even if the divestment was to a relative, is not liable under 3 (h). What the law wants to prevent is actual intervention in a transaction in which the public official has financial or pecuniary interest. [Trieste v. Sandiganbayan (1986)]
The last sentence of paragraph (e) is intended to make clear the inclusion of officers and employees of offices or government corporations which, under the ordinary concept of “public officers” may not come within the term. It is a strained construction of the provision to read it as applying exclusively to public officers charged with the duty of granting licenses or permits or other concessions [Mejorada v. Sandiganbayan (1987)]
(1) Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act requiring the approval of a board, panel or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in the action of the board, committee, panel or group.
4. Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party.
Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly unlawful, inequitable, or irregular transaction or acts by the board, panel or group to which they belong. (2) Knowingly approving or granting any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege or advantage, or of a mere representative or dummy of one who is not so qualified or entitled.
5. Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, 231
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(3) Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date.
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business, nor to any transaction, contract or application already existing or pending at the time of such assumption of public office. (2) Any application filed by him the approval of which is not discretionary on the part of the official or officials concerned but depends upon compliance with requisites provided by law, or rules or regulations issued pursuant to law; (3) Any act lawfully performed in an official capacity or in the exercise of a profession.
Section 4. Prohibition on private individuals. (a) Taking advantage of family or close personal relation with any public official, by directly or indirectly requesting or receiving any present or pecuniary advantage from any person having some business, transaction, application, request or contract with the government, in which such public official has to intervene.
Section 6. Prohibition on Members of Congress. (a) A member of Congress during the term for which he has been elected, to acquire or receive any personal pecuniary interest in any specific business enterprise which will be directly and particularly favored or benefited by any law or resolution authored by him previously approved or adopted by Congress during the same term. (b) Any other public officer who recommended the initiation in Congress of the enactment or adoption of any law or resolution, and acquires or receives any such interest during his incumbency. (c) A member of Congress or other public officer, who, having such interest prior to the approval of such law or resolution authored or recommended by him, continues for thirty days after such approval to retain such interest.
Family relation: includes the spouse or relatives by consanguinity or affinity in the third civil degree. Close personal relation: includes close personal friendship, social and fraternal connections, and professional employment all giving rise to intimacy which assures free access to such public officer. (b) Knowingly inducing or causing any public official to commit any of the offenses defined in Sec. 3. Section 5. Prohibition on certain relatives. – The spouse or any relative, by consanguinity or affinity, within the third civil degree, of the President, Vice-President, President of the Senate, or Speaker of the House of Representatives is prohibited from intervening directly or indirectly, in any business, transaction, contract or application with the Government. Exceptions: (1) Any person who, prior to the assumption of office of those officials to whom he is related, has been already dealing with the Government along the same line of
Section 14. Exception. Unsolicited gifts or presents of small or insignificant value offered or given as a mere ordinary token of gratitude or friendship according to local customs or usage, shall be excepted from the provisions of this Act.
RA 7080: ANTI-PLUNDER ACT Section 1. Definition of Terms (a) Public Officer - any person holding any public office in the Government of the
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Republic of the Philippines by virtue of an appointment, election or contract. (b) Government - includes the National Government, and any of its subdivisions, agencies or instrumentalities, including GOCCs and their subsidiaries. (c) Person - includes any natural or juridical person, unless the context indicates otherwise. (d) Ill-gotten wealth - any asset, property, business enterprise or material possession of any person within the purview of Section 2 (Plunder), acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes: (1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned; (3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or governmentowned or -controlled corporations and their subsidiaries; (4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including promise of future employment in any business enterprise or undertaking; (5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to
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benefit particular persons or special interests; or (6) By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines. Section 2. Definition of the Crime of Plunder A crime committed by any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires illgotten wealth through a combination or series of overt or criminal acts as described in Section 1(d) hereof, in the aggregate amount or total value of at least P75,000,000. Penalty - Life imprisonment with perpetual absolute disqualification from holding any public office. Any person who participated with said public officer in the commission of plunder shall likewise be punished. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances shall be considered by the court. Section 4. Rule of Evidence For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.
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Combination - refers to at least 2 acts falling under different categories of enumeration in Sec. 1 (d) i.e. raids on the public treasury under subpar. 1 and fraudulent conveyance of assets belonging to the National Government under subpar. 3. [Estrada v. Sandiganbayan (2001)]
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or entertainments in honor of the official or employee or his immediate relatives.
RA 6713 (CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND EMPLOYEES) Section 7. Prohibited Acts and Transactions. - In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful: (a) Financial and material interest. - Public officials and employees shall not, directly or indirectly, have any financial or material interest in any transaction requiring the approval of their office. (b) Outside employment and other activities related thereto. - Public officials and employees during their incumbency shall not: (a) Own, control, manage or accept employment as officer, employee, consultant, counsel, broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office unless expressly allowed by law; (b) Engage in the private practice of their profession unless authorized by the Constitution or law, provided, that such practice will not conflict or tend to conflict with their official functions; or (c) Recommend any person to any position in a private enterprise which has a regular or pending official transaction with their office.
Series - refers to at least 2 or more overt or criminal acts falling under the same category of enumeration in Sec. 1 (d) i.e. misappropriation, malversation and raids on the public treasury under subparagraph 1. [Estrada v. Sandiganbayan (2001)] Pattern - consists of at least a combination or series of overt or criminal acts enumerated in subsections (1) to (6) of Section 1(d). It is a general plan of action or method which the principal accused and the public officer and others conniving with him follow to achieve the unlawful scheme or conspiracy to achieve a common goal. [Estrada v. Sandiganbayan (2001)] Plunder is a crime malum in se, and the element of mens rea must be proven in a prosecution for plunder. [Estrada v. Sandiganbayan (2001)]
PD 46 It is punishable for any public official or employee, whether of the national or local governments, to receive, directly or indirectly, and for private persons to give, or offer to give, any gift, present or other valuable thing on any occasion, including Christmas, when such gift, present or other valuable thing is given by reason of his official position, regardless of whether or not the same is for past favor or favors or the giver hopes or expects to receive a favor or better treatment in the future from the public official or employee concerned in the discharge of his official functions. Included within the prohibition is the throwing of parties
These prohibitions shall continue to apply for a period of one (1) year after resignation, retirement, or separation from public office, except in the case of subparagraph (b) (2) above, but the professional concerned cannot practice 234
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his profession in connection with any matter before the office he used to be with, in which case the one-year prohibition shall likewise apply. (a) Disclosure and/or misuse of confidential information. - Public officials and employees shall not use or divulge, confidential or classified information officially known to them by reason of their office and not made available to the public, either: a. To further their private interests, or give undue advantage to anyone; or b. To prejudice the public interest. (b) Solicitation or acceptance of gifts. - Public officials and employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value from any person in the course of their official duties or in connection with any operation being regulated by, or any transaction which may be affected by the functions of their office.
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The Ombudsman shall prescribe such regulations as may be necessary to carry out the purpose of this subsection, including pertinent reporting and disclosure requirements. Nothing in this Act shall be construed to restrict or prohibit any educational, scientific or cultural exchange programs subject to national security requirements.
CHAPTER III: FRAUDS AND ILLEGAL EXACTIONS AND TRANSACTIONS ARTICLE 213 - FRAUD AGAINST THE PUBLIC TREASURY AND SIMILAR OFFENSES Modes: A. Entering into an agreement with any interested party or speculator or making use of any other scheme, to defraud the government, in dealing with any person with regard to furnishing supplies, the making of contracts, or the adjustment or settlement of accounts relating to public property or funds; B. Demanding, directly or indirectly, the payment of sums different from or larger than those authorized by law, in collection of taxes, licenses, fees, and other imposts; C. Failing voluntarily to issue a receipt, as provided by law, for any sum of money collected by him officially, in the collection of taxes, licenses, fees and other imposts; D. Collecting or receiving, directly or indirectly, by way of payment or otherwise, things or objects of a nature different from that provided by law, in the collection of taxes, licenses, fees and other imposts.
As to gifts or grants from foreign governments, the Congress consents to: (a) The acceptance and retention by a public official or employee of a gift of nominal value tendered and received as a souvenir or mark of courtesy; (b) The acceptance by a public official or employee of a gift in the nature of a scholarship or fellowship grant or medical treatment; or (c) The acceptance by a public official or employee of travel grants or expenses for travel taking place entirely outside the Philippine (such as allowances, transportation, food, and lodging) of more than nominal value if such acceptance is appropriate or consistent with the interests of the Philippines, and permitted by the head of office, branch or agency to which he belongs. 235
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Elements of Fraud against Public Treasury (par.1): (a) Offender is a public officer (b) He should have taken advantage of his public office, that is, he intervened in the transaction in his official capacity (c) He entered into an agreement with any interested party or speculator or made use of any other scheme with regard to: (a) Furnishing supplies (b) The making of contracts (c) The adjustment or settlement of accounts relating to public property or funds (d) Accused had intent to defraud the Government.
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taxes, license fees, import duties and other dues payable to the government. Mere demand of a larger or different amount is sufficient to consummate the crime. The essence is the improper collection (damage to government is not required). The act of receiving payment due the government without issuing a receipt will give rise to illegal exaction even though a provisional receipt has been issued. What the law requires is a receipt in the form prescribed by law, which means official receipt. If sums are received without demanding the same, a felony under this article is not committed. However, if the sum is given as a sort of gift or gratification, the crime is indirect bribery.
Consummated by merely entering into agreement with any interested party or speculator or by merely making use of other scheme to defraud the government.
When there is deceit in demanding a greater fee than those prescribed by law, the crime committed is estafa and not illegal exaction.
It is not necessary that the Government is actually defrauded by the reason of the transaction
Illegal exaction may be complexed with malversation if illegal exaction was committed as a necessary means to commit malversation.
Elements of Illegal Exactions (par.2.): (a) That the offender is a public officer entrusted with the collection of taxes, licenses, fees and other imposts; (b) He is guilty of the following acts or omissions: (1) Demanding directly or indirectly, the payment of sums different from or larger than those authorized by law; (2) Failing voluntarily to issue a receipt as provided by law, for any sum of money collected by him officially; or (3) Collecting or receiving, directly or indirectly, by way of payment or otherwise, things or object of a nature different from that provided by law
Officers and employees of the BIR or Customs are not covered by the article. The NIRC or the Revised Administrative Code is the applicable law.
ARTICLE 214 - OTHER FRAUDS Elements: (a) Offender is a public officer; (b) He takes advantage of his official position; (c) He commits any of the frauds or deceits enumerated in Article 315 to 318 (estafa, other forms of swindling, swindling a minor, other deceits).
This can only be committed principally by a public officer whose official duty is to collect 236
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Additional penalty of temporary special disqualification in its maximum period to perpetual special disqualification, apart from the penalties imposed in Arts 315-318.
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distribution or adjudication of which they had acted; 3. Guardians and executors with respect to the property belonging to their wards or the estate.
ART. 215: PROHIBITED TRANSACTIONS Fraud is not necessary. Intervention must be by virtue of the public office held.
Elements: (a) Offender is an appointive public officer; (b) He becomes interested, directly or indirectly, in any transaction of exchange or speculation; (c) The transaction takes place within the territory subject to his jurisdiction; (d) He becomes interested in the transaction during his incumbency.
The basis here is the possibility that fraud may be committed or that the officer may place his own interest above that of the government or party he represents.
CHAPTER IV: MALVERSATION OF PUBLIC FUNDS OR PROPERTY
Examples of transactions of exchange or speculation are: buying and selling stocks, commodities, land etc wherein one hopes to take advantage of an expected rise or fall in price.
ARTICLE 217 - MALVERSATION OF PUBLIC FUNDS OR PROPERTY PRESUMPTION OF MALVERSATION Modes: (a) Appropriating public funds or property; (b) Taking or misappropriating the same; (c) Consenting, or through abandonment or negligence, permitting any other person to take such public funds or property; and (d) Being otherwise guilty of the misappropriation or malversation of such funds or property.
Purchasing of stocks or shares in a company is simple investment and not a violation of the article. However, regularly buying securities for resale is speculation. The offender may also be held liable under RA 3019 Sec 3(i).
ARTICLE 216 - POSSESSION OF PROHIBITED INTEREST BY A PUBLIC OFFICER
Elements common to all modes: 1. Offender is a public officer; 2. He had the custody or control of funds or property by reason of the duties of his office; 3. Those funds or property were public funds or property for which he was accountable; 4. He appropriated, took, misappropriated or consented or, through abandonment or negligence, permitted another person to take them.
Persons liable: 1. Public officer who, directly or indirectly, became interested in any contract or business in which it was his official duty to intervene; 2. Experts, arbitrators, and private accountants who, in like manner, took part in any contract or transaction connected with the estate or property in the appraisal,
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Malversation is also called embezzlement.
Returning the malversed funds is not exempting, it is only mitigating.
Appropriation - Every attempt to dispose of public funds or property without a right to do so.
A person whose negligence made possible the commission of malversation by another can be held liable as a principal by indispensable cooperation.
The public officer must have official custody or the duty to collect or receive funds due the government, or the obligation to account for them, because this provision presupposes abuse of office.
Demand as well as damage to the government are not necessary elements. Demand merely raises a prima facie presumption that missing funds have been put to personal use. Damage to the government is immaterial because the penalty is based on the amount involved.
The nature of the duties of the public officer, not the name of the office, is controlling. Thus, a clerk who receives money or property belonging to the government, in the course of his employment, for which he is bound to account, may be liable under Article 217.
An accountable public officer may be convicted of malversation even in the absence of direct evidence of personal misappropriation, where he has not been able to explain satisfactorily the absence of the public funds involved [Estepa v. Sandiganbayan}
If the public officer is not accountable for the funds or property but someone else is, the crime committed is theft or qualified theft if there is an abuse of confidence. It is not necessary that the offender profited for as long as the accountable officer was remiss in his duty of safekeeping public funds or property. He is liable for malversation if such funds were lost or otherwise misappropriated by another. Negligence - the omission of reasonable care and caution which an ordinary prudent person would have used in the same situation. The measure of negligence is the standard of care commensurate with the occasion. It can be committed either with malice or through negligence or imprudence. This is one crime in the Revised Penal Code where the penalty is the same whether committed with dolo or through culpa.
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A private person may also commit malversation under the following situations: (i) Conspiracy with a public officer in committing malversation; (ii) When he has become an accomplice or accessory to a public officer who commits malversation; (iii) When the private person is made the custodian in whatever capacity of public funds or property, whether belonging to national or local government, and he misappropriates the same (Article 222); (iv) When he is constituted as the depositary or administrator of funds or property seized or attached by public authority even though said funds or property belong to a private individual (Article 222). Technical malversation (Article 220) is not included in the crime of malversation.
The funds or property must be received in an official capacity. Otherwise, the crime committed is estafa.
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Presumption of misappropriation When a demand is made upon an accountable officer and he cannot produce the fund or property involved, there is a prima facie presumption that he had converted the same to his own use. There must be indubitable proof that thing unaccounted for exists.
g or through abandonment or negligence, permitting any other person to take the public funds/property
, converting, or denying having received money, goods or other personal property
No element of damage.
There is damage.
Demand not necessary.
There is a need for prior demand. A routine government audit was conducted in Wa-Acon’s office and it was discovered that the sacks of rice entrusted to him for safekeeping were missing.
Audit should be made to determine if there was shortage. Audit must be complete and trustworthy. If there is doubt, presumption does not arise. The accused incurred shortage (P1.74) mainly because the auditor disallowed certain cash advances the accused granted to employees. But on the same date that the audit was made, the partly reimbursed the amount and paid it in full three days later.
Art 217 no longer requires proof by the State that the accused actually appropriated, took, or misappropriated public funds or property; instead, a presumption, though disputable and rebuttable, was installed upon demand by any duly authorized officer, the failure of a public officer to have duly forthcoming any public funds or property which said officer is accountable for should be prima facie evidence that he had put such missing funds or properties to personal use. [People v. Wa-Acon (2006)]
The Supreme Court considered the circumstances as negative of criminal intent. The cash advances were made in good faith and out of good will to co-employees which was a practice tolerated in the office. There was no negligence, malice, nor intent to defraud. [Quizo v. Sandiganbayan] Malversation (Art. 217)
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ARTICLE 218 FAILURE OF ACCOUNTABLE OFFICER TO RENDER ACCOUNTS
Estafa with Abuse of Confidence (Art. 315)
Elements: (a) Offender is public officer, whether in the service or separated therefrom by resignation or any other cause; (b) He is an accountable officer for public funds or property; (c) He is required by law or regulation to render account to the Commission on Audit, or to a provincial auditor; (d) He fails to do so for a period of two months after such accounts should be rendered/
Funds or property usually Funds/property public are always private Offender is usually a public Offender is a officer who is accountable for private individual the public funds/property or even a public officer who is not accountable for public funds/property Crime is committed by Crime is appropriating, taking, or committed by misappropriating/consentin misappropriating
Demand for accounting is not necessary. It is also not essential that there be 239
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misappropriation because if present, the crime would be malversation.
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Illegal use of public funds or property is also known as technical malversation. The term technical malversation is used because in this crime, the fund or property involved is already appropriated or earmarked for a certain public purpose. Despite the public purpose, the act is punished because it remains a violation of the appropriations law.
ARTICLE 219 - FAILURE OF A RESPONSIBLE PUBLIC OFFICER TO RENDER ACCOUNTS BEFORE LEAVING THE COUNTRY Elements: (a) Offender is a public officer; (b) He is an accountable officer for public funds or property; (c) He unlawfully leaves or attempts to leave the Philippine Islands without securing a certificate from the Commission on Audit showing that his accounts have been finally settled.
Regardless of damage or embarrassment to the public service.
The act of leaving the country must be unauthorized or not permitted by law. The purpose of the law is to discourage responsible or accountable officers from leaving without first liquidating their accountability. It is not necessary that they really misappropriated public funds.
Malversation (Art. 217)
Technical malversation (Art. 220)
The offender misappropriates public funds or property for his own personal use, or allows any other person to take such funds or property for the latter’s own personal use.
The public officer applies the public funds or property under his administration to another public use different from that for which the public fund was appropriated by law or ordinance.
ARTICLE 221 - FAILURE TO MAKE DELIVERY OF PUBLIC FUNDS OR PROPERTY
ARTICLE 220 - ILLEGAL USE OF PUBLIC FUNDS OR PROPERTY
Modes 1. Failing to make payment by a public officer who is under obligation to make such payment from government funds in his possession; 2. Refusing to make delivery by a public officer who has been ordered by competent authority to deliver any property in his custody or under his administration.
Elements: 1. Offender is a public officer; 2. There are public funds or property under his administration; 3. Such fund or property were appropriated by law or ordinance; 4. He applies such public fund or property to any public use other than for which it was appropriated for.
Elements: (a) Public officer has government funds in his possession; (b) He is under obligation to either: (a) make payment from such funds; 240
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(b) to deliver any property in his custody or under his administration (c) He maliciously fails to make the payment or refuses to make delivery.
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Classes of prisoners involved (a) Those who have been sentenced by final judgment to any penalty; (b) Detention prisoners who are temporarily held in legal custody, arrested for and charged with violation of some law or municipal ordinance.
ARTICLE 222 - OFFICERS INCLUDED IN THE PRECEDING PROVISIONS
Leniency, laxity, and release of a detention prisoner who could not be delivered to judicial authorities within the time fixed by law is not infidelity in the custody of a prisoner.
(1) Private individual who, in any capacity, have charge of any national, provincial or municipal funds, revenue, or property (2) Administrator or depositary of funds or property that has been attached, seized or deposited by public authority, even if owned by a private individual.
But there is real actual evasion of service of a sentence when the custodian permits the prisoner to obtain a relaxation in his imprisonment and to escape the punishment of being deprived of his liberty, thus making the penalty ineffectual, although the convict may not have fled. This includes allowing prisoners to sleep and eat in the officer’s house or utilizes the prisoner’s services for domestic chores.
Sheriffs and receivers fall under the term “administrator.” A judicial administrator in charge of settling the estate of the deceased is not covered by the article. Conversion of effects in his trust makes him liable for estafa. Private property is included, provided it is (1) attached, (2) seized or (3) deposited by public authority.
ARTICLE 224 - EVASION THROUGH NEGLIGENCE Elements: (1) Offender is a public officer; (2) He is charged with the conveyance or custody of a detention prisoner or prisoner by final judgment; (3) Such prisoner escapes through negligence
CHAPTER V: INFIDELITY OF PUBLIC OFFICERS SECTION ONE - INFIDELITY IN THE CUSTODY OF PRISONERS ARTICLE 223 - CONNIVING WITH OR CONSENTING TO EVASION
This covers only positive carelessness and definite laxity which amounts to deliberate nonperformance of duties.
Elements: (1) Offender is a public officer; (2) He had in his custody or charge a prisoner, either detention prisoner or prisoner by final judgment; (3) Such prisoner escaped from his custody; (4) He was in connivance with the prisoner in the latter’s escape. (“shall consent to the escape”)
The fact that the public officer recaptured the prisoner who had escaped from his custody does not afford complete exculpation. The liability of an escaping prisoner: (a) If he is a prisoner by final judgment, he is liable for evasion of service (Art. 157)
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SECTION TWO - INFIDELITY IN THE CUSTODY OF DOCUMENTS
(b) If he is a detention prisoner, he does not incur criminal liability (unless cooperating with the offender).
ARTICLE 226 REMOVAL, CONCEALMENT, OR DESTRUCTION OF DOCUMENTS
Policeman Rodillas escorted detained prisoner Sacris to the court. After the court adjourned he let her eat lunch with her family, permitted her to go to the ladies washroom unescorted and after her escape, did not report it immediately to his superiors, instead he went around looking for her.
Elements: (a) Offender is a public officer; (b) He abstracts, destroys or conceals a document or papers; (c) Said document or papers should have been entrusted to such public officer by reason of his office; (d) Damage, whether serious or not, to a third party or to the public interest has been caused.
SC held that he is guilty of the crime in Art 224 for being negligent in the performance of his duties which made the escape of Sacris possible. [Rodillas v. Sandiganbayan (1988)]
ARTICLE 225 - ESCAPE OF PRISONER UNDER THE CUSTODY OF A PERSON NOT A PUBLIC OFFICER
Can only be committed by the public officer who is made the custodian of the document in his official capacity. If the offender is a private individual, estafa is committed; if there is no damage, malicious mischief.
Elements: (a) Offender is a private person; (b) The conveyance or custody of a prisoner or person under arrest is confided to him; (c) The prisoner or person under arrest escapes; (d) Offender consents to the escape, or that the escape takes place through his negligence.
If the officer was placed in possession of the document but it is not his duty to be the custodian thereof, this crime is not committed. The document must be complete and one by which a right could be established or an obligation could be extinguished.
If the offender who aided or consented to the prisoner’s escaping from confinement, whether the prisoner is a convict or a detention prisoner, is not the custodian, the crime is delivering prisoners from jail under Article 156.
If the writings are mere forms, there is no crime. Damage to public interest is necessary. However, material damage is not necessary.
The party who is not the custodian but who conspired with the custodian in allowing the prisoner to escape does not commit infidelity in the custody of the prisoner.
Removal is consummated upon taking or secreting away of the document from its usual place. It is immaterial whether or not the illicit purpose of the offender has been accomplished.
Art. 225 is not applicable if a private person was the one who made the arrest and he consented to the escape of the person he arrested.
This could cover failure on the part of the post office to forward the letters to their destination.
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ARTICLE 228 - OPENING OF CLOSED DOCUMENTS
Damage in this article may consist in mere alarm to the public or in the alienation of its confidence in any branch of the government service.
Elements: (a) Offender is a public officer; (b) Any closed papers, documents, or objects are entrusted to his custody; (c) He opens or permits to be opened said closed papers, documents or objects; (d) He does not have proper authority.
ARTICLE 227 - OFFICER BREAKING SEAL Elements: (1) Offender is a public officer; (2) He is charged with the custody of papers or property; (3) These papers or property are sealed by proper authority; (4) He breaks the seal or permits them to be broken.
The act should not fall under Art 227. Damage is also not necessary.
ARTICLE 229 - REVELATION OF SECRETS BY AN OFFICER
In "breaking of seal", the word "breaking" should not be given a literal meaning. The custodian is liable even if the seal was not actually broken because the custodian managed to open the parcel without breaking the seal.
Mode 1. Revealing any secrets known to the offending public officer by reason of his official capacity; Elements: 1. Offender is a public officer; 2. He knows of a secret by reason of his official capacity; 3. He reveals such secret without authority or justifiable reasons; 4. Damage, great or small, is caused to the public interest.
The element of damage is not required. Revelation Of Secrets By An Officer (Art. 229)
Removal, Concealment or Destruction of Documents (Art. 226)
The papers contain secrets and therefore should not be published, and the public officer having charge thereof removes and delivers them wrongfully to a third person.
The papers do not contain secrets but their removal is for an illicit purpose.
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Mode 2. Wrongfully delivering papers or copies of papers of which he may have charge and which should not be published. Elements: (1) Offender is a public officer; (2) He has charge of papers; (3) Those papers should not be published; (4) He delivers those papers or copies thereof to a third person; (5) The delivery is wrongful; (6) Damage is caused to public interest.
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Espionage is not contemplated in this article since revelation of secrets of the State to a belligerent nation is already defined in Art 117 and CA 616.
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The reason for this provision is to uphold faith and trust in public service.
CHAPTER VI: OTHER OFFENSES OR IRREGULARITIES BY PUBLIC OFFICERS
Secrets must affect public interest. Secrets of private persons are not included.
SECTION ONE - DISOBEDIENCE, REFUSAL OF ASSISTANCE, MALTREATMENT OF PRISONERS
“Charge” - means custody or control. If he is merely entrusted with the papers and not with the custody thereof, he is not liable under this article.
AND
ARTICLE 231 - OPEN DISOBEDIENCE Elements: (1) Officer is a judicial or executive officer; (2) There is a judgment, decision or order of a superior authority; (3) Such judgment, decision or order was made within the scope of the jurisdiction of the superior authority and issued with all the legal formalities; (4) He, without any legal justification, openly refuses to execute the said judgment, decision or order, which he is duty bound to obey.
If the papers contain secrets which should not be published, and the public officer having charge thereof removes and delivers them wrongfully to a third person, the crime is revelation of secrets. On the other hand, if the papers do not contain secrets, their removal for an illicit purpose is infidelity in the custody of documents. Damage is essential to the act committed.
ARTICLE 230 - PUBLIC OFFICERS REVEALING SECRETS OF PRIVATE INDIVIDUALS
ARTICLE 232 - DISOBEDIENCE TO THE ORDER OF SUPERIOR OFFICER WHEN SAID ORDER WAS SUSPENDED BY INFERIOR OFFICER
Elements: (a) Offender is a public officer; (b) He knows of the secrets of a private individual by reason of his office; (c) He reveals such secrets without authority or justifiable reason.
Elements: (a) Offender is a public officer; (b) An order is issued by his superior for execution; (c) He has for any reason suspended the execution of such order; (d) His superior disapproves the suspension of the execution of the order; (e) Offender disobeys his superior despite the disapproval of the suspension.
Revelation to one person is sufficient. When the offender is a public attorney or a solicitor, the act of revealing the secret should not be covered by Art 209 (Betrayal of Trust). Damage to private individual is not necessary.
This does not apply if the order of the superior is illegal.
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ARTICLE 233 - REFUSAL OF ASSISTANCE
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ARTICLE 235 - MALTREATMENT OF PRISONERS
Elements: (1) Offender is a public officer; (2) A competent authority demands from the offender that he lend his cooperation towards the administration of justice or other public service; (3) Offender maliciously fails to do so.
Applies whether or not serious damage to the public interest was committed.
Elements: (a) Offender is a public officer or employee; (b) He has under his charge a prisoner or detention prisoner; (c) He maltreats such prisoner in either of the following manners: (a) By overdoing himself in the correction or handling of a prisoner or detention prisoner under his charge either (a) By the imposition of punishment not authorized by the regulations; (b) By inflicting such punishments (those authorized) in a cruel and humiliating manner; (b) By maltreating such prisoners to extort a confession or to obtain some information from the prisoner.
If the offender is a private individual, he may be held liable for contempt.
This is committed only by such public officer charged with direct custody of the prisoner.
ARTICLE 234 - REFUSAL TO DISCHARGE ELECTIVE OFFICE
Offender may also be held liable for physical injuries or damage caused.
Elements: (a) Offender is elected by popular election to a public office; (b) He refuses to be sworn in or to discharge the duties of said office; (c) There is no legal motive for such refusal to be sworn in or to discharge the duties of said office.
If the public officer is not the custodian of the prisoner, and he manhandles the latter, the crime is physical injuries.
The request must come from one public officer to another. If he receives consideration therefore, bribery is committed. But mere demand will fall under the prohibition under the provision of Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act).
The offended party can either be a convict by final judgment or a detention prisoner. To be considered a detention prisoner, the person arrested must be placed in jail even for just a short while.
Once an individual is elected to an office by the will of the people, discharge of duties becomes a matter of duty, not only a right. This only applies for elective, not appointive officers.
The maltreatment does not really require physical injuries. Any kind of punishment not authorized or although authorized if executed in excess of the prescribed degree is covered. If the maltreatment was done in order to extort confession, the penalty is qualified to the next higher degree. 245
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If the acts of maltreatment constitute torture, there is a separate criminal liability from the crime under the RPC. Torturous acts are not absorbed in, nor do they absorb other crimes. (Section 15, RA 9745)
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Infidelity in the Custody of Detained Persons (Section 44): (a) The offender is any public officer who has direct custody of a detained person liable under the provisions of this Act; (b) The offender causes or allows the escape of such detained person by his deliberate act, misconduct, or inexcusable negligence;
RA 9372: HUMAN SECURITY ACT Failure to Deliver Suspect to the Proper Judicial Authority within Three Days (Section 20): (1) The offender is a police or law enforcement personnel who has apprehended or arrested, detained and taken custody of a person; (2) The person detained is charged with or suspected of the crime of terrorism or conspiracy to commit terrorism; (3) The offender fails to deliver such charged or suspected person to the proper judicial authority within the period of 3 days.
The offender shall suffer the penalty of: (a) 12 years and 1 day to 20 years of imprisonment, if the detained person has already been convicted and sentenced in a final judgment of a competent court; (b) 6 years and 1 day to 12 years of imprisonment, if the detained person has not been convicted and sentenced in a final judgment of a competent court.
Exception (Section 19): In the event of an actual or imminent terrorist attack, suspects may be detained for more than 3 days upon the written approval of: (a) Municipal, city, provincial or regional official of the Human Rights Commission; (b) Judge of the MTC, RTC, or Sandiganbayan; or (c) Justice of the CA nearest the place of arrest. The written approval must be procured within 5 days after the date of detention.
The public officer is punished under the Human Security Act and not under infidelity in the custody of prisoners in the RPC (Articles 223224), if the detained person is charged with or suspected of the crime of terrorism or conspiracy to commit terrorism. False Prosecution (Section 50): Upon acquittal, any person who is accused of terrorism shall be entitled to the payment of damages in the amount of P500,000 for every day that he/she has been detained or deprived of liberty or arrested without a warrant as a result of such an accusation.
Provided that within 3 days after detention, suspects whose connection with the terror attack or threat is not established, shall be released immediately.
The amount of damages shall be automatically charged against the appropriations of the police agency or the Anti-Terrorism Council that brought or sanctioned the filing of the charges against the accused. It shall also be released within 15 days from the date of the acquittal of the accused.
If the arrest is made during Saturdays, Sundays, holidays or after office hours, the arresting police or law enforcement personnel shall bring the person thus arrested to the residence of any of the officials mentioned above that is nearest the place where the accused was arrested
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The award of damages mentioned above shall be without prejudice to the right of the acquitted accused to file criminal or administrative charges against those responsible for charging him with the case of terrorism.
The offenders here can be those suspended, separated, declared over-aged, or dismissed.
ARTICLE 238 - ABANDONMENT OFFICE OR POSITION
SECTION TWO ANTICIPATION, PROLONGATION, AND ABANDONMENT OF THE DUTIES AND POWERS OF PUBLIC OFFICE
For the resignation to be formal, it has to be in written form. The offense is qualified when the purpose of the abandonment is to evade the discharge of duties of preventing, prosecuting, or punishing any of the crimes falling within Title One and Chapter One of Title Three of book two of the RPC.
ARTICLE 236 - ANTICIPATION OF DUTIES OF A PUBLIC OFFICER Elements: (a) Offender is entitled to hold a public office or employment, either by election or appointment; (b) The law requires that he should first be sworn in and/or should first give a bond; (c) He assumes the performance of the duties and powers of such office; (d) He has not taken his oath of office and/or given the bond required by law.
OF
OF
Elements: (a) Offender is a public officer; (b) He formally resigns from his position; (c) His resignation has not yet been accepted; (d) He abandons his office to the detriment of the public service.
Any officer, employee, personnel, or person who delays the release or refuses to release the amounts awarded to the individual acquitted of the crime of terrorism as directed in the paragraph immediately preceding shall suffer the penalty of 6 months of imprisonment.
ARTICLE 237 PERFORMANCE POWERS
CRIMINAL LAW
Abandonment of Office or Position (Art. 238) Committed by public officer
PROLONGING DUTIES AND
any Committed only by public officers who have the duty to institute prosecution for the punishment of violations of the law
There is actual abandonment through resignation to evade the discharge of duties
Elements: (a) Offender is holding a public office; (b) The period provided by law, regulations or special provision for holding such office, has already expired; (c) He continues to exercise the duties and powers of such office.
Dereliction of Duty (Art. 208)
Public officer does not abandon his office but merely fails to prosecute a violation of the law.
SECTION THREE - USURPATION OF POWERS AND UNLAWFUL APPOINTMENTS
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ARTICLE 239 - USURPATION LEGISLATIVE POWERS
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OF
(2) obstructs the execution of any order or decision rendered by any judge within his jurisdiction.
Elements: (a) Offender is an executive or judicial officer; (b) He: (a) makes general rules or regulations beyond the scope of his authority; or (b) attempts to repeal a law; or (c) suspends the execution thereof.
ARTICLE 242 - DISOBEYING REQUEST FOR DISQUALIFICATION Elements: (1) Offender is a public officer; (2) A proceeding is pending before such public officer; (3) There is a question brought before the proper authority regarding his jurisdiction, which is not yet decided; (4) He has been lawfully required to refrain from continuing the proceeding; (5) He continues the proceeding.
Arts 239-241 punish interference by public officers of the executive or judiciary with the functions of another department of government to keep them within legitimate confines of their respective jurisdictions. Legislative officers are not liable for usurpation of powers. The remedy is to file a petition for prohibition or injunction.
ARTICLE 240 - USURPATION EXECUTIVE FUNCTIONS
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The disobedient officer is liable even if the jurisdictional question is resolved in his favor.
OF
ARTICLE 243 - ORDERS OR REQUEST BY EXECUTIVE OFFICER TO ANY JUDICIAL AUTHORITY
1. Offender is a judge; 2. That he: i. assumes a power pertaining to the executive authorities, or ii. obstructs the executive authorities in the lawful exercise of their powers.
Elements: (k) Offender is an executive officer; (l) He addresses any order or suggestion to any judicial authority; (m) The order or suggestion relates to any case or business coming within the exclusive jurisdiction of the courts of justice.
Elements:
Legislative officers are not liable for usurpation of powers
The purpose is to maintain the independence of the judiciary from executive dictations.
ARTICLE 241 - USURPATION OF JUDICIAL FUNCTIONS
ARTICLE 244 APPOINTMENTS
Elements: (1) Offender is an officer of the executive branch of the government; (2) That he: (1) assumes judicial powers, or
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UNLAWFUL
Elements: (a) Offender is a public officer; (b) He nominates or appoints a person to a public office;
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(c) Such person lacks the legal qualifications therefore; (d) Offender knows that his nominee or appointee lacks the qualification at the time he made the nomination or appointment.
2. under the custody of the offender who is a warden or other public officer directly charged with the care and custody of prisoners or persons under arrest; or 3. the wife, daughter, sister or relative within the same degree by affinity of the person in the custody of the offender.
This can also be covered by RA 3019. Recommending, knowing that the person recommended is not qualified is not a crime.
The crime is consummated by mere proposal.
There must be a law providing for the qualifications of a person to be nominated or appointed to a public office.
ARTICLE 245 CHASTITY
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ABUSES
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The mother of the person in the custody of the public officer is not included. If the offender were not the custodian, then crime would fall under Republic Act No. 3019.
AGAINST
Solicit: means to propose earnestly and persistently something unchaste and immoral to a woman. The advances must be immoral or indecent.
Modes: (a) Soliciting or making immoral or indecent advances to a woman interested in matters pending before the offending officer for decision, or with respect to which he is required to submit a report to or consult with a superior officer; (b) Soliciting or making immoral or indecent advances to a woman under the offender’s custody; (c) Soliciting or making immoral or indecent advances to the wife, daughter, sister or relative within the same degree by affinity of any person in the custody of the offending warden or officer.
Proof of solicitation is not necessary when there is sexual intercourse. Abuse against chastity is not absorbed in rape because the basis of penalizing the acts is different from each other
Elements: (a) Offender is a public officer; (b) He solicits or makes immoral or indecent advances to a woman; (c) Such woman is – 1. interested in matters pending before the offender for decision, or with respect to which he is required to submit a report to or consult with a superior officer; or 249
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Title VIII. Crimes against Persons
CHAPTER I DESTRUCTION OF LIFE
CHAPTER I: DESTRUCTION OF LIFE
Elements: (a) Person is killed; (b) Deceased is killed by the accused; (c) Deceased is the accused's 1. legitimate/illegitimate father 2. legitimate/illegitimate mother 3. legitimate/illegitimate child (should not be less than 3 days old, otherwise crime is infanticide) 4. other legitimate ascendant 5. other legitimate descendant 6. legitimate spouse
ARTICLE 246 - PARRICIDE
(a) Article 246 – Parricide (b) Article 247 - Death or Physical Injuries Under Exceptional Circumstances (c) Article 248 – Murder (d) Article 249 – Homicide (e) Article 250 - Penalty for Frustrated Parricide, Murder or Homicide (f) Article 251 - Death Caused in Tumultuous Affray (g) Article 252 - Physical Injuries Caused in Tumultuous Affray (h) Article 253 - Giving Assistance to Suicide (i) Article 254 - Discharge of Firearms (j) Article 255 – Infanticide (k) Article 256 - Intentional Abortion (l) Article 257 - Unintentional Abortion (m) Article 258 - Abortion Practiced by the Woman Herself or by Parents (n) Article 259 - Abortion by a Physician or Midwife and Dispensing of Abortives (o) Article 260 Responsibility of Participants in a Duel (p) Article 261 - Challenging to a Duel
RELATIONSHIP (a) This is the essential element of this crime – relationship of offender with the victim; except for spouses, only relatives by blood and in direct line. Hence, adopted children are not included. [Reyes] (b) It must be alleged in the information. Wife of victim cannot be convicted of parricide if charged only with murder. However, relationship must be considered aggravating even if not alleged. [People v. Jumawan] (c) Spouse must be legitimate. Muslim husbands with several wives can be convicted of parricide only in case the first wife is killed. [People v. Subano] (d) A stranger who cooperates and takes part in the commission of the crime of parricide is not guilty of parricide but only homicide or murder, as the case may be. [People v. Patricio; People v. Echaluce] (e) The law does not require knowledge of relationship between offender and victim. [Reyes]
CHAPTER II: PHYSICAL INJURIES 1. Article 262 – Mutilation 2. Article 263 - Serious Physical Injuries 3. Article 264 - Administering Injurious Substances or Beverages 4. Article 265 - Less Serious Physical Injuries 5. Article 266 - Slight Physical Injuries and Maltreatment 6. Article 266-A - Rape (amended by RA 8353) About this Title: The essence of crimes involves the taking of human life, destruction of the fetus, or inflicting injuries.
Parricide when the penalty shall not be reclusion perpetua to death: 250
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(1) Reckless or simple imprudence [Art. 365] (2) Parricide by mistake [Art. 49] (3) Parricide under exceptional circumstances [Art. 247]
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(e) “Living with parent(s)” - understood to be in their own dwelling. If done in a motel, article does not apply. SURPRISE (f) means “to come upon suddenly and unexpectedly.” (g) If the accused did not surprise the supposed offenders in the very act of committing adultery but thereafter, he cannot invoke the privilege of Art. 247. [People v. Gonzales] Justice Laurel’s Dissent: Must the offended husband look on in the meantime and wait until the very physical act of coition take place? This interpretation is far from being rational and certainly does violence to the reason and purpose of the law.
ARTICLE 247 - DEATH OR PHYSICAL INJURIES UNDER EXCEPTIONAL CIRCUMSTANCES Elements: (a) A legally married person, or a parent, surprises his spouse or his daughter, the latter under 18 years of age and living with him in the act of sexual intercourse with another person; (b) He or she kills any or both of them, or inflicts upon any or both of them any serious physical injury in the act or immediately thereafter; (c) He has not promoted or facilitated the prostitution of his wife or daughter, or that he or she has not consented to the infidelity of the other spouse.
IMMEDIATELY THEREAFTER (h) There is no set time as jurisprudence has held 1 hour or even 4 hours as “immediately thereafter”. However, the act done must be a direct result of the outrage of the cuckolded spouse, and a continuous act from the moment of the surprising.
NOT A FELONY (a) This article does not define a felony, rather it serves as a defense for a person charged with parricide, homicide or serious physical injuries. If all the requisites have been met, the defendant will be sentenced to destierro instead of the severe penalty for the aforementioned crimes. If less serious or slight physical injuries are inflicted, there is no criminal liability. [Reyes]
ARTICLE DOES NOT APPLY: (1) If the surprising took place before any actual sexual intercourse could be done. (2) If the daughter is married. Although the article does not use the word “unmarried,” this article applies only when the daughter is single because while under 18 and single, she is still under parental authority. If she is married, her husband alone can claim the benefits of this article.
SPOUSE (b) The wife is also entitled to the benefits of this article. The phrase “any legally married person” and the word “spouse” include the wife. (c) Does not apply if the accused is a commonlaw spouse.
Evidence of the victim’s promiscuity is inconsequential to the killing. The offender must prove that he actually surprised his wife and [her paramour] in flagrante delicto, and that he killed the man during or immediately thereafter. [People v. Puedan]
PARENTS (d) Parents need not be legitimate. 251
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LIABILITY FOR PHYSICAL INJURIES SUFFERED BY THIRD PERSONS (i) In one case, two other persons suffered physical injuries as they were caught in the crossfire when the accused shot the victim. A complex crime of double frustrated murder was not committed as the accused did not have the intent to kill the two victims. Here, the accused did not commit murder when he fired at the paramour of his wife. No aberratio ictus because he was acting lawfully. Inflicting death under exceptional circumstances is not murder. [People v. Abarca]
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of the victim, or outraging or scoffing at his person or corpse. 7. The killing is not parricide or infanticide. Murder – The unlawful killing of any person which is not parricide or infanticide with any of the circumstance mentioned in Art. 248. QUALIFYING CIRCUMSTANCES (j) One attendant qualifying circumstance is enough. If there are more than one alleged in the information for murder, only one will qualify the killing to murder and the other circumstances will be taken as generic aggravating circumstance. (k) Any of the qualifying circumstances enumerated in Art. 248 must be alleged in the information. When the other circumstances are absorbed or included in one qualifying circumstance, they cannot be considered as generic aggravating.
ARTICLE 248 - MURDER ELEMENTS: (a) Person was killed; (b) Accused killed him; (c) Killing attended by any of the following qualifying circumstances 1. with treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense, or of means or persons to insure or afford impunity; 2. in consideration of a price, reward or promise; 3. by means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin; 4. on occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic, or any other public calamity; 5. with evident premeditation; 6. with cruelty, by deliberately and inhumanly augmenting the suffering
TREACHERY (l) Treachery absorbs the aggravating circumstance of abuse of superior strength and aid of armed men. [People v. Sespeñe] (m) The essence of treachery is that the offended party was denied the chance to defend himself because of the means, methods, or forms of attack deliberately adopted by the offender were not merely incidental to the killing. (n) Killing of a person with treachery is murder even if there was no intent to kill. [People v. Cagoco (1933)] (o) Killing of a child of tender age is qualified by treachery. [People v. Valerio (1988)] INTENT TO KILL (p) When the victim is already dead, intent to kill becomes irrelevant. It is important only if the victim did not die to determine if the felony is physical injury or attempted or frustrated homicide. 252
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“Employing means or persons to insure or afford impunity” – means are employed by the accused to prevent his being recognized or to secure himself against detection and punishment
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(w) It is absorbed in price, reward or promise, if without the premeditation the inductor would not have induced the other to commit the act but not as regards the one induced. (x) The prosecution must prove (1) the time when the offender determined (conceived) to kill his victim; (2) an act of the offender manifestly indicating that he clung to his determination to kill his victim; and (3) a sufficient lapse of time between the determination and the execution of the killing.
PRICE, REWARD, OR PROMISE (q) The person who received the price or reward or who accepted a promise of price or rewards and would not have killed the victim were it not for that price, reward, or promise is a principal by direct participation. (r) The person who gave the price or reward or who made the promise is a principal by induction.
CRUELTY (y) Under Article 14, the generic aggravating circumstance of cruelty requires that the victim be alive, when the cruel wounds were inflicted and, therefore, there must be evidence to that effect. (z) Injuries or wounds, not necessary for the killing of the victim, must be inflicted deliberately by the offender. (aa)Yet, in murder, aside from cruelty, any act that would amount to scoffing or decrying the corpse of the victim will qualify the killing to murder.
FIRE (s) When a person is killed by fire, the primordial criminal intent of the offender is considered. If the primordial criminal intent of the offender is to kill and fire was only used as a means to do so, the crime is only murder. If the primordial criminal intent of the offender is to destroy property with the use of pyrotechnics and incidentally, somebody within the premises is killed, the crime is arson with homicide, a single indivisible crime penalized under Art. 326, which is death as a consequence of arson. (t) Intent to kill must be present for the use of fire to be appreciated as a qualifying circumstance. [People v. Pugay and Samson]
Outraging – to commit an extremely vicious or deeply insulting act Scoffing – to jeer; implies a showing of irreverence
ARTICLE 249 - HOMICIDE Elements: (1) Person was killed; (2) Offender killed him without any justifying circumstances; (3) Offender had the intention to kill, which is presumed; (4) Killing was not attended by any of the qualifying circumstances of murder, or by that of parricide or infanticide
POISON (u) Treachery and evident premeditation are inherent in murder by poison only if the offender has the intent to kill the victim by use of poison. EVIDENT PREMEDITATION (v) Act of the offender manifestly indicating that he clung to his determination to kill his victim. 253
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ARTICLE 250 PENALTY FOR FRUSTRATED PARRICIDE, MURDER OR HOMICIDE
Corpus delicti – means the actual commission of the crime charged (1) In all crimes against persons in which the death of the victim is an element of the offense, there must be satisfactory evidence of (1) the fact of death and (2) the identity of the victim
Courts may impose a penalty: (a) 2 degrees lower for frustrated parricide, murder, or homicide (b) 3 degrees lower for attempted parricide, murder, or homicide.
INTENT TO KILL (2) Intent to kill is conclusively presumed when death resulted. Evidence of intent to kill is important only in attempted or frustrated homicide. (3) In attempted or frustrated homicide, there is intent to kill. In physical injuries, there is none. However, if as a result of the physical injuries inflicted, the victim died, the crime will be homicide because the law presumes intent to kill and punishes the result, and not the intent of the act. The accused will, however, be entitled to the mitigating circumstance of lack of intent to commit so grave a wrong.
For frustrated parricide, homicide or murder, the courts, in view of the facts of the case, may impose a penalty lower by one degree than that imposed under Art. 50. Art. 50 provides that the penalty next lower in degree than that prescribed by law for the consummated felony shall be imposed upon a principal in a frustrated felony. Thus, under Art. 50, the court can impose a penalty of TWO DEGREES LOWER for frustrated parricide, murder, or homicide. For attempted parricide, homicide, or murder, the courts, in view of the facts of the case may impose a penalty by one degree than that imposed under Art. 51.
No offense of frustrated homicide through imprudence. (4) The element of intent to kill in frustrated homicide is incompatible with negligence or imprudence. [People v. Castillo (1999)]
Art. 51 provides that the penalty lower by two degrees than that prescribed by law for the consummated felony shall be imposed upon the principal in an attempted felony. Thus, under Art. 250, the court can impose a penalty of THREE DEGREES LOWER for attempted parricide, murder, or homicide.
OTHER NOTES: (5) Physical injuries sufficient to cause death are one of the essential elements of frustrated homicide. (6) In accidental homicide wherein death of a person is brought about by a lawful act performed with proper care and skill and without homicidal intent, there is no liability. (7) Use of unlicensed firearm is an aggravating circumstance in homicide.
NOTE: Any attempt on, or conspiracy against, the life of the Chief Executive of the Philippines or that of any member of his family, or against the life of any member of his cabinet or that of any member of the latter’s family, shall suffer the penalty of death.
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ARTICLE 251 - DEATH CAUSED IN TUMULTUOUS AFFRAY
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The crimes committed might be disturbance of public order, or if participants are armed, it could be tumultuous disturbance, or if property was destroyed, it could be malicious mischief.
Elements: (1) There are several persons; (2) They do not compose groups organized for the common purpose of assaulting and attacking each other reciprocally; (3) These several persons quarreled and assaulted one another in a confused and tumultuous manner; (4) Someone was killed in the course of the affray; (5) It cannot be ascertained who actually killed the deceased; (6) The person or persons who inflicted serious physical injuries or who used violence can be identified.
ARTICLE 252 - PHYSICAL INJURIES CAUSED IN TUMULTUOUS AFFRAY Elements: There is a tumultuous affray; A participant or some participants thereof suffered serious physical injuries or physical injuries of a less serious nature only; The person responsible thereof cannot be identified; All those who appear to have used violence upon the person of the offended party are known.
Tumultuous affray – is a commotion in a confused manner to an extent that it would not be possible to identify who the killer is if death results, or who inflicted the serious physical injury, but the person or persons who used violence are known. It exists when at least four persons took part [Reyes]. The groups must not be organized to mutually assault or fight each other, otherwise the hostilities would not be considered as a tumultuous affray. [People v. Abiog (1920)]
Unlike in Article 251, the injured party in this article must be one or some of the participants in the affray. All those who appear to have used violence shall suffer the penalty next lower in degree than that provided for the serious physical injuries inflicted. For less serious physical injuries, the penalty is arresto mayor from five to fifteen days. Physical injury should be serious or less serious.
Who are liable? (a) The person or persons who inflicted the serious physical injuries (b) If it is not known who inflicted the serious physical injuries on the deceased, all persons who used violence upon the person of the victim are liable.
No crime of physical injuries resulting from a tumultuous affray if the physical injury is only slight because slight physical injury is considered as inherent in a tumultuous affray.
ARTICLE 253 - GIVING ASSISTANCE TO SUICIDE
If there is conspiracy, this crime is not committed. The crime would be murder or homicide.
Modes: (1) Assisting another to commit suicide, whether the suicide is consummated or not; 255
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(2) Lending his assistance to another to commit suicide to the extent of doing the killing himself.
Giving assistance to suicide means giving means (arms, poison, etc.) or whatever manner of positive and direct cooperation (intellectual aid, suggestions regarding the mode of committing suicide, etc.).
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A doctor who resorts to euthanasia of his patient may be liable for murder. But if the patient himself asks to be killed by his doctor, this Article applies. [Reyes]
ARTICLE 254 - DISCHARGE OF FIREARMS Elements: (a) Offender discharges a firearm against or at another person. (b) Offender has no intention to kill that person.
If the person does the killing himself, the penalty is similar to that of homicide, which is reclusion temporal.
No crime if firearm is not discharged. It is essential for prosecution to prove that the discharge of firearm was directed precisely against the offended party.
The relation of the offender to the person committing suicide is not material. The law does not distinguish. Hence, penalty would be the same if the offender is the father, mother or child.
The crime is the discharge of firearm, even if the gun was not pointed at the offended party when it fired, as long as it was initially aimed by the accused at or against the offended party
There can be no qualifying circumstance because the determination to die must come from the victim.
If there is intention to kill, it may be classified as attempted parricide, murder, or homicide.
The person attempting suicide is not liable. Reason: He should be pitied, not punished.
No presumed intent to kill if the distance is 200 meters.
A pregnant woman who tried to commit suicide by means of poison, but instead of dying, the fetus in her womb was expelled, is not liable for abortion. In order to incur criminal liability for the result not intended, one must be committing a felony [Art. 4; Reyes]. An attempt to commit
There is a special complex crime of illegal discharge of firearm with serious or less serious physical injuries.
ARTICLE 255 – INFANTICIDE Elements: (1) A child was killed by the accused; (2) The deceased child was less than 3 days old (72 hours).
Euthanasia – commonly known as mercykilling; the practice of painlessly putting to death a person suffering from some incurable disease. This article does not contemplate euthanasia where the crime is murder (if without consent; with consent, covered by Article 253). Euthanasia is not lending assistance to suicide. In euthanasia, the victim is not in a position to commit suicide.
Infanticide – the killing of any child less than three days of age, whether the killer is the parent or grandparent, any other relative of the child, or a stranger.
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If the offender is the parent and the victim is less than three days old, the crime is infanticide and not parricide.
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from the maternal womb which results in the death of the foetus. [Reyes citing Guevarra] Ways of committing intentional abortion Using any violence upon the person of the pregnant woman; Acting, but without using violence, without the consent of the woman. (By administering drugs or beverages upon such pregnant woman without her consent.) Acting (by administering drugs or beverages), with the consent of the pregnant woman.
A stranger who cooperates in the perpetration of infanticide committed by the mother or grandparent on the mother’s side, is liable for infanticide, but he must suffer the penalty prescribed for murder. It is necessary that the child be born alive and viable (capable of independent existence). [US v. Vedra (1908)] There is no infanticide when the child was born dead, or although born alive, it could not sustain an independent life when it was killed.
ABORTION vs. INFANTICIDE Abortion Infanticide
Only the mother and maternal grandparents of the child are entitled to the mitigating circumstance of concealing the dishonor. Concealment of dishonor is not an element of infanticide, it merely lowers the penalty.
Fetus could not sustain independent life. No legal viability.
Fetus could sustain an independent life after separation from the mother’s womb.
If the mother as a consequence of abortion suffers death or physical injuries, there is a complex crime of murder or physical injuries and abortion.
If the child is abandoned without any intent to kill and death results as a consequence, the crime committed is not infanticide but abandonment under Article 276.
In intentional abortion, the offender must know of the pregnancy because the particular criminal intent is to cause an abortion.
ARTICLE 256 - INTENTIONAL ABORTION Elements: (a) There is a pregnant woman; (b) Violence is exerted, or drugs or beverages administered, or that the accused otherwise acts upon such pregnant woman; (c) As a result of the use of violence or drugs or beverages upon her, or any other act of the accused, the fetus dies, either in the womb or after having been expelled therefrom; (d) The abortion is intended.
If the woman turns out not to be pregnant and someone performs an abortion upon her, he is liable for an impossible crime if the woman suffers no physical injury. If she dies or suffers injuries, the crime will be homicide, serious physical injuries, etc. FRUSTRATED ABORTION (1) committed if the fetus that is expelled is viable and, therefore, not dead as abortion did not result despite the employment of adequate and sufficient means to make the pregnant woman abort.
Abortion – the willful killing of the foetus in the uterus or the violent expulsion of the foetus
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ARTICLE 257 ABORTION
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ARTICLE 258 - ABORTION PRACTICED BY THE WOMAN HERSELF OR BY PARENTS
Elements: (a) There is a pregnant woman; (b) Violence is used upon such pregnant woman without intending an abortion; (c) The violence is intentionally exerted; (d) Result of violence – fetus dies, either in the womb or expelled therefrom
Elements: There is a pregnant woman who has suffered an abortion; Abortion is intended; Abortion is caused by – (1) The pregnant woman herself; (2) Any other person, with her consent; or (3) Any of her parents, with her consent for the purpose of concealing her dishonour.
Unintentional abortion requires physical violence inflicted deliberately and voluntarily by a third person upon the pregnant woman, without intention to cause the abortion.
If the purpose of abortion is to conceal dishonor, mitigation applies only to pregnant woman and not to parents of pregnant woman, unlike in infanticide.
If the pregnant woman was killed by violence by her husband, the crime committed is the complex crime of parricide with unintentional abortion.
If the purpose of parents is not to conceal dishonor, the crime is intentional abortion.
Unintentional abortion may be committed through negligence as it is enough that the use of violence be voluntary. In one case, the accused was declared guilty of the crime of unintentional abortion through reckless imprudence for having bumped a calesa which resulted in a pregnant woman bumping her abdomen against the wall of the calesa and eventually led to an abortion. [People v. Jose]
ARTICLE 259 - ABORTION PHYSICIAN OR MIDWIFE DISPENSING OF ABORTIVES
BY A AND
Elements: (a) There is a pregnant woman who has suffered an abortion; (b) The abortion is intended; (c) Offender, who must be a physician or midwife, caused or assisted in causing the abortion; (d) Said physician or midwife took advantage of his or her scientific knowledge or skill.
If the act of violence is not felonious, that is, act of self-defense, and there is no knowledge of the woman’s pregnancy, there is no liability. Mere boxing of the stomach taken together with the immediate strangling of the victim in a fight, is not sufficient proof to show an intent to cause abortion. [People v. Salufrania (1988)]
The penalties provided for intentional abortion shall be imposed in the maximum period for physicians and midwives violating this article. Reason: heavier guilt in making use of their knowledge for the destruction of human life, when it should be used only for its preservation. [Reyes citing Albert]
For the crime of abortion, even unintentional, to be held committed, the accused must have known of the pregnancy. [People v. Carnaso]
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If the abortion is produced by a physician to save the life of the mother, there is no liability.
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There is no such crime nowadays because people hit each other even without entering into any pre-conceived agreement. This is an obsolete provision.
Elements (for pharmacists): (1) The offender is a pharmacist; (2) There is no proper prescription from a physician; (3) The offender dispenses any abortive.
If these are not the conditions of the fight, it is not a duel in the sense contemplated in the RPC. It will be a quarrel and anyone who killed the other will be liable for homicide or murder, as the case may be.
Article punishes a pharmacist who merely dispenses with an abortive without the proper prescription of a physician. It is not necessary that the pharmacist knows that the abortive would be used to cause an abortion. What is punished is the dispensing of the abortive without the proper prescription. It is not necessary that the abortive be actually used either.
ARTICLE 261 - CHALLENGING TO A DUEL Modes: (1) Challenging another to a duel; (2) Inciting another to give or accept a challenge to a duel; (3) Scoffing at or decrying another publicly for having refused to accept a challenge to fight a duel.
If pharmacist knew that the abortive would be used for abortion, he would be liable as an accomplice in the crime of abortion.
Persons Responsible: (a) Challenger (b) Instigators
ARTICLE 260 - RESPONSIBILITY OF PARTICIPANTS IN A DUEL Modes: (a) Killing one’s adversary in a duel; (b) Inflicting upon such adversary physical injuries; (c) Making a combat although no physical injuries have been inflicted.
If one challenges another to a duel by shouting “Come down, Olympia, let us measure your prowess. We will see whose intestines will come out. You are a coward if you do not come down”, the crime of challenging to a duel is not committed. What is committed is the crime of light threats under Article 285, paragraph 1. [People v. Tacomoy]
Persons liable (a) The person who killed or inflicted physical injuries upon his adversary, or both combatants in any other case, as principals. (b) The seconds, as accomplices.
CHAPTER II PHYSICAL INJURIES ARTICLE 262 – MUTILATION FIRST MODE Intentionally mutilating another by depriving him, either totally or partially, of some essential organ for reproduction; (Mutilation)
Duel – a formal or regular combat previously consented to by two parties in the presence of two or more seconds of lawful age on each side, who make the selection of arms and fix all the other conditions of the fight to settle some antecedent quarrel.
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(1) becomes insane, imbecilic, impotent or blind (2) (a) loses the use of speech or the power to hear or to smell, or loses an eye, a hand, a foot, an arm, or a leg, or (b) loses the use of any such member; or (c) becomes incapacitated for the work in which he was theretofore habitually engaged, in consequence of the physical injuries inflicted; (3) (a) becomes deformed; or (b) loses any other member of his body; or (c) loses the use thereof; or (d) becomes ill or incapacitated for the performance of the work in which he was habitually engaged for more than 90 days; (4) becomes ill or incapacitated for labor for more than 30 days (but must not be more than 90 days).
There be a castration, that is, mutilation of organs necessary for generation, such as the penis or ovarium; The mutilation is caused purposely and deliberately
SECOND MODE Intentionally making other mutilation, that is, by lopping or clipping off any part of the body of the offended party, other than the essential organ for reproduction, to deprive him of that part of his body. (Mayhem) The offender must have the intention to deprive the offended party of a part of his body. If there is no such intention, the crime will be serious physical injuries. Mutilation – the lopping or clipping off of some part of the body Castration – intentionally mutilating another by depriving him, either totally or partially, of some essential organ for reproduction
In physical injuries, there must no be intent to kill, otherwise the crime is frustrated/attempted murder or homicide as the case may be.
Mayhem – Basically, other intentional mutilation. It is intentionally making mutilation other than some essential organ for reproduction and to deprive him of that part of the body
PHYSICAL INJURIES vs. ATTEMPTED OR FRUSTRATED HOMICIDE Physical Injuries Attempted or Frustrated Homicide
ARTICLE 263 INJURIES
No intent to kill May be committed even if no physical injuries are inflicted offended party Offender has intent to kill party
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Modes of Commission: (a) By wounding; (b) By beating; (c) By assaulting; or (d) By administering injurious substance. (Art. 264)
UNDER THE FIRST TYPE (2) Impotence means an inability to copulate. It includes sterility. (3) Penalty is one degree higher when the victim is under 12 years of age. (4) Blindness under this type must be of two eyes while blindness under the second type requires the loss of an eye only. Mere weakness of vision is not contemplated.
What are serious physical injuries? They are when the injured person, in consequence of the physical injuries inflicted—
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UNDER THE SECOND TYPE (5) Loss of power to hear must be of both ears. If hearing in only one ear is lost, it falls under the third type. (6) Loss of the use of hand or incapacity for work must be permanent. (7) All the body parts mentioned are principal members of the body (eye, hand, foot etc.)
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body or use of the same. Loss of power to hear of right ear only is loss of use of other part of body. UNDER THE FOURTH TYPE Illness – when the wound inflicted did not heal with a certain period of time. (a) Note that under serious physical injuries of the fourth type, illness or incapacity is required, NOT medical attendance.
UNDER THE THIRD TYPE (8) It covers any other part of the body which is not a principal member of the body. (9) Fingers of the hand are not principal members and the loss of such fall under the third type. However, if it is proven that the loss of the fingers resulted in the loss of the use of the hand itself, it would fall under the second type. [US v. Punsalan (1912)]
Paragraphs 2 and 3 refers to the “work in which he was theretofore habitually engaged” Must the injured party have a vocation at the time of the injury? YES, insofar as these two paragraphs are concerned. Incapacity therefore must relate to a certain kind of work only. However, in paragraph 4, incapacity for any kind of work is acceptable, because the phrase “incapacity for labor” is used.
Deformity – physical ugliness, permanent and definite abnormality. It must be conspicuous and visible.
Injury requiring hospitalization for more than thirty days is serious physical injuries under paragraph 4.
Elements of deformity: (1) physical ugliness, (2) permanent and definite abnormality, and (3) it must be conspicuous and visible. All these elements must concur.
When the category of the offense of serious physical injuries depends on the period of illness or incapacity for labor, there must be evidence of the length of that period; otherwise, the offense is only slight physical injuries.
Illustrations: (a) Loss of molar tooth – This is not deformity as it is not visible. (b) Loss of permanent front tooth – This is deformity as it is visible and permanent. (c) Loss of milk front tooth – This is not deformity as it is visible but will be naturally replaced.
Lessening of efficiency due to injury is NOT incapacity. Distinguished from mutilation: In mutilation, the body parts should have been purposely and deliberately lopped or clipped off. This intention is not present in serious physical injuries.
Deformity by loss of teeth refers to injury which cannot be repaired by the action of nature. Loss of both outer ears is a deformity. Loss of the lobule of the ear is a deformity. Loss of index and middle fingers only is either deformity or loss of a member, not a principal one, of his
No attempted or frustrated crime of physical injuries This felony is defined by the gravity of the injury. It is a crime of result. As long as there is no 261
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injury, there can be no attempted or frustrated stage thereof.
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days), or needs medical attendance for the same period of time; (2) The physical injuries must not be those described in the preceding articles.
Classification of physical injuries: (a) Between less serious physical injuries and serious physical injuries, do not consider the period of medical treatment. Only consider the period when the offended party is rendered incapacitated for labor. (b) When the injury created a deformity upon the offended party, disregard the healing duration or the period of medical treatment involved. At once, it is considered serious physical injuries. Serious physical injuries is punished with higher penalties in the following cases: (c) If it is committed against any of the persons referred to in the crime of parricide under Article 246; (d) If any of the circumstances qualifying murder attended its commission.
Qualified as to penalty (1) A fine not exceeding P 500.00, in addition to arresto mayor, when 1. There is a manifest intent to insult or offend the injured person; or 2. There are circumstances adding ignominy to the offense. (2) A higher penalty is imposed when the victim is either – 1. The offender’s parents, ascendants, guardians, curators or teachers; or 2. Persons of rank or person in authority, provided the crime is not direct assault.
ARTICLE 266 - SLIGHT PHYSICAL INJURIES AND MALTREATMENT
ARTICLE 264 ADMINISTERING INJURIOUS SUBSTANCES OR BEVERAGES
Modes (1) Physical injuries incapacitated the offended party for labor from 1-9 days, OR required medical attendance during the same period; (2) Physical injuries which did not prevent the offended party from engaging in his habitual work or which did not require medical attendance; (3) Ill-treatment of another by deed without causing any injury.
Elements: (1) Offender inflicted upon another any serious physical injury; (2) It was done by knowingly administering to him any injurious substance or beverages or by taking advantage of his weakness of mind or credulity; (3) He had no intent to kill.
This involves even ill-treatment where there is no sign of injury requiring medical treatment.
If the accused did not know of the injurious nature of the substances administered, he is not liable under this article.
Slapping the offended party is a form of illtreatment which is a form of slight physical injuries.
ARTICLE 265 - LESS SERIOUS PHYSICAL INJURIES
But if the slapping is done to cast dishonor upon the person slapped, or to humiliate or embarrass the offended party out of a quarrel or anger, the crime is slander by deed.
Elements: (1) Offended party is incapacitated for labor for 10 days or more (but not more than 30 262
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4. When the woman is under 12 years of age (Statutory Rape) or is demented.
Between slight physical injuries and less serious physical injuries, not only the healing duration of the injury will be considered but also the medical attendance required to treat the injury.
Second Mode: Rape Through Sexual Assault
So the healing duration may be one to nine days, but if the medical treatment continues beyond nine days, the physical injuries would already qualify as less serious physical injuries.
Elements: (a) Offender commits an act of sexual assault; (b) The act of sexual assault is committed by any of the following means: (1) By inserting his penis into another person's mouth or anal orifice; or (2) By inserting any instrument or object into the genital or anal orifice of another person; (c) The act of sexual assault is accomplished under any of the following circumstances: (1) By using force or intimidation; or (2) When the woman is deprived of reason or otherwise unconscious; or (3) By means of fraudulent machination or grave abuse of authority; or (4) When the woman is under 12 years of age or demented.
The medical treatment may have lasted for nine days, but if the offended party is still incapacitated for labor beyond nine days, the physical injuries are already considered less serious physical injuries. Where there is no evidence of actual injury, it is only slight physical injuries. In the absence of proof as to the period of the offended party’s incapacity for labor or of the required medical attendance, the crime committed is slight physical injuries.
ARTICLE 266-A - RAPE (AS AMENDED BY RA 8353)
CLASSIFICATIONS OF RAPE (1) Rape by sexual intercourse 1. Offended party is always a woman 2. Offender is always a man.
First Mode: Rape through sexual intercourse without consent of the woman: (Rape by Sexual Intercourse)
(2) Sexual assault 1. Rape can now be committed by a man or a woman, that is, if a woman or a man uses an instrument on anal orifice of male, she or he can be liable for rape. 2. Inserting a finger inside the genital of a woman is rape through sexual assault within the context of ‘object’.
Elements: (1) Offender is a man; (2) Offender had carnal knowledge of a woman; (3) Such act is accomplished under any of the following circumstances: 1. By using force, threat or intimidation; 2. When the woman is deprived of reason or is otherwise unconscious; 3. By means of fraudulent machination or grave abuse of authority;
AGGRAVATING CIRCUMSTANCES: (1) If the victim: (a) Is under 18 yrs. old, & the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or 263
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affinity w/in the 3rd civil degree, or the common law spouse of the parent of the victim (b) Is under the custody of the police / military authorities / law enforcement agency (c) Is a religious and such legitimate vocation is known by the offender before or at the time of rape (d) is a child below 7 yrs. Old; (e) suffered permanent or physical mutilation or disability by reason or on the occasion of rape (2) If the offender: (a) is afflicted with a sexually transmissible disease & the virus / disease is transmitted to the victim; (b) is a member of the AFP / PNP / any law enforcement agency / penal institution, & took advantage of his position; (c) knew of the pregnancy of the offended party at the time of the commission of rape; (d) knew of the mental disability, emotional disorder, & / or physical handicap of the offended party at the time of the commission of rape (3) If Rape is committed in full view of the spouse, parent, any of the children, or other relatives w/in the 3rd civil degree of consanguinity
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her parents, grandparents or guardian if the woman was a minor or incapacitated Marriage of the victim w/ one of the offenders benefits not only the principal but also the accomplices and accessories
Marital rape recognized
Marriage extinguishes the penal action only as to the principal (the person who married the victim), and cannot be extended to coprincipals in case of MULTIPLE RAPE
NOT Marital rape recognized
Complete penetration is NOT necessary. The slightest penetration—contact with the labia— will consummate the rape. There is NO crime of FRUSTRATED RAPE because in rape, from the moment the offender has carnal knowledge of the victim, he actually attains his purpose, all the essential elements of the offense have been accomplished. [People v. Orita (1990)] Rape must have specific intent or lewd design. For rape to be consummated, a slight brush or scrape of the penis on the external layer of the vagina will not suffice. Mere touching of the external layer of the vagina without the intent to enter the same cannot be construed as slight penetration. Accused is only liable for ATTEMPTED RAPE.
Old Anti-Rape Law vs. RA 8353 Old Anti-Rape Law RA 8553
Conviction does not require a medico-legal finding of any penetration on the part of the woman.
Crime against chastity Crime against persons May be committed by Under the 2nd type, a man against a sexual assault may be woman only committed by any person against any person
FORCE, THREAT, OR INTIMIDATION Force employed against the victim of the rape need not be of such character as could be resisted. When the offender has an ascendancy or influence over the girl, it is not necessary that she put up a determined resistance. A rape
PRIVATE CRIME May be prosecuted even Complaint must be if the woman does not filed by the woman or file a complaint 264
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victim does not have the burden of proving resistance. [People v. Metin (2003)]
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“Deprived of reason or unconscious” means that the victim has no will to give consent intelligently and freely. The inquiry should likewise determine whether the victim was fully informed of all considerations so as to make a free and informed decision regarding the grant of consent.
It is not necessary that the force employed against the complaining woman in rape to be so great or of such a character as could not be resisted. It is sufficient that the force used is sufficient to consummate the culprit’s purpose of copulating with the offended woman. [People v. Savellano (1974)]
Whether the complaint stated that the victim was fast asleep or half-asleep or drowsy or semi-conscious is not determinative of the crime of rape. For he who lies with a woman while the latter is in a state of being drowsy is guilty of rape. Drowsiness is defined as the state of being drowsy, i.e., ready to fall asleep or halfasleep. [People v. Siarza]
Intimidation must be viewed in light of the victim’s perception and judgment at the time of rape and not by any hard and fast rule. It is enough that it produces fear – fear that if the victim does not yield to the bestial demands of the accused, something would happen to her at the moment or thereafter, as when she is threatened with death if she reports the incident. [People v. Metin (2003)]
BY MEANS OF FRAUDULENT MACHINATION OR GRAVE ABUSE OF AUTHORITY Rape by means of fraudulent machinations and grave abuse of authority absorbs the crime of qualified and simple seduction.
The Supreme Court has ruled that the moral ascendancy or influence exercised by the accused over the victim substitutes for the element of physical force or intimidation such as those committed by: (a) Fathers against their daughters (People v. Bayona, 2000) (b) Stepfathers against their stepdaughters (People v. Vitor, 2002) (c) A godfather against his goddaughter (People v. Casil, 1995) (d) Uncles against their nieces (People v. Betonio, 1997) (e) The first cousin of the victim’s mother (People v. Perez, 1999)
STATUTORY RAPE 1. Statutory rape is the rape of a woman who is below 12 years of age. Here, the victim is conclusively presumed incapable of giving consent to sexual intercourse with another. [People v. Negosa (2003)] 2. This is consummated when the victim is below 12 yrs. old. Victim’s consent is immaterial, and so is the offender’s knowledge of the victim’s age. 3. Carnal knowledge of a child below 12 yrs. old even if she is engaged in prostitution is still considered statutory rape.
WHEN THE OFFENDED PARTY IS DEPRIVED OF REASON OR IS OTHERWISE UNCONSCIOUS In one case, this was ruled to cover the rape of a 16-year old mental retardate with the intellectual capacity of a 9-year-old, notwithstanding the victim’s actual age.
Special qualifying circumstances have to be alleged in the information for it to be appreciated. [People v. Gallo] In this case, Gallo was found guilty of the crime of qualified rape with the penalty of death. The information filed against him does not allege his relationship with the victim, his daughter, thus, it CANNOT 265
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be considered as a qualifying circumstance. The case was reopened and the judgment is modified from death to reclusion perpetua.
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An accused may be convicted of rape on the sole testimony of the offended woman. When several persons conspired to rape a single victim, each shall be liable for the rape committed personally by him, as well as those committed by the others.
Since relationship qualifies the crime of rape, there must be clear proof of relationship. [People v. Berana] In this case, a 14-year old was raped by her brother-in-law. To effectively prosecute the accused for the crime of rape committed by a relative by affinity w/in the 3rd civil degree, it must be established that: the accused is legally married to the victim’s sister; and the victim and the accused’s wife are full or half-blood siblings. In this case, relationship was not adequately substantiated.
What Determines the Number of Times the Victim was Raped? In one case, the accused ejaculated twice during the time that he consummated the rape. He did not withdraw his penis to insert it again into the vagina or to touch the labia majora and the labia minora when he ejaculated the second time. It is not the number of times that appellant ejaculated but the penetration or ‘touching’ that determines the consummation of the sexual act. Thus appellant committed only one count of rape. [People v. Ferrer; People v. Orilla]
RAPE THROUGH SEXUAL ASSAULT The insertion of fingers constitutes consummated rape through sexual assault under RA 8353. The contact of the male’s penis with the woman’s vagina is referred to as ‘rape with sexual intercourse”, while the sexual abuse under par.2 of Art.266-A, RPC is categorized as “rape through sexual assault”.
Effect of Pardon (1) Subsequent valid marriage between the offender and the offended party shall extinguish the criminal action or the penalty imposed but only as to the husband (2) When the legal husband is the offender, the subsequent forgiveness by the wife as the offended party shall extinguish the criminal action or the penalty, provided that their marriage is NOT VOID ab initio.
Insertion of penis into the mouth of a 10-year old boy is “Rape by Sexual Assault” punished under par.2, Article 266-A, RPC. [Ordinario v. People] Evidence which may be accepted in the prosecution of rape: Any physical overt act manifesting resistance against the act of rape in any degree from the offended party; or Where the offended party is so situated as to render him/her incapable of giving his consent
Rape with homicide is a special complex crime if it is committed by reason or on the occasion of the rape. Rape may, likewise, be committed in a room adjacent to where the victim's family is sleeping, or even in a room shared with other people. There is no rule that rape can only be committed in seclusion. [People v. Glivano (2008)]
Rape shield rule - means that the character of the offended woman is immaterial in rape.
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The force, violence or intimidation in rape is a relative term, depending not only on the age, size, and strength of the parties but also on their relationship with each other. [People v. Tuazon (2007)]
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or threat of force, physical or other harm or threat of physical or other harm, or intimidation directed against the woman or child. This shall include, but not limited to, the following acts committed with the purpose or effect of controlling or restricting the woman's or her child's movement or conduct: 1. Threatening to deprive or actually depriving the woman or her child of custody to her/his family; 2. Depriving or threatening to deprive the woman or her children of financial support legally due her or her family, or deliberately providing the woman's children insufficient financial support; 3. Depriving or threatening to deprive the woman or her child of a legal right; 4. Preventing the woman in engaging in any legitimate profession, occupation, business or activity or controlling the victim's own money or properties, or solely controlling the conjugal or common money, or properties; (6) Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling her actions or decisions; (7) Causing or attempting to cause the woman or her child to engage in any sexual activity which does not constitute rape, by force or threat of force, physical harm, or through intimidation directed against the woman or her child or her/his immediate family; (8) Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to, the following acts: 1. Stalking or following the woman or her child in public or private places; 2. Peering in the window or lingering outside the residence of the woman or her child;
SPECIAL LAWS RA 9262: ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT OF 2004 Violence against women and their children – refers to any act or series of acts committed by any person against a women who is wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harrasment or arbitrary deprivation of liberty. Punishable Acts: Sec. 5. Acts of Violence Against Women and Their Children - The crime of violence against women and their children is committed through any of the following acts: (1) Causing physical harm to the woman or her child; (2) Threatening to cause the woman or her child physical harm; (3) Attempting to cause the woman or her child physical harm; (4) Placing the woman or her child in fear of imminent physical harm; (5) Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child has the right to desist from or desist from conduct which the woman or her child has the right to engage in, or attempting to restrict or restricting the woman's or her child's freedom of movement or conduct by force 267
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3. Entering or remaining in the dwelling or on the property of the woman or her child against her/his will; 4. Destroying the property and personal belongings or inflicting harm to animals or pets of the woman or her child; and 5. Engaging in any form of harassment or violence; (9) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor children of access to the woman's child/children.
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(d)
RA 9775: ANTI-CHILD PORNOGRAPHY ACT OF 2009 Sec. 3. Definition of Terms. (a) "Child" refers to a person below eighteen (18) years of age or over, but is unable to fully take care of himself/herself from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition. For the purpose of this Act, a child shall also refer to: ▪ a person regardless of age who is presented, depicted or portrayed as a child as defined herein; and ▪ computer-generated, digitally or manually crafted images or graphics of a person who is represented or who is made to appear to be a child as defined herein. (b) "Child pornography" refers to any representation, whether visual, audio, or written combination thereof, by electronic, mechanical, digital, optical, magnetic or any other means, of child engaged or involved in real or simulated explicit sexual activities. (c) "Explicit Sexual Activity" includes actual or simulated –
(e)
(f)
(g)
(h)
(i)
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As to form: a. sexual intercourse or lascivious act including, but not limited to, contact involving genital to genital, oral to genital, anal to genital, or oral to anal, whether between persons of the same or opposite sex; ▪ bestiality; ▪ masturbation; ▪ sadistic or masochistic abuse; ▪ lascivious exhibition of the genitals, buttocks, breasts, pubic area and/or anus; or ▪ use of any object or instrument for lascivious acts "Internet address" refers to a website, bulletin board service, internet chat room or news group, or any other internet or shared network protocol address. "Internet cafe or kiosk" refers to an establishment that offers or proposes to offer services to the public for the use of its computer/s or computer system for the purpose of accessing the internet, computer games or related services. "Internet content host" refers to a person who hosts or who proposes to host internet content in the Philippines. "Internet service provider (ISP)" refers to a person or entity that supplies or proposes to supply, an internet carriage service to the public. "Grooming" refers to the act of preparing a child or someone who the offender believes to be a child for sexual activity or sexual relationship by communicating any form of child pornography. It includes online enticement or enticement through any other means. "Luring" refers to the act of communicating, by means of a computer system, with a child or someone who the offender believes to be a child for the purpose of facilitating the commission of sexual activity or
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production of any form of child pornography. (j) "Pandering" refers to the act of offering, advertising, promoting, representing or distributing through any means any material or purported material that is intended to cause another to believe that the material or purported material contains any form of child pornography, regardless of the actual content of the material or purported material. (k) "Person" refers to any natural or juridical entity.
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knowingly permit the child to engage, participate or assist in any form of child pornography; (8) To engage in the luring or grooming of a child; (9) To engage in pandering of any form of child pornography; (10) To willfully access any form of child pornography; (11) To conspire to commit any of the prohibited acts stated in this section. Conspiracy to commit any form of child pornography shall be committed when two (2) or more persons come to an agreement concerning the commission of any of the said prohibited acts and decide to commit it; and (12) To possess any form of child pornography.
Unlawful or Prohibited Acts It shall be unlawful for any person: (1) To hire, employ, use, persuade, induce or coerce a child to perform in the creation or production of any form of child pornography; (2) To produce, direct, manufacture or create any form of child pornography; (3) To publish offer, transmit, sell, distribute, broadcast, advertise, promote, export or import any form of child pornography; (4) To possess any form of child pornography with the intent to sell, distribute, publish, or broadcast: Provided, That possession of three (3) or more articles of child pornography of the same form shall be prima facie evidence of the intent to sell, distribute, publish or broadcast; (5) To knowingly, willfully and intentionally provide a venue for the commission of prohibited acts as, but not limited to, dens, private rooms, cubicles, cinemas, houses or in establishments purporting to be a legitimate business; (6) For film distributors, theaters and telecommunication companies, by themselves or in cooperation with other entities, to distribute any form of child pornography; (7) For a parent, legal guardian or person having custody or control of a child to
Syndicated Child Pornography - The crime of child pornography is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another Who May File a Complaint. (1) Offended party; (2) Parents or guardians; (3) Ascendant or collateral relative within the third degree of consanguinity; (4) Officer, social worker or representative of a licensed child-caring institution; (5) Officer or social worker of the Department of Social Welfare and Development (DSWD); (6) Local social welfare development officer; (7) Barangay chairman; (8) Any law enforcement officer; (9) At least three (3) concerned responsible citizens residing in the place where the violation occurred; or (10) Any person who has personal knowledge of the circumstances of the commission of any offense under this Act.
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RA 8049: ANTI-HAZING LAW
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employed by anybody during such initiation rites.
Hazing (1) Definition Section 1. Hazing, as used in this Act, is an initiation rite or practice as a prerequisite for admission into membership in a fraternity, sorority or organization by placing the recruit, neophyte or applicant in some embarrassing or humiliating situations such as forcing him to do menial, silly, foolish and other similar tasks or activities or otherwise subjecting him to physical or psychological suffering or injury.
Sec. 3. The head of the school or organization or their representatives must assign at least two (2) representatives of the school or organization, as the case may be, to be present during the initiation. It is the duty of such representative to see to it that no physical harm of any kind shall be inflicted upon a recruit, neophyte or applicant. (3) Who Are Liable / Punishable Acts Section 4. If the person subjected to hazing or other forms of initiation rites suffers any physical injury or dies as a result thereof, the officers and members of the fraternity, sorority or organization who actually participated in the infliction of physical harm shall be liable as principals. The person or persons who participated in the hazing shall suffer the penalty of: reclusion perpetua (life imprisonment) if death, rape, sodomy or mutilation results therefrom. reclusion temporal in its maximum period if in consequence of the hazing the victim shall become insane, imbecile, impotent or blind. reclusion temporal in its medium period if in consequence of the hazing the victim shall have lost the use of speech or the power to hear or to smell, or shall have lost an eye, a hand, a foot, an arm or a leg or shall have lost the use of any such member shall have become incapacitated for the activity or work in which he was habitually engaged. reclusion temporal in its minimum period if in consequence of the hazing the victim shall become deformed or shall have lost any other part of his body, or shall have lost the use thereof, or shall have been ill or incapacitated for the performance on the activity or work in which he was habitually
The term "organization" shall include any club or the Armed Forces of the Philippines, Philippine National Police, Philippine Military Academy, or officer and cadet corp of the Citizen's Military Training and Citizen's Army Training. The physical, mental and psychological testing and training procedure and practices to determine and enhance the physical, mental and psychological fitness of prospective regular members of the Armed Forces of the Philippines and the Philippine National Police as approved by the Secretary of National Defense and the National Police Commission duly recommended by the Chief of Staff, Armed Forces of the Philippines and the Director General of the Philippine National Police shall not be considered as hazing for the purposes of this Act. (2) Allowed Initiation Rites Sec. 2. No hazing or initiation rites in any form or manner by a fraternity, sorority or organization shall be allowed without prior written notice to the school authorities or head of organization seven (7) days before the conduct of such initiation. The written notice shall indicate the period of the initiation activities which shall not exceed three (3) days, shall include the names of those to be subjected to such activities, and shall further contain an undertaking that no physical violence be
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engaged for a period of more than ninety (90) days. prision mayor in its maximum period if in consequence of the hazing the victim shall have been ill or incapacitated for the performance on the activity or work in which he was habitually engaged for a period of more than thirty (30) days. prision mayor in its medium period if in consequence of the hazing the victim shall have been ill or incapacitated for the performance on the activity or work in which he was habitually engaged for a period of ten (10) days or more, or that the injury sustained shall require medical assistance for the same period. prision mayor in its minimum period if in consequence of the hazing the victim shall have been ill or incapacitated for the performance on the activity or work in which he was habitually engaged from one (1) to nine (9) days, or that the injury sustained shall require medical assistance for the same period. prision correccional in its maximum period if in consequence of the hazing the victim sustained physical injuries which do not prevent him from engaging in his habitual activity or work nor require medical attendance.
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hazing will be committed on his person, is prevented from quitting; (3) recruit, neophyte or applicant having undergone hazing is prevented from reporting the unlawful act to his parents or guardians, to the proper school authorities, or to the police authorities, through force, violence, threat or intimidation; (4) hazing is committed outside of the school or institution; or (5) victim is below twelve (12) years of age at the time of the hazing. The owner of the place where hazing is conducted shall be liable as an accomplice, when he has actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring. If the hazing is held in the home of one of the officers or members of the fraternity, group, or organization, the parents shall be held liable as principals when they have actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring. The school authorities including faculty members who consent to the hazing or who have actual knowledge thereof, but failed to take any action to prevent the same from occurring shall be punished as accomplices for the acts of hazing committed by the perpetrators.
The responsible officials of the school or of the police, military or citizen's army training organization, may impose the appropriate administrative sanctions on the person or the persons charged under this provision even before their conviction. The maximum penalty herein provided shall be imposed in any of the following instances: (1) recruitment is accompanied by force, violence, threat, intimidation or deceit on the person of the recruit who refuses to join; (2) recruit, neophyte or applicant initially consents to join but upon learning that
The officers, former officers, or alumni of the organization, group, fraternity or sorority who actually planned the hazing although not present when the acts constituting the hazing were committed shall be liable as principals. A fraternity or sorority's adviser who is present when the acts constituting the hazing were committed and failed to take action to prevent the same from occurring shall be liable as principal.
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The presence of any person during the hazing is prima facie evidence of participation therein as principal unless he prevented the commission of the acts punishable herein.
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1.
Acting as a procurer of a child prostitute; 2. Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; 3. Taking advantage of influence or relationship to procure a child as prostitute; 4. Threatening or using violence towards a child to engage him as a prostitute; or 5. Giving monetary consideration goods or other pecuniary benefit to a child with intent to engage such child in prostitution. (2) Those who commit the act of sexual intercourse of lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That when the victims is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; and (3) Those who derive profit or advantage therefrom, whether as manager or owner of the establishment where the prostitution takes place, or of the sauna, disco, bar, resort, place of entertainment or establishment serving as a cover or which engages in prostitution in addition to the activity for which the license has been issued to said establishment.
Any person charged under this provision shall not be entitled to the mitigating circumstance that there was no intention to commit so grave a wrong. This section shall apply to the president, manager, director or other responsible officer of a corporation engaged in hazing as a requirement for employment in the manner provided herein.
RA 7610: SPECIAL PROTECTION OF CHILDREN AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION ACT Coverage "Children" - person below 18 years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition. Child Prostitution/Punishable Acts Section 5. Child Prostitution and Other Sexual Abuse. – Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: (1) Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following:
Section 6. Attempt To Commit Child Prostitution. – There is an attempt to commit child prostitution under Section 5, paragraph (a) hereof when any person who, not being a relative of a child, is found alone with the said child inside the room or cubicle of a house, an 272
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inn, hotel, motel, pension house, apartelle or other similar establishments, vessel, vehicle or any other hidden or secluded area under circumstances which would lead a reasonable person to believe that the child is about to be exploited in prostitution and other sexual abuse.
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(3) When a doctor, hospital or clinic official or employee, nurse, midwife, local civil registrar or any other person simulates birth for the purpose of child trafficking; or (4) When a person engages in the act of finding children among low-income families, hospitals, clinics, nurseries, daycare centers, or other child-caring institutions who can be offered for the purpose of child trafficking.
There is also an attempt to commit child prostitution, under paragraph (b) of Section 5 hereof when any person is receiving services from a child in a sauna parlor or bath, massage clinic, health club and other similar establishments. A penalty lower by two (2) degrees than that prescribed for the consummated felony under Section 5 hereof shall be imposed upon the principals of the attempt to commit the crime of child prostitution under this Act, or, in the proper case, under the Revised Penal Code.
A penalty lower two (2) degrees than that prescribed for the consummated felony under Section 7 hereof shall be imposed upon the principals of the attempt to commit child trafficking.
RA 9344: JUVENILE JUSTICE AND WELFARE ACT (AS FURTHER AMENDED BY THE RA 10630 / THE ACT STRENGTHENING THE JUVENILE JUSTICE SYSTEM IN THE PHILIPPINES)
Child Trafficking/Punishable Acts Section 7. Child Trafficking. – Any person who shall engage in trading and dealing with children including, but not limited to, the act of buying and selling of a child for money, or for any other consideration, or barter, shall suffer the penalty of reclusion temporal to reclusion perpetua. The penalty shall be imposed in its maximum period when the victim is under twelve (12) years of age.
"Child in Conflict with the Law" - a child who is alleged as, accused of, or adjudged as, having committed an offense under Philippine laws. "Juvenile Justice and Welfare System” – refers to a system dealing with children at risk and children in conflict with the law, which provides child-appropriate proceedings, including programs and services for prevention, diversion, rehabilitation, re-integration and aftercare to ensure their normal growth and development.
Section 8. Attempt to Commit Child Trafficking. – There is an attempt to commit child trafficking under Section 7 of this Act: (1) When a child travels alone to a foreign country without valid reason therefor and without clearance issued by the Department of Social Welfare and Development or written permit or justification from the child's parents or legal guardian; (2) When a person, agency, establishment or child-caring institution recruits women or couples to bear children for the purpose of child trafficking;
Punishable Acts SEC. 60. Prohibition Against Labeling and Shaming. - In the conduct of the proceedings beginning from the initial contact with the child, the competent authorities must refrain from branding or labeling children as young criminals, juvenile delinquents, prostitutes or attaching to them in any manner any other derogatory names. Likewise, no discriminatory remarks and practices shall be allowed 273
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PD 603: CHILD AND YOUTH WELFARE CODE
particularly with respect to the child's class or ethnic origin.
Punishable Acts Article 59. Crimes. - Criminal liability shall attach to any parent who: Conceals or abandons the child with intent to make such child lose his civil status. Abandons the child under such circumstances as to deprive him of the love, care and protection he needs. Sells or abandons the child to another person for valuable consideration. Neglects the child by not giving him the education which the family's station in life and financial conditions permit. Fails or refuses, without justifiable grounds, to enroll the child as required by Article 72. Causes, abates, or permits the truancy of the child from the school where he is enrolled. "Truancy" as here used means absence without cause for more than 20 schooldays, not necessarily consecutive. It shall be the duty of the teacher in charge to report to the parents the absences of the child the moment these exceed 5 schooldays. Improperly exploits the child by using him, directly or indirectly, such as for purposes of begging and other acts which are inimical to his interest and welfare. Inflicts cruel and unusual punishment upon the child or deliberately subjects him to indignation and other excessive chastisement that embarrass or humiliate him. Causes or encourages the child to lead an immoral or dissolute life. Permits the child to possess, handle or carry a deadly weapon, regardless of its ownership. Allows or requires the child to drive without a license or with a license which the parent knows to have been illegally procured. If the vehicle driven by the child belongs to
SEC. 61. Other Prohibited Acts. - The following and any other similar acts shall be considered prejudicial and detrimental to the psychological, emotional, social, spiritual, moral and physical health and well-being of the child in conflict with the law and therefore, prohibited: (1) Employment of threats of whatever kind and nature; (2) Employment of abusive, coercive and punitive measures such as cursing, beating, stripping, and solitary confinement; (3) Employment of degrading, inhuman end cruel forms of punishment such as shaving the heads, pouring irritating, corrosive or harmful substances over the body of the child in conflict with the law, or forcing him/her to walk around the community wearing signs which embarrass, humiliate, and degrade his/her personality and dignity; and (4) Compelling the child to perform involuntary servitude in any and all forms under any and all instances. SEC. 62. Violation of the Provisions of this Act or Rules or Regulations in General. - Any person who violates any provision of this Act or any rule or regulation promulgated in accordance thereof shall, upon conviction for each act or omission, be punished by a fine of not less than P20,000 but not more than P50,000 or suffer imprisonment of 8-10 years, or both such fine and imprisonment at the discretion of the court, unless a higher penalty is provided for in the RPC or special laws. If the offender is a public officer or employee, he/she shall, in addition to such fine and/or imprisonment, be held administratively liable and shall suffer the penalty of perpetual absolute disqualification.
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the parent, it shall be presumed that he permitted or ordered the child to drive.
known as the Indeterminate Sentence Law, as amended.
"Parents" as here used shall include the guardian and the head of the institution or foster home which has custody of the child.
Sec. 6 Accessory – Any person who, having knowledge of the commission of the crime of terrorism or conspiracy to commit terrorism, and without having participated therein, either as principal or accomplice under Articles 17 and 18 of the RPC, takes part subsequent to its commission in any of the following manner: (a) by profiting himself or assisting the offender to profit by the effects of the crime; (b) by concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent discovery; (c) by harboring, concealing, or assisting in the escape of the principal or conspirator of the crime, shall suffer the penalty of ten (10) years and one day to twelve years of imprisonment. Notwithstanding the above paragraph, the penalties prescribed for accessories shall not be imposed upon those who are such with respect to their spouses, ascendants, descendants, legitimate, natural and adopted brothers and sisters, or relatives by affinity within the same degree, with the single exception of accessories falling within the provisions of subparagraph (a).
RA 9372: HUMAN SECURITY ACT OF 2007 Punishable Acts of Terrorism/Who are Liable Sec. 3 Terrorism – Any person who commits an act punishable under any of the following provisions of the RPC: (1) Art. 122 (Piracy in General and Mutiny in the High Seas or in Philippine Waters); (2) Art. 134 (Rebellion or Insurrection); (3) Art. 143-A (Coup d’ Etat), including acts committed by private persons; (4) Art. 248 (Murder); (5) Art. 267 (Kidnapping and Serious Illegal Detention); (6) Art. 324 (Crimes Involving Destruction); or under these special laws: (1) PD 1613 (The Law on Arson); (2) RA 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990); (3) RA 5207 (Atomic Energy Regulatory and Liability Act of 1968); (4) RA 6235 (Anti-Hijacking Law); (5) PD 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974) and, (6) PD 1866, as amended (Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives)
Title IX. Crimes against Personal Liberty and Security Chapter I: Crimes against Liberty (1) Article 267 - Kidnapping and Serious Illegal Detention (2) Article 268 - Slight Illegal Detention (3) Article 269 - Unlawful Arrest (4) Article 270 - Kidnapping and Failure to Return a Minor (5) Article 271 - Inducing a Minor to Abandon His Home (6) Article 272 – Slavery (7) Article 273 - Exploitation of Child Labor
thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand, shall be guilty of the crime of terrorism and shall suffer the penalty of forty (40) years of imprisonment, without the benefit of parole as provided for under Act No. 4103, otherwise 275
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(8) Article 274 - Services Rendered Under Compulsion in Payment of Debt
(d) In the commission of the offense, any of the following circumstances is present: (1) The kidnapping lasts for more than 3 days; (2) It is committed simulating public authority; (3) Any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or (4) The person kidnapped or detained is a minor, female, or a public officer.
Chapter II: Crimes against Security (1) Article 275 - Abandonment of Persons in Danger and Abandonment of Own Victim (2) Article 276 - Abandoning a Minor (3) Article 277 - Abandonment of Minor by Person Entrusted With Custody; Indifference of Parents (4) Article 278 - Exploitation of Minors (5) Article 280 - Qualified Trespass to Dwelling (6) Article 281 - Other Forms of Trespass (7) Article 282 - Grave Threats (8) Article 283 - Light Threats (9) Article 284 - Bond for Good Behavior (10) Article 285 - Other Light Threats (11) Article 286 - Grave Coercions (12) Article 287 - Light Coercions (13) Article 288 - Other Similar Coercions (14) Article 289 - Formation, Maintenance, and Prohibition of Combination of Capital or Labor through Violence or Threats
The essential element of kidnapping is the deprivation of the offended party’s liberty under any of the four instances enumerated. But when the kidnapping was committed for the purpose of extorting ransom, it is not necessary that one or any of circumstances enumerated be present. If kidnapping be committed under element d (2), (3), or (4), it is not necessary that the kidnapping last for more than 3 days. QUALIFYING CIRCUMSTANCES (penalty → death) (1) Purpose is to extort ransom. (2) When the victim is killed or dies as a consequence of the detention. (3) When the victim is raped. (4) When victim is subjected to torture or dehumanizing acts.
Chapter III: Discovery and Revelation of Secrets (1) Article 290 - Discovering Secrets through Seizure of Correspondence (2) Article 291 - Revealing Secrets with Abuse of Office (3) Article 292 - Revelation of Industrial Secrets
The offenders here are private individuals or public officers acting in their private capacity. If they are public officers, they are covered by the crimes under Title 2.
CHAPTER I CRIMES AGAINST LIBERTY ARTICLE 267 - KIDNAPPING SERIOUS ILLEGAL DETENTION
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AND
Elements: (a) Offender is a private individual; (b) He kidnaps or detains another, or in any other manner deprives the latter of his liberty; (c) The act of detention or kidnapping must be illegal;
When a public officer conspires with a private person in the commission of any of the crimes under Title IX, the crime is also one committed under this title and not under Title II.
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The purpose is immaterial when any of the circumstances in the first paragraph of Art. 267 is present.
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but the victim is thereafter prevented, with the use of force, from leaving the place where he was brought to with his consent and is detained against his will, the offender is still guilty of kidnapping and serious illegal detention. [People v. Pickrell, 2003]
Ransom Means money, price or consideration paid or demanded for the redemption of a captured person that would release him from captivity. No specific form of ransom is required to consummate the felony as long as the ransom was intended as a bargaining chip in exchange for the victim’s freedom. Whether or not ransom is actually paid to or received by the perpetrator is of no moment. [People v. Jatulan, 2007]
When detention is illegal It is not ordered by competent authority nor permitted by law. Special complex crime of Kidnapping with Murder When the victim dies or is killed as a consequence of the detention, which is covered by the last paragraph of Art. 267 as amended.
Actual demand for ransom is not necessary, as long as it can be proven that the kidnapping was done for the purpose of extorting money.
Forcible abduction If a woman is transported from one place to another by virtue of restraining her of her liberty, and that act is coupled with lewd designs.
It is essential that there be actual confinement or restriction of the person of the offended party. It is not necessary that the victim be placed in an enclosure, as long as he is deprived, in any manner, of his liberty.
Serious illegal detention If a woman is transported just to restrain her of her liberty. There is no lewd design or lewd intent.
It suffices that there be actual or manifest restraint on the person or liberty of the victim. Accused were guilty of kidnapping although the victim was found, at the time of her rescue, outside of the house where she was brought, talking to the house owner who was the uncle of the accused. Her failure to attempt to escape was explained by her to be due to her fear and threats of the accused to kill her should she do so. In kidnapping, it is not necessary that the offended party be kept within an enclosure to restrict her freedom of locomotion. [People v. Cortez, et al., 2000]
Grave coercion If a woman is carried away just to break her will, to compel her to agree to the demand or request by the offender. Illegal Detention
Arbitrary Detention
Committed by a private individual who unlawfully deprives a person of his liberty
Committed by public officer or employee who detains a person without legal ground
Crime against Crime against the personal liberty fundamental laws of the State
The victim’s lack of consent is also a fundamental element of kidnapping and serious illegal detention. The involuntariness of the seizure and detention is the very essence of the crime. Although the victim may have initially consented to go with the offender to a place,
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it cannot be inferred that the latter’s purpose was to actually detain or deprive the victim of his liberty, the subsequent killing of the victim did not constitute the crime of kidnapping. The demand for ransom did not convert the crime into kidnapping, since no deprivation of liberty was involved. [People v Padica (1993)]
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the felony. It is sufficient that the deprivation of liberty was for extorting ransom even if none of the four circumstances mentioned in Article 267 were present in its perpetration. [People v. Cenahonon (2007)] Article 267 has been modified by RA 7659 (an act to impose the death penalty on certain heinous crimes, amending for that purpose the revised penal laws, as amended, other special penal laws, and for other purposes) in the following respects: (1) Illegal detention becomes serious when it shall have lasted for more than three days, instead of five days as originally provided; (2) In paragraph 4, if the person kidnapped or detained was a minor and the offender was anyone of the parents, the latter has been expressly excluded from the provision. The liability of the parent is provided for in the last paragraph of Article 271; (3) A paragraph was added to Article 267, which states: When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture, or dehumanizing acts, the maximum penalty shall be imposed. (4) The amendment introduced in our criminal statutes the concept of "special complex crime" of kidnapping with murder or homicide. (5) It eliminated the distinction drawn by the courts between those cases where the killing of the kidnapped victim was purposely sought by the accused, and those where the killing of the victim was not deliberately resorted to but was merely an afterthought. (6) Although the victim was raped 27 times, there is only one crime of kidnapping with rape, not kidnapping with rape and 26 separate counts of rape. In a way, R.A. 7659 depreciated the seriousness of rape because no matter how many times the
The essence of kidnapping is the actual deprivation of the victim’s liberty coupled with the intent of the accused to effect it. [People v Luartes (1999)] Physical detention is not necessary. It is enough that the victim is under the complete control of the perpetrators as in this case when the Japanese victim had to rely on his abductors for survival after he was tricked into believing that the police was after him. It was also held in this case that keeping a person as collateral for payment of an obligation is kidnapping. [People v. Tomio] Leaving a child in a place from which he did not know the way home, even if he had the freedom to roam around the place of detention, would still amount to deprivation of liberty, for under such a situation, the child’s freedom remains at the mercy and control of the abductor. [People v Baluya, 2011] The elements of kidnapping for ransom under Article 267 of the RPC as amended by RA 7659 warranting the imposition of the death penalty are as follows: (1) intent on the part of the accused to deprive the victim of his liberty; (2) actual deprivation of the victim of his liberty; and (3) motive of the accused, which is extorting ransom for the release of the victim. Neither actual demand for nor payment of ransom is necessary for the consummation of 278
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victim was raped, like in the present case, there is only one crime committed – the special complex crime of kidnapping with rape. [People v Felipe Mirandilla, 2011]
Kidnapping Rape
This felony is committed if any of the five circumstances in the commission of kidnapping or detention enumerated in Article 267 is not present. Privileged mitigating circumstances – The penalty is lowered if: (1) The offended party is voluntarily released within three days from the start of illegal detention; (2) Without attaining the intended purpose; AND (3) Before the institution of the criminal action.
with Forcible Abduction with Rape
Lewd design came At the outset, there is after the intent to already lewd design kidnap the victim It is a special It is a complex crime complex crime. under RPC 48 since forcible abduction is a necessary means of committing the crime of rape. It there is an attempted rape, it shall be considered as a separate crime.
If there are multiple rapes, there is only one special complex crime of Kidnapping with Rape.
ARTICLE 268 DETENTION
The prevailing rule now is Asistio v. Judge, which provides that voluntary release will only mitigate criminal liability if crime was slight illegal detention. If serious, it has no effect.
If there is an attempted rape, the crime committed is only forcible abduction, the former being an expression of a lewd design.
The liability of one who furnishes the place where the offended party is being held captive is that of a principal and not of an accomplice.
ARTICLE 269 - UNLAWFUL ARREST Elements (a) Offender arrests or detains another person; (b) The purpose of the offender is to deliver him to the proper authorities; (c) The arrest or detention is not authorized by law or there is no reasonable ground therefor.
If there are multiple rapes, only one is complexed with forcible abduction and the rest shall be considered as separate crimes.
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SLIGHT
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ILLEGAL
This felony consists in making an arrest or detention without legal or reasonable ground for the purpose of delivering the offended party to the proper authorities.
Elements: (a) Offender is a private individual; (b) He kidnaps or detains another, or in any other manner deprives him of his liberty. (c) The act of kidnapping or detention is illegal; (d) The crime is committed without the attendance of any of the circumstances enumerated in Article 267.
Generally, this crime is committed by incriminating innocent persons by the offender’s planting evidence to justify the arrest – a complex crime results, that is, unlawful arrest through incriminatory machinations under Article 363. 279
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If the arrest is made without a warrant and under circumstances not allowing a warrantless arrest, the crime would be unlawful arrest.
If any of the foregoing elements is absent, the kidnapping of the minor will then fall under Article 267.
If the person arrested is not delivered to the authorities, the private individual making the arrest incurs criminal liability for illegal detention under Article 267 or 268.
The essential element which qualifies the crime of kidnapping a minor under Art. 270 is that the offender is entrusted with the custody of the minor.
If the offender is a public officer, the crime is arbitrary detention under Article 124.
If the accused is any of the parents, Article 267 does not apply; Articles 270 and 271 will then apply.
If the detention or arrest is for a legal ground, but the public officer delays delivery of the person arrested to the proper judicial authorities, then Article 125 will apply.
If the taking is with the consent of the parents, the crime in Article 270 is committed. What is punished is the deliberate failure of the custodian of the minor to restore the latter to his parents or guardians.
Note: This felony may also be committed by public officers.
The deliberate failure to return a minor under one’s custody constitutes deprivation of liberty. Kidnapping and failure to return a minor is necessarily included in kidnapping and serious illegal detention of a minor under Article 267(4). [People v. Generosa]
Unlawful Arrest vs. Delay in the Delivery of Detained Persons DELAY IN THE DELIVERY UNLAWFUL OF DETAINED PERSONS ARREST (Art. 269) (Art. 125) Detention is for some legal Detention is not ground. authorized by law. Crime is committed by failing to deliver such person to the proper judicial authority within a certain period.
Where a minor child was taken by the accused without the knowledge and consent of his parents, the crime is kidnapping and serious illegal detention under Article 267, not kidnapping and failure to return a minor under Article 270. [People v. Mendoza]
Committed by making an arrest not authorized by law
ARTICLE 270 - KIDNAPPING FAILURE TO RETURN A MINOR
Art. 270 distinguished from Art. 267
AND
Art. 270
Art. 267
Offender is The offender is not entrusted with the entrusted with the custody custody of the of the minor. minor
Elements: (a) Offender is entrusted with the custody of a minor person (whether over or under seven years but less than 18 years of age) (b) He deliberately fails to restore the said minor to his parents or guardians
What is punished is What is punished is the the illegal deliberate failure of the 280
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detaining or offender having custody of kidnapping of the the minor to restore him to minor his parents or guardians
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The penalty is increased if the purpose of the offender is to assign the offended party to some immoral traffic.
ARTICLE 271 - INDUCING A MINOR TO ABANDON HIS HOME
If the purpose of the kidnapping or detention is to enslave the offended party, slavery is committed.
Elements: (a) A minor (whether over or under seven years of age) is living in the home of his parents or guardians or the person entrusted with his custody; (b) Offender induces said minor to abandon such home.
The crime is slavery if the offender is not engaged in the business of prostitution. If he is, the crime is white slave trade under Article 341.
Inducement must be (a) actual, and (b) committed with criminal intent.
The employment or custody of a minor with the consent of the parent or guardian, although against the child’s own will, cannot be considered involuntary servitude.
The minor should not leave his home of his own free will. What constitutes the crime is the act of inducing a minor to abandon the home of his guardian, and it is not necessary that the minor actually abandons the home.
But where it is proven that the defendant was obliged to render service in plaintiff’s house as a servant without remuneration whatever and to remain there so long as she has not paid her debt, there is slavery.
Father or mother may commit the crimes in Art. 170 and 171 where they are living separately and the custody of the minor children is given to one of them.
See Special Law: RA 9208 (Anti-Trafficking of Person Act of 2003)
ARTICLE 273 - EXPLOITATION OF CHILD LABOR
The law is intended to discourage and prevent disruption of filial relationships and undue interference with the parents’ right and duty to the custody of their minor children and to rear them.
Elements: (a) Offender retains a minor in his services; (b) It is against the will of the minor; (c) It is under the pretext of reimbursing himself of a debt incurred by an ascendant, guardian or person entrusted with the custody of such minor.
ARTICLE 272 - SLAVERY Elements: (a) Offender purchases, sells, kidnaps or detains a human being; (b) The purpose of the offender is to enslave such human being.
The existence of indebtedness constitutes no legal justification for holding a person and depriving him of his freedom to live where he wills.
This is committed if anyone shall purchase, kidnap, or detain a human being for the purpose of enslaving him. 281
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ARTICLE 274 - SERVICES RENDERED UNDER COMPULSION IN PAYMENT OF DEBT
himself, unless such omission shall constitute a more serious offense. Elements: (1) The place is not inhabited; (2) Accused found there a person wounded or in danger of dying; (3) Accused can render assistance without detriment to himself; (4) Accused fails to render assistance.
Elements: (a) Offender compels a debtor to work for him, either as a household servant or farm laborer; (b) It is against the debtor’s will; (c) The purpose is to require or enforce the payment of a debt.
MODE 2: accidentally wound another Failing to help or render assistance to another whom the offender has accidentally wounded or injured;
Service under Compulsion distinguished from Exploitation of Child Labor Service under Compulsion
Exploitation of Child Labor
Does not distinguish whether or not the victim is a minor
Victim must be a minor
The debtor himself is the one compelled to work for the offender
The minor is compelled to render services for the supposed debt of his parents or guardian
Limited to household work or farm labor
Service is not limited
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CRIMES
II:
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MODE 3: abandoning a child < 7 By failing to deliver a child, under seven years of age, whom the offender has found abandoned, to the authorities or to his family, or by failing to deliver him to a safe place. Does not apply: When a person intentionally wounds another and leaves him in an uninhabited place. Immaterial: That the offender did not know that the child is under seven years. The child under seven years of age must be found by the accused in an unsafe place.
AGAINST
ARTICLE 276 - ABANDONING A MINOR
ARTICLE 275 - ABANDONMENT OF PERSONS IN DANGER AND ABANDONMENT OF OWN VICTIM
Elements: (a) Offender has the custody of a child; (b) The child is under seven years of age; (c) He abandons such child; (d) He has no intent to kill the child when the latter is abandoned.
Mode 1: W/O detriment to self Failing to render assistance to any person whom the offender finds in an uninhabited place, wounded or in danger of dying when he can render such assistance without detriment to
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Circumstance
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(b) He delivers said minor to a public institution or other persons; (c) The one who entrusted such child to the offender has not consented to such act; or if the one who entrusted such child to the offender is absent, the proper authorities have not consented to it.
s qualifying the offense: (1) When the death of the minor resulted from such abandonment; or (2) If the life of the minor was in danger because of the abandonment. The purpose in abandoning the minor under his custody is to avoid the obligation of taking care of said minor.
MODE 2: neglecting education Neglecting his (offender’s) children by not giving them the education which their station in life requires and financial condition permits.
A permanent, conscious and deliberate abandonment is required in this article. There must be an interruption of the care and protection the minor needs by reason of his age.
Elements: (a) Offender is a parent; (b) He neglects his children by not giving them education; (c) His station in life requires such education and his financial condition permits it.
Intent to kill cannot be presumed from the death of the child. When there is intent to kill, this article does not apply.
Obligation to educate children terminates if the mother and children refuse without good reason to live with the accused.
The ruling that the intent to kill is presumed from the death of the victim of the crime is applicable only to crimes against persons, and not to crimes against security, particularly the crime of abandoning a minor under Art. 276.
Failure to give education must be due to deliberate desire to evade such obligation. If the parents cannot give education because they had no means to do so, then they will not be liable under this article.
If the offender is the parent of the minor who is abandoned, he shall be deprived of parental authority. (Civil Code, Art. 332)
ARTICLE MINORS
ARTICLE 277 - ABANDONMENT OF MINOR BY PERSON ENTRUSTED WITH CUSTODY; INDIFFERENCE OF PARENTS
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EXPLOITATION
OF
Mode 1: Physical strength/contortion Causing any boy or girl under 16 years of age to perform any dangerous feat of balancing, physical strength or contortion, the offender being any person;
MODE 1: W/O consent of guardian Delivering a minor to a public institution or other persons without the consent of the one who entrusted such minor to the care of the offender or, in the absence of that one, without the consent of the proper authorities;
Mode 2: exhibition/acrobat/circus Employing children under 16 years of age who are not the children or descendants of the offender in exhibitions of acrobat, gymnast, rope-walker, diver, or wild-animal tamer, the offender being an acrobat, etc., or circus manager or engaged in a similar calling;
Elements: (a) Offender has charge of the rearing or education of a minor;
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Mode 3: descendant employed like 2 Employing any descendant under 12 years of age in dangerous exhibitions enumerated in the next preceding paragraph, the offender being engaged in any of the said callings;
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Age: Must be below 16 years. Article 278 has no application if minor is 16 years old and above, but the exploitation will be dealt with by RA 7610. If the employer is an ascendant, the crime is not committed, unless the minor is less than 12 years old.
Mode 4: delivering child under 16 to be employed like 2 Delivering a child under 16 years of age gratuitously to any person following any of the callings enumerated in mode 2, or to any habitual vagrant or beggar, the offender being an ascendant, guardian, teacher or person entrusted in any capacity with the care of such child;
If the minor so employed would suffer some injuries as a result of a violation of Article 278, Article 279 provides that there would be additional criminal liability for the resulting felony. EXPLOITATION OF MINORS INDUCING A (RPC 278, PAR. 5) MINOR TO ABANDON HIS HOME (RPC 271)
Mode 5: inducing child under 16 to abandon home to be employed like 2 Inducing any child under 16 years of age to abandon the home of its ascendants, guardians, curators or teachers to follow any person engaged in any of the callings mentioned in paragraph 2 or to accompany any habitual vagrant or beggar, the offender being any person.
Purpose of inducing the No such purpose minor to abandon his home is to follow any person engaged in any of the callings mentioned Victim is under 16 years of Victim is a minor age (below 18 years of age)
Circumstance qualifying the offense: (1) If the delivery of the child to any person following any of the calling of acrobat, gymnast, rope-walker, diver, wild-animal tamer or circus manager or to any habitual vagrant or beggar is made in consideration of any price, compensation or promise. (2) The offender is engaged in a kind of business that would place the life or limb of the minor in danger, even though working for him is not against the will of the minor.
ARTICLE 280 - QUALIFIED TRESPASS TO DWELLING Elements (a) Offender is a private person; (b) He enters the dwelling of another; (c) Such entrance is against the latter’s will. Qualifying circumstance: The offense is committed by means of violence or intimidation.
Nature of the Business: this involves circuses which generally attract children so they themselves may enjoy working there unaware of the danger to their own lives and limbs. 284
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DWELLING – This is the place that a person inhabits. It includes the dependencies which have interior communication with the house.
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time and not necessarily at the time of the entrance. To prove that an entry is against the will of the occupant, it is not necessary that the entry should be preceded by an express prohibition, provided that the opposition of the occupant is clearly established by the circumstances under which the entry is made, such as the existence of enmity or strained relations between the accused and the occupant.
It is not necessary that it be the permanent dwelling of the person; hence, a person’s room in a hotel may be considered a dwelling. It also includes a room where one resides as a boarder. If the purpose in entering the dwelling is not shown, trespass is committed. If the purpose is shown, it may be absorbed in the crime as in robbery with force upon things, the trespass yielding to the more serious crime.
If the offender is public officer, the crime is violation of domicile.
If the purpose is not shown and while inside the dwelling he was found by the occupants, one whom he subsequently injured if there was a struggle, the crime committed will be trespass to dwelling and frustrated homicide or physical injuries, or if there was no injury, unjust vexation.
Examples of trespass by means of violence: (1) Pushing the door violently and maltreating the occupants after entering. (2) Cutting of a ribbon or string with which the door latch of a closed room was fastened. The cutting of the fastenings of the door was an act of violence. (3) Wounding by means of a bolo, the owner of the house immediately after entrance
If the entry is made by a way not intended for entry, it is presumed to be against the will of the occupant (example, entry through a window). It is not necessary that there be a breaking.
Examples of trespass by means of intimidation: (1) Firing a revolver in the air by persons attempting to force their way into a house. (2) The flourishing of a bolo against inmates of the house upon gaining an entrance
“Against the will” – This means that the entrance is, either expressly or impliedly, prohibited or the prohibition is presumed. It is a well-settled rule that whoever enters the dwelling of another at late hour of the night after the inmates have retired and closed their doors does so against their will. Prohibition is presumed. [US v Mesina; US v Panes]
In the prosecution for trespass, the material fact or circumstance to be considered is the occurrence of the trespass. The gravamen of the crime is violation of possession or the fact of having caused injury to the right of the possession. [Marzalado v. People]
Prohibition must be in existence prior to or at the time of entrance, but prohibition is not necessary when violence or intimidation is employed by the offender (qualified trespass).
If a person was killed after trespass by the offender, the following crimes are committed: o If there was no intent to kill when he entered – separate crimes of homicide or murder qualified by trespass to dwelling
Fraudulent entrance may constitute trespass. The prohibition to enter may be made at any 285
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If there was intent to kill when he entered – the crime of homicide/murder with dwelling as an aggravating circumstance
Qualified Trespass vs. Other Forms of Trespass QUALIFIED TRESPASS DWELLING (ART. 280)
Trespass may be committed by the owner of a dwelling (i.e. lessor enters the house leased to another against the latter’s will).
OTHER
FORMS
OTHER FORMS TRESPASS (ART. 281)
OF
Offender enters a Offender enters closed dwelling premises or fenced estate Place entered inhabited
is Place entered uninhabited
Act constituting the crime is entering the dwelling against the will of the owner
is
It is the entering the closed premises or the fenced estate without securing the permission of the owner or caretaker thereof
Prohibition to enter Prohibition to enter must is express or implied be manifest
Note: A person who believes that a crime has been committed against him has every right to go after the culprit and arrest him without any warrant even if in the process he enters the house of another against the latter’s will. [Sec. 6, Rule 113, Rules of Court]
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TO
Offender is a private The offender is any person person
Cases to which the provision of this article is NOT applicable: (1) If the entrance to another’s dwelling is made for the purpose of preventing some serious harm to himself, the occupants of the dwelling, or a third person. (2) If the purpose is to render some service to humanity or justice. (3) If the place where entrance is made is a café, tavern, inn, and other public house, while the same are open.
ARTICLE 281 TRESPASS
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ARTICLE 282 - GRAVE THREATS Mode 1: threatening, even not unlawful Threatening another with the infliction upon his person, honor or property or that of this family of any wrong amounting to a crime and demanding money or imposing any other condition, even though not unlawful, and the offender attained his purpose;
OF
Elements: (a) Offender enters the closed premises or the fenced estate of another; (b) The entrance is made while either of them is uninhabited; (c) The prohibition to enter is manifest; (d) The trespasser has not secured the permission of the owner or the caretaker thereof.
Elements: (a) Offender threatens another person with the infliction upon the latter’s person, honor or property, or upon that of the latter’s family, of any wrong. (b) Such wrong amounts to a crime. (c) There is a demand for money or that any other condition is imposed, even though not unlawful. (d) Offender attains his purpose.
Premises – signifies distinct and definite locality. It may mean a room, shop, building or definite area, but in either case, locality is fixed.
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Mode 2: threat w/o attaining purpose Making such threat without the offender attaining his purpose;
spot, the crime intimidation.
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be
robbery
with
The penalties for the first two types of grave threats depend upon the penalties for the crimes threatened to be committed. One degree lower if the purpose is attained, and two degrees lower if the purpose is not attained.
Mode 3: threat = crime Threatening another with the infliction upon his person, honor or property or that of his family of any wrong amounting to a crime, the threat not being subject to a condition.
If the threat is not subject to a condition, the penalty is fixed at arresto mayor and a fine not exceeding 500 pesos.
Elements: (a) Offender threatens another person with the infliction upon the latter’s person, honor or property, or upon that of the latter’s family, of any wrong. (b) Such wrong amounts to a crime. (c) Threat is not subject to a condition.
In the first two types, if the threat is made in writing or through a middleman, the penalty is to be imposed in its maximum period.
Qualifying Circumstance: If threat was made (1) in writing OR (2) through a middleman.
The third type of grave threats must be serious and deliberate; the offender must persist in the idea involved in his threats. The threat should not be made in the heat of anger, because such is punished under Article 285. If the condition is not proved, it is grave threats of the third type.
It is essential that there be intimidation.
ARTICLE 283 - LIGHT THREATS
As the crime consists in threatening another with some future harm, it is not necessary that the offended party was present at the time the threats were made. It is sufficient that the threats came to the knowledge of the offended party. When consummated: As soon as the threats came to the knowledge of the offended party.
Elements: (a) Offender makes a threat to commit a wrong; (b) The wrong does not constitute a crime; (c) There is a demand for money or that other condition is imposed, even though not unlawful; (d) Offender has attained his purpose or, that he has not attained his purpose.
Threats made in connection with the commission of other crimes are absorbed by the latter.
The harm threatened must not be in the nature of crime and there is a demand for money or any other condition is imposed, even though lawful.
The offender in grave threats does not demand the delivery on the spot of the money or other personal property demanded by him. When threats are made and money is taken on the
Blackmailing may be punished under this article.
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GRAVE THREATS
Mode 2: oral threat = crime, in anger Orally threatening another, in the heat of anger, with some harm constituting a crime, without persisting in the idea involved in his threat;
LIGHT THREATS
Act threatened Act threatened does not amounts to a crime amount to a crime
ARTICLE 284 BEHAVIOR
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BOND
FOR
GOOD
When a person is required to give bail bond: (1) When he threatens another under circumstances mentioned in Art. (Grave Threats). (2) When he threatens another under circumstances mentioned in Art. (Light Threats).
Mode 3: oral threat = not felony Orally threatening to do another any harm not constituting a felony.
the 282
Under the first type, the subsequent acts of the offender must show that he did not persist in the idea involved in the threat.
the 283
Threats which are ordinarily grave threats, if made in the heat of anger, may be other light threats.
Bond for Good Behavior distinguished from Bond to Keep the Peace
If the threats are directed to a person who is absent and uttered in a temporary fit of anger, the offense is only other light threats.
Bond for Good Bond to Keep the Peace Behavior
OTHER LIGHT GRAVE THREATS AND LIGHT THREATS THREATS
Applicable only Not made applicable to any to grave threats particular case and light threats If offender fails to give bail, he shall be sentenced to destierro
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No demand for In certain cases, demand for money money is material
If the offender fails to give bond, he shall be detained for a period not exceeding 6 months (if prosecuted for grave/less grave felony) or not exceeding 30 days (light felony)
No condition In certain cases, imposed imposed condition is material. Threat is deliberate
NOT a distinct A distinct penalty penalty
not Threat is deliberate
ARTICLE 286 - GRAVE COERCIONS Mode 1: preventing w/violence, something not prohibited by law Preventing another, by means of violence, threats or intimidation, from doing something not prohibited by law;
ARTICLE 285 – OTHER LIGHT THREATS Mode 1: threat w/weapon in a quarrel Threatening another with a weapon, or by drawing such weapon in a quarrel, unless it be in lawful self-defense;
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Mode 2: compelling another to do something vs. will Compelling another, by means of violence, threats or intimidation, to do something against his will, whether it be right or wrong.
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In case of grave coercion where the offended party is being compelled to do something against his will, whether it be wrong or not, the crime of grave coercion is committed if violence or intimidation is employed in order to compel him to do the act.
Elements: (a) A person prevented another from doing something not prohibited by law, or that he compelled him to do something against his will; be it right or wrong; (b) The prevention or compulsion be effected by violence, threats or intimidation; and (c) The person that restrained the will and liberty of another had not the authority of law or the right to do so, or in other words, that the restraint shall not be made under authority of law or in the exercise of any lawful right.
A public officer who shall prevent by means of violence or threats the ceremonies or manifestations of any religion is guilty of interruption of religious worship (Art. 132). Any person who, by force, prevents the meeting of a legislative body is liable under Art. 143. Any person who shall use force or intimidation to prevent any member of Congress from attending the meetings thereof, expressing his opinions, or casting his vote is liable under Art. 145.
Two ways of committing Grave Coercion: (1) Preventive – Preventing another, by means of violence, threats, or intimidation, from doing something not prohibited by law (2) Compulsive – Compelling another, by means of violence, threats, or intimidation, to do something against his will, whether it be right or wrong
The crime is not grave coercion when the violence is employed to seize anything belonging to the debtor of the offender. It is light coercion under Art. 287. Coercion is consummated even if the offended party did not accede to the purpose of coercion. The owner of a thing has no right to prohibit the interference of another with the same, if the interference is necessary to avert an imminent danger and the threatened damage, compared to the damage arising to the owner from the interference, is much greater. (Art. 432, Civil Code)
Purpose of the Law: To enforce the principle that no person may take the law into his hands, and that our government is one of law, not of men. Arises only if the act which the offender prevented another to do is not prohibited by law or ordinance.
Neither the crime of threats nor coercion is committed although the accused, a branch manager of a bank made the complainant sign a withdrawal slip for the amount needed to pay the spurious dollar check she had encashed, and also made her execute an affidavit regarding the return of the amount against her
If a person prohibits another to do an act because the act is a crime, even though some sort of violence or intimidation is employed, it would not give rise to grave coercion. It may only give rise to threat or physical injuries, if some injuries are inflicted. 289
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better sense and judgment. The complainant may have acted reluctantly and with hesitation, but still, it was voluntary. [Lee v. CA]
victim or his family
ARTICLE 288 COERCIONS
ARTICLE 287 - LIGHT COERCIONS
OTHER
SIMILAR
Elements: (a) Offender is any person, agent or officer of any association or corporation; (b) He or such firm or corporation has employed laborers or employees; (c) He forces or compels, directly or indirectly, or knowingly permits to be forced or compelled, any of his or its laborers or employees to purchase merchandise or commodities of any kind from him or from said firm or corporation.
Deals with light coercions wherein violence is employed by the offender who is a creditor in seizing anything belonging to his debtor for the purpose of applying the same to the payment of the debt. Unjust Vexation Any act committed without violence, but which unjustifiably annoys or vexes an innocent person amounts to light coercion. It should include any human conduct which, although not productive of some physical or material harm would, however, unjustifiably annoy or vex an innocent person.
Mode 2: wages paid by token or obj Paying the wages due his laborer or employee by means of tokens or object other than the legal tender currency of the Philippines, unless expressly requested by such laborer or employee.
Unjust Vexation is distinguished from grave coercion by the absence of violence.
Intimidation essential
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Mode 1: force/compel to buy commodities from him Forcing or compelling, directly or indirectly, or knowingly permitting the forcing or compelling of the laborer or employee of the offender to purchase merchandise of commodities of any kind from him;
Elements: (a) Offender must be a creditor; (b) He seizes anything belonging to his debtor: (c) The seizure of the thing be accomplished by means of violence or a display of material force producing intimidation; (d) The purpose of the offender is to apply the same to the payment of the debt.
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Elements: (a) Offender pays the wages due a laborer or employee employed by him by means of tokens or object; (b) Those tokens or objects are other than the legal tender currency of the Philippines; (c) Such employee or laborer does not expressly request that he be paid by means of tokens or objects.
COERCION is Intimidation or violence is the essence of the crime
Intimidation is future Force or violence must and conditional be imminent, actual, and immediate
General rule: wages shall be paid in legal tender and the use of tokens, promissory notes, vouchers, coupons or any other forms alleged to
Intimidation is Intimidation is directed directed against the against the victim only 290
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represent legal tender is absolutely prohibited even when expressly requested by the employee. (Section 1, Rule VIII, Book III, Omnibus Rules Implementing the Labor Code)
(d) Offender is informed of the contents of the papers or letters seized. This is a crime against the security of one’s papers and effects. The purpose must be to discover its effects. The act violates the privacy of communication.
No employer shall limit or otherwise interfere with the freedom of any employee to dispose of his wages. He shall not in any manner force, compel, oblige his employees to purchase merchandise, commodities or other property from the employer or from any other person. (Art. 112, Labor Code.)
According to Dean Ortega, it is not necessary that the offender should actually discover the contents of the letter. Reyes, citing People v. Singh, CA, 40 OG, Suppl. 5, 35, believes otherwise.
ARTICLE 289 FORMATION, MAINTENANCE, AND PROHIBITION OF COMBINATION OF CAPITAL OR LABOR THROUGH VIOLENCE OR THREATS
The last paragraph of Article 290 expressly makes the provision of the first and second paragraph thereof inapplicable to parents, guardians, or persons entrusted with the custody of minors placed under their care or custody, and to the spouses with respect to the papers or letters of either of them.
Elements: (a) Offender employs violence or threats, in such a degree as to compel or force the laborers or employers in the free and legal exercise of their industry or work; (b) The purpose is to organize, maintain or prevent coalitions of capital or labor, strike of laborers or lockout of employers.
The teachers or other persons entrusted with the care and education of minors are included in the exceptions. Distinction from estafa, damage to property, and unjust vexation: (1) If the act had been executed with intent to gain, it would be estafa; (2) If, on the other hand, the purpose was not to defraud, but only to cause damage to another, it would merit the qualification of damage to property; (3) If the intention was merely to cause vexation preventing another to do something which the law does not prohibit or compel him to execute what he does not want, the act should be considered as unjust vexation.
Repealed by the Labor Code.
CHAPTER III: DISCOVERY REVELATION OF SECRETS
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ARTICLE 290 - DISCOVERING SECRETS THROUGH SEIZURE OF CORRESPONDENCE Elements: (a) Offender is a private individual or even a public officer not in the exercise of his official function; (b) He seizes the papers or letters of another; (c) The purpose is to discover the secrets of such another person;
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ARTICLE 291 - REVEALING SECRETS WITH ABUSE OF OFFICE
The revelation of the secret might be made after the employee or workman had ceased to be connected with the establishment.
Elements: (a) Offender is a manager, employee or servant; (b) He learns the secrets of his principal or master in such capacity; (c) He reveals such secrets.
Prejudice is an element of the offense.
SPECIAL LAWS RA 4200 (ANTI WIRE TAPPING ACT) Punishable Acts It shall be unlawful for: (1) Any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dictaphone or walkie-talkie or tape recorder, or however otherwise described: (2) Any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition.
An employee, manager, or servant who came to know of the secret of his master or principal in such capacity and reveals the same shall also be liable regardless of whether or not the principal or master suffered damages. Essence of this crime is that the offender learned of the secret in the course of his employment. He is enjoying a confidential relation with the employer or master so he should respect the privacy of matters personal to the latter. Reason: no one has a right to the personal privacy of another.
ARTICLE 292 - REVELATION INDUSTRIAL SECRETS
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Elements: (a) Offender is a person in charge, employee or workman of a manufacturing or industrial establishment; (b) The manufacturing or industrial establishment has a secret of the industry which the offender has learned; (c) Offender reveals such secrets; (d) Prejudice is caused to the owner. Secrets must relate to manufacturing processes.
Section 2. Any person who willfully or knowingly does or who shall aid, permit, or cause to be done any of the acts declared to be unlawful in the preceding section or who violates the
The act constituting the crime is revealing the secret of the industry which the offender has learned. 292
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provisions of the following section or of any order issued thereunder, or aids, permits, or causes such violation shall, upon conviction thereof, be punished by imprisonment for not less than six months or more than six years and with the accessory penalty of perpetual absolute disqualification from public office if the offender be a public official at the time of the commission of the offense, and, if the offender is an alien he shall be subject to deportation proceedings.
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(2) that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any of such crimes; and (3) that there are no other means readily available for obtaining such evidence.
RA 9327 (HUMAN SECURITY ACT) Surveillance of Suspects and Interception and Recording of Communications SEC. 7. The provisions of RA 4200 (Anti-wire Tapping Law) to the contrary notwithstanding, a police or law enforcement official and the members of his team may, upon a written order of the Court of Appeals, listen to, intercept and record, with the use of any mode, form, kind or type of electronic or other surveillance equipment or intercepting and tracking devices, or with the use of any other suitable ways and means for that purpose, any communication, message, conversation, discussion, or spoken or written words between members of a judicially declared and outlawed terrorist organization, association, or group of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism.
Exceptions: Any peace officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful in the two preceding sections in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the RPC, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security: Provided, That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and a showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed;
Provided, That surveillance, interception and recording of communications between lawyers and clients, doctors and patients, journalists and their sources and confidential business correspondence shall not be authorized. SEC. 8. Formal Application for Judicial Authorization. - The written order of the authorizing division of the Court of Appeals to track down, tap, listen to, intercept, and record communications, messages, conversations, discussions, or spoken or written words of any person suspected of the crime of terrorism or the crime of conspiracy to commit terrorism shall only be granted by the authorizing division of the Court of Appeals upon an ex parte written 293
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application of a police or of a law enforcement official who has been duly authorized in writing by the Anti-Terrorism Council created in Section 53 of this Act to file such ex parte application, and upon examination under oath or affirmation of the applicant and the witnesses he may produce to establish: (a) that there is probable cause to believe based on personal knowledge of facts or circumstances that the said crime of terrorism or conspiracy to commit terrorism has been committed, or is being committed, or is about to be committed; (b) that there is probable cause to believe based on personal knowledge of facts or circumstances that evidence, which is essential to the conviction of any charged or suspected person for, or to the solution or prevention of, any such crimes, will be obtained; and, (c) that there is no other effective means readily available for acquiring such evidence.
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whose communications, messages, conversations, discussions, or spoken or written words are to be tracked down, tapped, listened to, intercepted, and recorded and, in the case of radio, electronic, or telephonic (whether wireless or otherwise) communications, messages, conversations, discussions, or spoken or written words, the electronic transmission systems or the telephone numbers to be tracked down, tapped, listened to, intercepted, and recorded and their locations or if the person suspected of the crime of terrorism or conspiracy to commit terrorism is not fully known, such person shall be subject to continuous surveillance provided there is a reasonable ground to do so; (b) the identity (name, address, and the police or law enforcement organization) of the police or of the law enforcement official, including the individual identity (names, addresses, and the police or law enforcement organization) of the members of his team, judicially authorized to track down, tap, listen to, intercept, and record the communications, messages, conversations, discussions, or spoken or written words; (c) the offense or offenses committed, or being committed, or sought to be prevented; and, (d) the length of time within which the authorization shall be used or carried out.
SEC. 9. Classification and Contents of the Order of the Court. - The written order granted by the authorizing division of the Court of Appeals as well as its order, if any, to extend or renew the same, the original application of the applicant, including his application to extend or renew, if any, and the written authorizations of the AntiTerrorism Council shall be deemed and are hereby declared as classified information: Provided, That the person being surveilled or whose communications, letters, papers, messages, conversations. Discussions, spoken or written words and effects have been monitored, listened to, bugged or recorded by law enforcement authorities has the right to be informed of the acts done by the law enforcement authorities in the premises or to challenge, if he or she intends to do so, the legality of the interference before the Court of Appeals which issued the written order. The written order of the authorizing division of the Court of Appeals shall specify the following: (a) the identity, such as name and address, if known, of the charged or suspected person
SEC. 10. Effective Period of Judicial Authorization. - Only for the length of time specified in the written order of the authorizing division of the Court of Appeals, which shall not exceed a period of thirty (30) days from the date of receipt of the written order of the authorizing division of the CA by the applicant police or law enforcement official. The authorizing division of the CA may extend or renew the said authorization for another nonextendible period, which shall not exceed 30 days from the expiration of the original period: Provided, That the authorizing division of the CA is satisfied that such extension or renewal is 294
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in the public interest: and Provided, further, That the ex parte application for extension or renewal, which must be filed by the original applicant, has been duly authorized in writing by the Anti-Terrorism Council.
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fixed in the written order of the authorizing division of the CA or within forty-eight (48) hours after the expiration of any extension or renewal granted by the authorizing division of the Court of Appeals, be deposited with the authorizing Division of the CA in a sealed envelope or sealed package, as the case may be, and shall be accompanied by a joint affidavit of the applicant police or law enforcement official and the members of his team.
In case of death of the original applicant or in case he is physically disabled to file the application for extension or renewal, the one next in rank to the original applicant among the members of the team named in the original written order of the authorizing division of the CA shall file the application for extension or renewal: Provided, That, without prejudice to the liability of the police or law enforcement personnel under Section 20 hereof, the applicant police or law enforcement official shall have thirty (30) days after the termination of the period granted by the Court of Appeals as provided in the preceding paragraphs within which to file the appropriate case before the Public Prosecutor’s Office for any violation of this Act.
In case of death of the applicant or in case he is physically disabled to execute the required affidavit, the one next in rank to the applicant among the members of the team named in the written order of the authorizing division of the CA shall execute with the members of the team that required affidavit. It shall be unlawful for any person, police officer or any custodian of the tapes, discs and recording, and their excerpts and summaries, written notes or memoranda to copy in whatever form, to remove, delete, expunge, incinerate, shred or destroy in any manner the items enumerated above in whole or in part under any pretext whatsoever.
If no case is filed within the thirty (30)-day period, the applicant police or law enforcement official shall immediately notify the person subject of the surveillance, interception and recording of the termination of the said surveillance, interception and recording. The penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon the applicant police or law enforcement official who fails to notify the person subject of the surveillance, monitoring, interception and recording as specified above.
Any person who removes, deletes, expunges incinerates, shreds or destroys the items enumerated above shall suffer a penalty of not less than six (6) years and one day to twelve (12) years of imprisonment. SEC. 12. Contents of Joint Affidavit. - The joint affidavit of the police or of the law enforcement official and the individual members of his team shall state: (a) the number of tapes, discs, and recordings that have been made, as well as the number of excerpts and summaries thereof and the number of written notes and memoranda, if any, made in connection therewith; (b) the dates and times covered by each of such tapes, discs, and recordings; (c) the number of tapes, discs, and recordings, as well as the number of
SEC. 11. Custody of Intercepted and Recorded Communications. - All tapes, discs, and recordings made pursuant to the authorization of the authorizing division of the CA, including all excerpts and summaries thereof as well as all written notes or memoranda made in connection therewith, shall, within forty-eight (48) hours after the expiration of the period 295
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excerpts and summaries thereof and the number of written notes and memoranda made in connection therewith that have been included in the deposit; and (d) the date of the original written authorization granted by the AntiTerrorism Council to the applicant to file the ex parte application to conduct the tracking down, tapping, intercepting, and recording, as well as the date of any extension or renewal of the original written authority granted by the authorizing division of the Court of Appeals.
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connection therewith) shall not be divulged, revealed, read, replayed, or used as evidence unless authorized by written order of the authorizing division of the Court of Appeals, which written order shall be granted only upon a written application of the Department of Justice filed before the authorizing division of the Court of Appeals and only upon a showing that the Department of Justice has been duly authorized in writing by the Anti-Terrorism Council to file the application with proper written notice to the person whose conversation, communication, message discussion or spoken or written words have been the subject of surveillance, monitoring, recording and interception to open, reveal, divulge, and use the contents of the sealed envelope or sealed package as evidence.
The joint affidavit shall also certify under oath that no duplicates or copies of the whole or any part of any of such tapes, discs, and recordings, and that no duplicates or copies of the whole or any part of any of such excerpts, summaries, written notes, and memoranda, have been made, or, if made, that all such duplicates and copies are included in the sealed envelope or sealed package, as the case may be, deposited with the authorizing division of the Court of Appeals.
Any person, law enforcement official or judicial authority who violates his duty to notify in writing the persons subject of the surveillance as defined above shall suffer the penalty of six (6) years and one day to eight (8) years of imprisonment.
It shall be unlawful for any person, police or law enforcement official to omit or exclude from the joint affidavit any item or portion thereof mentioned in this Section.
SEC. 14. Application to Open Deposited Sealed Envelop or Sealed Package. - The written application with notice to the party concerned to open the deposited sealed envelope or sealed package shall clearly state the purpose or reason: (a) for opening the sealed envelope or sealed package; (b) for revealing or disclosing its classified contents; (c) for replaying, divulging, and or reading any of the listened to, intercepted, and recorded communications, messages, conversations, discussions, or spoken or written words (including any of the excerpts and summaries thereof and any of the notes or memoranda made in connection therewith); and, (d) for using any of said listened to, intercepted, and recorded communications, messages, conversations, discussions, or spoken or written words (including any of the excerpts and summaries
Any person, police or law enforcement officer who violates any of the acts proscribed in the preceding paragraph shall suffer the penalty of not less than ten (10) years and one day to twelve (12) years of imprisonment. SEC. 13. Disposition of Deposited Materials. - The sealed envelope or sealed package and the contents thereof, which are deposited with the authorizing division of the Court of Appeals, shall be deemed and are hereby declared classified information, and the sealed envelope or sealed package shall not be opened and its contents (including the tapes, discs, and recordings and all the excerpts and summaries thereof and the notes and memoranda made in 296
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thereof and any of the notes or memoranda made in connection therewith) as evidence.
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authority from the Court of Appeals to track down, tap, listen to, intercept, and record in whatever manner or form any communication, message, conversation, discussion, or spoken or written words of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism: Provided, That notwithstanding Section 13 of this Act, the party aggrieved by such authorization shall be allowed access to the sealed envelope or sealed package and the contents thereof as evidence for the prosecution of any police or law enforcement personnel who maliciously procured said authorization.
Any person, law enforcement official or judicial authority who violates his duty to notify as defined above shall suffer the penalty of six (6) years and one day to eight (8) years of imprisonment. SEC. 15. Evidentiary Value of Deposited Materials. - Any listened to, intercepted, and recorded communications, messages, conversations, discussions, or spoken or written words, or any part or parts thereof, or any information or fact contained therein, including their existence, content, substance, purport, effect, or meaning, which have been secured in violation of the pertinent provisions of this Act, shall absolutely not be admissible and usable as evidence against anybody in any judicial, quasi-judicial, legislative, or administrative investigation, inquiry, proceeding, or hearing.
Restriction on Travel SEC. 26. Restriction on Travel. – In cases where evidence of guilt is not strong, and the person charged with the crime of terrorism or conspiracy to commit terrorism is entitled to bail and is granted the same, the court, upon application by the prosecutor, shall limit the right of travel of the accused to within the municipality or city where he resides or where the case is pending, in the interest of national security and public safety, consistent with Article III, Section 6 of the Constitution. Travel outside of said municipality or city, without the authorization of the court, shall be deemed a violation of the terms and conditions of his bail, which shall then be forfeited as provided under the Rules of Court.
SEC. 16. Penalty for Unauthorized or malicious Interceptions and/or Recordings. - Any police or law enforcement personnel who, not being authorized to do so by the authorizing division of the Court of Appeals, tracks down, taps, listens to, intercepts, and records in whatever manner or form any communication, message, conversation, discussion, or spoken or written word of a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism shall be guilty of an offense and shall suffer the penalty of ten (10) years and one day to twelve (12) years of imprisonment.
He or she may also be placed under house arrest by order of the court at his or her usual place of residence.
In addition to the liability attaching to the offender for the commission of any other offense, the penalty of ten (10) years and one day to twelve (12) years of imprisonment and the accessory penalty of perpetual absolute disqualification from public office shall be imposed upon any police or law enforcement personnel who maliciously obtained an
While under house arrest, he or she may not use telephones, cellphones, e-mails, computers, the internet or other means of communications with people outside the residence until otherwise ordered by the court.
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The restrictions abovementioned shall be terminated upon the acquittal of the accused or of the dismissal of the case filed against him or earlier upon the discretion of the court on motion of the prosecutor or of the accused.
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accounts, assets, and records: (1) of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, (2) of any judicially declared and outlawed terrorist organization, association, or group of persons, or (3) of any member of such organization, association, or group of persons in a bank or financial institution, and the gathering of any relevant information about the same from said bank or financial institution, shall only be granted by the authorizing division of the Court of Appeals upon an ex parte application to that effect of a police or of a law enforcement official who has been duly authorized in writing to file such ex parte application by the Anti-Terrorism Council created in Section 53 of this Act to file such ex parte application, and upon examination under oath or affirmation of the applicant and the witnesses he may produce to establish the facts that will justify the need and urgency of examining and freezing the bank deposits, placements, trust accounts, assets, and records: (1) of the person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, (2) of a judicially declared and outlawed terrorist organization, association or group of persons, or (3) of any member of such organization, association, or group of persons.
Examination of Bank Deposits and Documents JUDICIAL AUTHORIZATION SEC. 27. Judicial Authorization Required to Examine Bank Deposits, Accounts, and Records. - The provisions of Republic Act No. 1405 as amended, to the contrary notwithstanding, the justices of the Court of Appeals designated as a special court to handle anti-terrorism cases after satisfying themselves of the existence of probable cause in a hearing called for that purpose that (1) a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, (2) of a judicially declared and outlawed terrorist organization, association, or group of persons, and (3) of a member of such judicially declared and outlawed organization, association, or group of persons, may authorize in writing any police or law enforcement officer and the members of his/her team duly authorized in writing by the anti-terrorism council to: (a) examine, or cause the examination of, the deposits, placements, trust accounts, assets and records in a bank or financial institution; and (b) gather or cause the gathering of any relevant information about such deposits, placements, trust accounts, assets, and records from a bank or financial institution. The bank or financial institution concerned shall not refuse to allow such examination or to provide the desired information, when so ordered by and served with the written order of the Court of Appeals.
SEC. 29. Classification and Contents of the Court Order Authorizing the Examination of Bank Deposits, Accounts, and Records. - The written order granted by the authorizing division of the Court of Appeals as well as its order, if any, to extend or renew the same, the original ex parte application of the applicant, including his ex parte application to extend or renew, if any, and the written authorizations of the Anti Terrorism Council, shall be deemed and are hereby declared as classified information: Provided, That the person whose bank deposits, placements, trust accounts, assets, and records have been examined, frozen, sequestered and seized by law enforcement authorities has the
Application SEC. 28. Application to Examine Bank Deposits, Accounts, and Records. - The written order of the Court of Appeals authorizing the examination of bank deposits, placements, trust 298
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right to be informed of the acts done by the law enforcement authorities in the premises or to challenge, if he or she intends to do so, the legality of the interference. The written order of the authorizing division of the Court of Appeals designated to handle cases involving terrorism shall specify: (a) the identity of the said: (1) person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, (2) judicially declared and outlawed terrorist organization, association, or group of persons, and (3) member of such judicially declared and outlawed organization, association, or group of persons, as the case may be, whose deposits, placements, trust accounts, assets, and records are to be examined or the information to be gathered; (b) the identity of the bank or financial institution where such deposits, placements, trust accounts, assets, and records are held and maintained; (c) the identity of the persons who will conduct the said examination and the gathering of the desired information; and, (d) the length of time the authorization shall be carried out.
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(30) days renewable to another thirty (30) days from the expiration of the original period, provided that the authorizing division of the Court of Appeals is satisfied that such extension or renewal is in the public interest, and provided further that the application for extension or renewal, which must be filed by the original applicant, has been duly authorized in writing by the Anti-Terrorism Council. In case of death of the original applicant or in case he is physically disabled to file the application for extension or renewal, the one next in rank to the original applicant among the members of the team named in the original written order of the authorizing division of the Court of Appeals shall file the application for extension or renewal: Provided, That, without prejudice to the liability of the police or law enforcement personnel under Section 19 hereof, the applicant police or law enforcement official shall have thirty (30) days after the termination of the period granted by the Court of Appeals as provided in the preceding paragraphs within which to file the appropriate case before the Public Prosecutor’s Office for any violation of this Act.
SEC. 30. Effective Period of Court Authorization to Examine and Obtain Information on Bank Deposits, Accounts, and Records. - The authorization issued or granted by the authorizing division of the Court of Appeals to examine or cause the examination of and to freeze bank deposits, placements, trust accounts, assets, and records, or to gather information about the same, shall be effective for the length of time specified in the written order of the authorizing division of the Court of Appeals, which shall not exceed a period of thirty (30) days from the date of receipt of the written order of the authorizing division of the Court of Appeals by the applicant police or law enforcement official.
If no case is filed within the thirty (30)-day period, the applicant police or law enforcement official shall immediately notify in writing the person subject of the bank examination and freezing of bank deposits, placements, trust accounts, assets and records. The penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon the applicant police or law enforcement official who fails to notify in writing the person subject of the bank examination and freezing of bank deposits, placements, trust accounts, assets and records. Any person, law enforcement official or judicial authority who violates his duty to notify in writing as defined above shall suffer the penalty
The authorizing division of the Court of Appeals may extend or renew the said authorization for another period, which shall not exceed thirty 299
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of six (6) years and one day to eight (8) years of imprisonment.
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excerpts, summaries, notes, memoranda, working sheets, reports, documents, records examined and placed in the sealed envelope or sealed package deposited with the authorizing division of the Court of Appeals; (f) the date of the original written authorization granted by the Anti-Terrorism Council to the applicant to file the ex parte application to conduct the examination of the said bank deposits, placements, trust accounts, assets and records, as well as the date of any extension or renewal of the original written authorization granted by the authorizing division of the Court of Appeals; and (g) that the items enumerated were all that were found in the bank or financial institution examined at the time of the completion of the examination.
SEC. 31. Custody of Bank Data and Information Obtained after Examination of Deposits, Placements, Trust Accounts, Assets and Records. - All information, data, excerpts, summaries, notes, memoranda, working sheets, reports, and other documents obtained from the examination of the bank deposits, placements, trust accounts, assets and records of: (1) a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism, (2) a judicially declared and outlawed terrorist organization, association, or group of persons, or (3) a member of any such organization, association, or group of persons shall, within forty-eight (48) hours after the expiration of the period fixed in the written order of the authorizing division of the Court of Appeals or within forty-eight (48) hours after the expiration of the extension or renewal granted by the authorizing division of the Court of Appeals, be deposited with the authorizing division of the Court of Appeals in a sealed envelope or sealed package, as the case may be, and shall be accompanied by a joint affidavit of the applicant police or law enforcement official and the persons who actually conducted the examination of said bank deposits, placements, trust accounts, assets and records.
The joint affidavit shall also certify under oath that no duplicates or copies of the information, data, excerpts, summaries, notes, memoranda, working sheets, reports, and documents acquired from the examination of the bank deposits, placements, trust accounts, assets and records have been made, or, if made, that all such duplicates and copies are placed in the sealed envelope or sealed package deposited with the authorizing division of the Court of Appeals. It shall be unlawful for any person, police officer or custodian of the bank data and information obtained after examination of deposits, placements, trust accounts, assets and records to copy, to remove, delete, expunge, incinerate, shred or destroy in any manner the items enumerated above in whole or in part under any pretext whatsoever.
SEC. 32. Contents of Joint Affidavit. - The joint affidavit shall state: (a) the identifying marks, numbers, or symbols of the deposits, placements, trust accounts, assets, and records examined; (b) the identity and address of the bank or financial institution where such deposits, placements, trust accounts, assets, and records are held and maintained; (c) the number of bank deposits, placements, trust accounts, assets, and records discovered, examined, and frozen; (d) the outstanding balances of each of such deposits, placements, trust accounts, assets; (e) all information, data,
Any person who copies, removes, deletes, expunges incinerates, shreds or destroys the items enumerated above shall suffer a penalty of not less than six (6) years and one day to twelve (12) years of imprisonment.
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Unauthorized Revelation of Classified Materials SEC. 46. Penalty for Unauthorized Revelation of Classified Materials. - The penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon any person, police or law enforcement agent, judicial officer or civil servant who, not being authorized by the Court of Appeals to do so, reveals in any manner or form any classified information under this Act.
RA 9208: ANTI-TRAFFICKING PERSONS ACT OF 2003
(2)
IN
Trafficking in Persons - refers to the recruitment, transportation, transfer or harboring, or receipt of persons with or without the victim's consent or knowledge, within or across national borders by means of threat or use of force, or other forms of coercion, abduction, fraud, deception, abuse of power or of position, taking advantage of the vulnerability of the person, or, the giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation which includes at a minimum, the exploitation or the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery, servitude or the removal or sale of organs.
(3)
(4)
(5) (6)
The recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation shall also be considered as "trafficking in persons" even if it does not involve any of the means set forth in the preceding paragraph.
(7)
Punishable Acts Section 4. Acts of Trafficking in Persons. - It shall be unlawful for any person, natural or juridical, to commit any of the following acts: (1) To recruit, transport, transfer; harbor, provide, or receive a person by any means,
(8)
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including those done under the pretext of domestic or overseas employment or training or apprenticeship, for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; To introduce or match for money, profit, or material, economic or other consideration, any person or, as provided for under Republic Act No. 6955, any Filipino woman to a foreign national, for marriage for the purpose of acquiring, buying, offering, selling or trading him/her to engage in prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; To offer or contract marriage, real or simulated, for the purpose of acquiring, buying, offering, selling, or trading them to engage in prostitution, pornography, sexual exploitation, forced labor or slavery, involuntary servitude or debt bondage; To undertake or organize tours and travel plans consisting of tourism packages or activities for the purpose of utilizing and offering persons for prostitution, pornography or sexual exploitation; To maintain or hire a person to engage in prostitution or pornography; To adopt or facilitate the adoption of persons for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; To recruit, hire, adopt, transport or abduct a person, by means of threat or use of force, fraud, deceit, violence, coercion, or intimidation for the purpose of removal or sale of organs of said person; and To recruit, transport or adopt a child to engage in armed activities in the Philippines or abroad.
Section 5. Acts that Promote Trafficking in Persons. - The following acts which promote or 301
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facilitate trafficking in persons, shall be unlawful to: (1) knowingly lease or sublease, use or allow to be used any house, building or establishment for the purpose of promoting trafficking in persons; (2) produce, print and issue or distribute unissued, tampered or fake counseling certificates, registration stickers and certificates of any government agency which issues these certificates and stickers as proof of compliance with government regulatory and pre-departure requirements for the purpose of promoting trafficking in persons; (3) advertise, publish, print, broadcast or distribute, or cause the advertisement, publication, printing, broadcasting or distribution by any means, including the use of information technology and the internet, of any brochure, flyer, or any propaganda material that promotes trafficking in persons; (4) assist in the conduct of misrepresentation or fraud for purposes of facilitating the acquisition of clearances and necessary exit documents from government agencies that are mandated to provide predeparture registration and services for departing persons for the purpose of promoting trafficking in persons; (5) facilitate, assist or help in the exit and entry of persons from/to the country at international and local airports, territorial boundaries and seaports who are in possession of unissued, tampered or fraudulent travel documents for the purpose of promoting trafficking in persons; (6) confiscate, conceal, or destroy the passport, travel documents, or personal documents or belongings of trafficked persons in furtherance of trafficking or to prevent them from leaving the country or
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seeking redress from the government or appropriate agencies; and (7) knowingly benefit from, financial or otherwise, or make use of, the labor or services of a person held to a condition of involuntary servitude, forced labor, or slavery. Section 6. Qualified Trafficking in Persons. - The following are considered as qualified trafficking: (1) When the trafficked person is a child; (2) When the adoption is effected through Republic Act No. 8043, otherwise known as the "Inter-Country Adoption Act of 1995" and said adoption is for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; (3) When the crime is committed by a syndicate, or in large scale. Trafficking is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons, individually or as a group; (4) When the offender is an ascendant, parent, sibling, guardian or a person who exercises authority over the trafficked person or when the offense is committed by a public officer or employee; (5) When the trafficked person is recruited to engage in prostitution with any member of the military or law enforcement agencies; (6) When the offender is a member of the military or law enforcement agencies; and (7) When by reason or on occasion of the act of trafficking in persons, the offended party dies, becomes insane, suffers mutilation or is afflicted with Human Immunodeficiency Virus (HIV) or the Acquired Immune Deficiency Syndrome (AIDS).
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Title X. Crimes against Property
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(2) Article 313 - Altering Boundaries or Landmarks Chapter 5: Culpable Insolvency (1) Article 314 - Fraudulent Insolvency
Chapter I: Robbery in General (1) Article 293 - Who Are Guilty of Robbery (2) Article 294 - With Violence or Intimidation of Persons (3) Article 295 - Robbery with Physical Injuries, in an Uninhabited Place and by a Band (4) Article 296 - Definition of a Band and Penalty Incurred by the Members Thereof (5) Article 297 - Attempted and Frustrated Robbery with Homicide (6) Article 298 - Execution of Deeds through Violence or Intimidation (7) Article 299 - Robbery in an Inhabited House or Public Building or Edifice Devoted to Worship (8) Article 300 - Robbery in an Uninhabited Place and by a Band (9) Article 302 - In an Uninhabited Place or Private Building (10) Article 303 - Robbery of Cereals, Fruits or Firewood in an Inhabited Place or Private Building (11) Article 304 - Possession of Picklock or Similar Tools (12) Article 305 - False Keys
Chapter 6: Swindling (1) Article 315 – Estafa (2) Article 316 - Other Forms of Swindling (3) Article 317 - Swindling of a Minor (4) Article 318 - Other Deceits Chapter 7: Chattel mortgage (1) Article 319 - Removal, Sale, or Pledge of Mortgaged Property Chapter 8: Arson and other Crimes involving Destruction Chapter 9: Malicious mischief (1) Article 327 - Who Are Responsible (2) Article 328 - Special Cases of Malicious Mischief (3) Article 329 - Other Mischiefs (4) Article 330 - Damage and Obstruction to Means of Communication (5) Article 331 - Destroying or Damaging Statues, Public Monuments or Paintings Chapter 10: Exemption from Criminal Liability (1) Article 332 - Exemption from Criminal Liability in Crimes Against Property
Chapter 2: Brigandage (1) Article 306 - Who Are Brigands (2) Article 307 - Aiding and Abetting a Band of Brigands
CHAPTER I: ROBBERY IN GENERAL ARTICLE 293 - WHO ARE GUILTY OF ROBBERY
Chapter 3: Theft (1) Article 308 - Who Are Liable for Theft (2) Article 309 – Penalties (3) Article 310 - Qualified Theft (4) Article 311 - Theft of the Property of the National Library and National Museum
Elements of Robbery in General: (a) Personal property (b) Belonging to another (c) There is unlawful taking (d) With Intent to gain (e) Violence against or intimidation of any person OR force upon anything
Chapter 4: Usurpation (1) Article 312 - Occupation of Real Property or Usurpation of Real Rights in Property 303
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The property taken must be personal, if real property/right is usurped the crime is usurpation (Art. 312).
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When is violence committed? GENERAL RULE: Violence or intimidation must be present BEFORE the taking of personal property is complete.
Prohibitive articles may be the subject of robbery, e.g., opium
EXCEPTION: When violence results in homicide, rape, intentional mutilation, or any of the serious physical injuries penalized in par. 1 and 2 of Art. 263, the taking of the personal property is robbery complexed with any of those crimes under Art. 294, even if the taking was already complete when violence was used by the offender.
From the moment the offender gains possession of the object, even without the chance to dispose of the same, the unlawful taking is complete. “Taking” – depriving the offended party of possession of the thing taken with the character of permanency.
VIOLENCE AGAINST OR USE OF FORCE INTIMIDATION OF UPON THINGS PERSON
Intent to gain is presumed from the unlawful taking. It cannot be established by direct evidence, except in case of confession.
The taking robbery.
It is not necessary that violence or intimidation is present from the beginning. If the violence or intimidation at any time before asportation is complete, the taking of property is qualified to robbery. When is UNLAWFUL TAKING complete? In Robbery with violence against or intimidation of persons, even if the culprit has had no opportunity to dispose of the same, the unlawful taking is complete. There is no frustrated stage. In Robbery with force upon things, the thing must be taken out of the building to consummate the crime. There is a FRUSTRATED STAGE. (e.g. when the culprit had already broken the floor of the bodega, had entered it, and had removed one sack of sugar from the pile, but was caught in the act of taking out the sack through the opening of the door, crime committed is FRUSTRATED ROBBERY)
is
always The taking is robbery only if force is used to: (1) enter the building (2) break doors, wardrobes, chests, or any other kind of locked or sealed furniture or receptacle inside the building; OR (3) force them open outside after taking the same from the building (Art. 299 & 302)
Value of the thing taken is immaterial. The penalty depends on: (1) the result of the violence used 304
If committed in an inhabited house, public building, or edifice devoted to religious worship,
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performance of the work in which he is habitually engaged for labor for more than 90 days or the person injured becomes ill or incapacitated for labor for more than 30 days. (7) If the violence employed by the offender does not cause any of the serious physical injuries defined in Art. 263, or if the offender employs intimidation only.
the penalty is based on: (1) the value of the thing taken and (2) whether or not the offenders carry arms;
The crime defined in this article is a special complex crime.
ARTICLE 294 – ROBBERY WITH VIOLENCE AGAINST OR INTIMIDATION OF PERSONS
“On the occasion” and “by reason” mean that homicide or serious physical injuries must be committed in the course or because of the robbery.
Acts punished under Art 294: (1) When by reason or on occasion of the robbery, Homicide is committed. (Robbery with Homicide) (2) When the robbery is accompanied by Rape or Intentional Mutilation or Arson. (Robbery with Rape, Robbery with Intentional Mutilation, Robbery with Arson) (3) When by reason or on occasion of such robbery, any of the Physical Injuries resulting in insanity, imbecility, impotency, or blindness is inflicted. (4) When by reason or on occasion of robbery, any of the Physical Injuries resulting in the loss of the use of speech or the power to hear or to smell, or the loss of an eye, a hand, a foot, an arm or a leg or the loss of the use of any such member, or incapacity for the work in which the injured person is theretofore habitually engaged is inflicted. (5) If the violence or intimidation employed in the commission of the robbery is carried to a degree clearly unnecessary for the commission of the crime. (6) When in the course of its execution, the offender shall have inflicted upon any person not responsible for the commission of the robbery any of the Physical Injuries in consequence of which the person injured becomes deformed or loses any other member of his body or loses the use thereof or becomes ill or incapacitated for the
The violence must be against the person, not upon the thing taken. It must be present before the taking of personal property is complete. “Homicide” is used in its generic sense, as to include parricide and murder. Hence, there is no robbery with murder. The crime is still robbery with homicide even if, in the course of the robbery, the person killed was another robber or a bystander. Even if the rape was committed in another place, it is still robbery with rape. When the taking of personal property of a woman is an independent act following defendant’s failure to consummate the rape, there are two distinct crimes committed: attempted rape and theft. Additional rape committed on the same occasion of robbery will not increase the penalty. Absence of intent to gain will make the taking of personal property grave coercion if there is violence used (Art. 286). If both violence/intimidation of persons (294) and force upon things (299/302) co-exist, it will
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be considered as violation of Art 294 because it is more serious than in Art 299/302.
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rape and his taking away the belongings of the victim was only a mere afterthought, two separate felonies are committed: Rape and Theft or Robbery depending upon the circumstances surrounding the unlawful taking. [People v. Naag, GR No. 1361394, Feb. 15, 2001]
BUT when robbery is under Art 294 par 4 & 5 the penalty is lower than in Art 299 so the complex crime should be imputed for the higher penalty to be imposed without sacrificing the principle that robbery w/ violence against persons is more severe than that w/ force upon things. [Napolis v. CA (1972)]
ARTICLE 295 - ROBBERY WITH PHYSICAL INJURIES, IN AN UNINHABITED PLACE AND BY A BAND
When the taking of the victim’s gun was to prevent the victim from retaliating, then the crimes committed are theft and homicide not robbery with homicide. [People v. Millian (2000)]
Robbery with violence against or intimidation of persons is qualified when it is committed: (1) In an Uninhabited place, or (2) By a Band, or (3) By Attacking a moving train, street car, motor vehicle, or airship, or (4) By Entering the passengers’ compartments in a train, or in any manner taking the passengers thereof by surprise in the respective conveyances, or (5) On a Street, road, highway, or alley, AND the intimidation is made with the use of Firearms
These offenses are known as SPECIAL COMPLEX CRIMES. Crimes defined under this article are the following: (1) Robbery with homicide (2) Robbery with rape (3) Robbery with intentional mutilation (4) Robbery with arson (5) Robbery with serious physical injuries
Here, the offender shall be punished by the maximum periods of the proper penalties in Art. 294. The penalty cannot be offset by a generic mitigating circumstance.
ROBBERY WITH HOMICIDE; (Absorption Theory applied) Attempted homicide or attempted murder committed during or on the occasion of the robbery, as in this case, is absorbed in the crime of Robbery with Homicide which is a special complex crime that remains fundamentally the same regardless of the number of homicides or injuries committed in connection with the robbery. [People v. Cabbab, Jr. (2007)]
The intimidation with the use of firearm qualifies only robbery on a street, road, highway, or alley. Any of these qualifying circumstances must be alleged in the information and proved during the trial.
ROBBERY WITH RAPE If the intention of the accused was to rob, but rape was committed even before the asportation, the crime is the special complex crime of Robbery with Rape. So long as the intent of the accused is to rob, rape may be committed before, during or after the robbery. But if the primary intent of the accused was to 306
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ARTICLE 296 – ROBBERY BY A BAND
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But when there is conspiracy to commit homicide and robbery, all the conspirators, even if less than 4 armed men, are liable for the special complex crime of robbery with homicide.
Outline of Art. 296 (Definition of a Band and Penalty Incurred by the Members Thereof): (1) When at least 4 armed malefactors take part in the commission of a robbery, it is deemed committed by a band. (2) When any of the arms used in the commission of robbery is not licensed, penalty upon all the malefactors shall be the maximum of the corresponding penalty provided by law, without prejudice to the criminal liability for illegal possession of such firearms. (3) Any member of a band who was present at the commission of a robbery by the band, shall be punished as principal of any of the assaults committed by the band, unless it be shown that he attempted to prevent the crime.
Art 296 is not applicable to principal by inducement, who was not present at the commission of the robbery, if the agreement was only to commit robbery. The article speaks of more than 3 armed malefactors who “takes part in the commission of the robbery” and member of a band “who is present at the commission of a robbery by a band.” Thus, a principal by inducement, who did not go with the band at the place of the commission of the robbery, is not liable for robbery with homicide, but only for robbery in band, there being no evidence that he gave instructions to kill the victim or intended that this should be done. When there was conspiracy for robbery only but homicide was also committed on the occasion thereof, all members of the band are liable for robbery with homicide.
Requisites for Liability for the acts of the other members: (1) Member of the band. (2) Present at the commission of the robbery. (3) Other members committed an assault. (4) He did not attempt to prevent assault.
Whenever homicide is committed as a consequence of or on the occasion of a robbery, all those who took part in the commission of the robbery are also guilty as principals in the crime of homicide unless it appears that they endeavored to prevent the homicide.
Conspiracy is presumed when robbery is by band. When the robbery was not committed by a band, the robber who did not take part in the assault by another is not liable for that assault.
Proof of conspiracy is not essential to hold a member of the band liable for robbery with homicide actually committed by the other members of the band.
When the robbery was not by a band and homicide was not determined by the accused when they plotted the crime, the one who did not participate in the killing is liable for robbery only. It is only when the robbery is in band that all those present in the commission of the robbery may be punished for any of the assaults which any of its members might commit.
There is no crime as “robbery with homicide in band”. Band is only ordinary aggravating circumstance in robbery w/ homicide In order for special aggravating circumstance of unlicensed firearm to be appreciated, it is 307
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condition sine qua non that offense charged be robbery by a band under Art 295.
ARTICLE 298 - EXECUTION OF DEEDS THROUGH VIOLENCE OR INTIMIDATION
Pursuant to Art 295, circumstance of a band is qualifying only in robbery under par 3, 4 & 5 of Art 294. Hence, Art. 295 does not apply to robbery with homicide, or robbery with rape, or robbery with serious physical injuries under par. 1 of Art. 263.
Elements: (a) Offender has Intent to defraud another (b) Offender Compels him to sign, execute, or deliver any public instrument or document (c) Compulsion is by means of violence or intimidation.
Special aggravating circumstance of unlicensed firearm is inapplicable to robbery w/ homicide, or robbery with rape, or robbery with physical injuries, committed by a band. [People v. Apduhan]
If the violence resulted in the death of the person to be defrauded, crime is robbery with homicide and shall be penalized under Art 294 par. 1. Art. 298 applies to private or commercial document, but it does not apply if document is void.
ARTICLE 297 - ATTEMPTED AND FRUSTRATED ROBBERY WITH HOMICIDE Elements: (a) There is attempted or frustrated robbery (b) A homicide is committed on the same occasion
When the offended party is under obligation to sign, execute or deliver the document under the law, it is not robbery but coercion.
“Homicide” includes multiple homicides, murder, parricide, or even infanticide.
By Force Upon Things (1) Robbery by the use of force upon things is committed only when either: (2) Offender entered a house or building by any of the means specified in Art. 299 or Art. 302, or (3) Even if there was no entrance by any of those means, he broke a wardrobe, chest, or any other kind of locked or closed or sealed furniture or receptacle in the house or building, or he took it away to be broken or forced open outside.
The penalty is the same, whether robbery is attempted or frustrated. Robbery with homicide and attempted or frustrated robbery with homicide are special complex crimes, not governed by Art. 48, but by the special provisions of Arts. 294 & 297, respectively. There is only one crime of attempted robbery with homicide even if slight physical injuries were inflicted on other persons on the occasion or by reason of the robbery.
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ARTICLE 299 - ROBBERY IN AN INHABITED HOUSE OR PUBLIC BUILDING OR EDIFICE DEVOTED TO WORSHIP
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The whole body of the culprit must be inside the building to constitute entering. Illustration: If the culprit had entered the house through an open door, and the owner, not knowing that the culprit was inside, closed and locked the door from the outside and left, and the culprit, after taking personal property in the house, went out through the window, it is only theft, not robbery.
Elements of robbery with force upon things under SUBDIVISION (A): (a) Offender entered (1) An inhabited house (2) Public building (3) Edifice devoted to religious worship (b) Entrance was effected by any of the following means: (1) Through an opening not intended for entrance or egress; (2) By breaking any wall, roof, or floor, or door or window; (3) By using False keys, picklocks or similar tools; or (4) By using any Fictitious name or pretending the exercise of public authority. (c) That once inside the building, the offender took personal property belonging to another with intent to gain.
“Breaking” – means entering the building. The force used must be actual, as distinguished constructive force. “False keys” – genuine keys stolen from the owner or any keys other than those intended for use in the lock forcibly opened by the offender. The genuine key must be stolen, not taken by force or with intimidation, from the owner. If false key is used to open wardrobe or locked receptacle or drawer or inside door it is only theft.
There must be evidence that accused entered the dwelling house or building by any of the means enumerated in subdivision (a). In entering the building, there must be the intent to take personal property.
“Public building” – every building owned by the Government or belonging to a private person but used or rented by the Government, although temporarily unoccupied by the same.
Elements of robbery with force upon things under SUBDIVISION (B) of Art. 299: (a) Offender is inside a dwelling house, public building, or edifice devoted to religious worship, regardless of the circumstances under which he entered it. (b) Offender takes personal property belonging to another, with intent to gain, under any of the following circumstances: (1) Breaking of doors, wardrobes, chests, or any other kind of locked or sealed furniture or receptacle; or (2) Taking such furniture or objects away to be broken or forced open outside the place of the robbery.
Any of the four means described in subdivision (a) must be resorted to enter a house or building, not to get out otherwise it is only theft.
Entrance into the building by any of the means mentioned in subdivision (a) is not required in robbery under subdivision (b)
“Inhabited house” – any shelter, ship, or vessel constituting the dwelling of one or more persons even though the inhabitants thereof are temporarily absent when the robbery is committed.
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but used or rented by the Government, although temporarily unoccupied by the same.
The term “door” in par. 1, subdivision (b) of Art. 299, refers only to “doors, lids or opening sheets” of furniture or other portable receptacles—not to inside doors of house or building.
“Dependencies” – all interior courts, corrals, warehouses, granaries or inclosed places contiguous to the building or edifice, having an interior entrance connected therewith, and which form part of the whole (Art. 301, par. 2).
Breaking the keyhole of the door of a wardrobe, which is locked, is breaking a locked furniture. It is theft if the locked or sealed receptacle is not forced open in the building where it is kept or taken from to be broken outside.
Requisites: (1) Contiguous to the building; (2) Interior entrance connected therewith; (3) Form part of the whole.
The penalty depends on the value of property taken and on whether or not offender carries arm. Arms carried must not be used to intimidate. Liability for carrying arms is extended to all those who participated in the robbery, including those without arms.
Orchards and lands used for cultivation or production are not included in the term “dependencies” (Art. 301, par. 3).
ARTICLE 300 – ROBBERY IN AN UNINHABITED PLACE AND BY A BAND
The provision punishes more severely the robbery in a house used as a dwelling than that committed in an uninhabited place, because of the possibility that the inhabitants in the former might suffer bodily harm during the robbery.
Robbery in an inhabited house, public building or edifice dedicated to religious worship is qualified when committed by a band and located in an uninhabited place.
ARTICLE 301 - WHAT IS AN INHABITED HOUSE, PUBLIC BUILDING DEDICATED TO RELIGIOUS WORSHIP AND THEIR DEPENDENCIES:
See discussion on Art. 296 for definition of “band.”
“Inhabited house” – any shelter, ship, or vessel constituting the dwelling of one or more persons even though the inhabitants thereof are temporarily absent when the robbery is committed. Even if the occupant was absent during the robbery, the place is still inhabited if the place was ordinarily inhabited and intended as a dwelling. “Public building” – every building owned by the Government or belonging to a private person
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To qualify Robbery w/ force upon things (Art 299)
To qualify Robbery w/ violence against or intimidation of persons
It must be committed in uninhabited place and by a band (Art 300)
It must be committed in an uninhabited place or by a band (Art. 295)
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ARTICLE 302 UNINHABITED BUILDING
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– ROBBERY IN AN PLACE OR PRIVATE
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A receptacle is a container, which must be “closed” or “sealed”. Penalty is based only on value of property taken.
Elements: (a) Offender entered an uninhabited place or a building which was not a dwelling house, not a public building, or not an edifice devoted to religious worship. (b) That any of the following circumstances was present: (1) Entrance was effected through an opening not intended for entrance or egress; (2) A wall, roof, floor, or outside door or window was broken (3) Entrance was effected through the use of false keys, picklocks or other similar tools; (4) A door, wardrobe, chest, or any sealed or closed furniture or receptacle was broken; or (5) A closed or sealed receptacle was removed, even if the same be broken open elsewhere. (6) With intent to gain, the offender took therefrom personal property belonging to another.
ARTICLE 303 - ROBBERY OF CEREALS, FRUITS OR FIREWOOD IN AN UNINHABITED PLACE OR PRIVATE BUILDING In cases enumerated in Arts. 299 and 302, the penalty is one degree lower when robbery consists in the taking of cereals, fruits, or firewood. Cereals – seedlings which are the immediate product of the soil. The palay must be kept by the owner as “seedling” or taken for that purpose by the robbers.
ARTICLE 304 - POSSESSION PICKLOCK OR SIMILAR TOOLS
OF
Elements: (a) Offender has in his possession picklocks or similar tools; (b) Such picklock or similar tools are especially adopted to the commission of robbery; (c) Offender does not have lawful cause for such possession.
“Building” – includes any kind of structure used for storage or safekeeping of personal property, such as (a) freight car and (b) warehouse.
Possession of such tools, without lawful cause, is punished. Actual use is not necessary. Since picking of locks is one way to gain entrance to commit robbery, a picklock is per se specially adapted to the commission of robbery. [People v Lopez, 1965]
Entrance through an opening not intended for entrance or egress is not necessary, if there is breaking of wardrobe, chest, or sealed or closed furniture or receptacle, or removal thereof to be broken open elsewhere. Breaking padlock is use of force upon things.
If the person who makes such tools is a locksmith, the penalty is higher.
Use of fictitious name or pretending the exercise of public authority is not covered under this article.
ARTICLE 305 - FALSE KEYS Deemed to include the following: (1) Tools mentioned in Article 304; 311
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(2) Genuine keys stolen from the owner; (3) Any key other than those intended by the owner for use in the lock forcibly opened by the offender.
(2) Kidnap to extort necessarily in a or get ransom highway (3) Any other purpose to be achieved by means of force or violence
CHAPTER 2: BRIGANDAGE Proof
ARTICLE 306 - WHO ARE BRIGANDS Elements of Brigandage: (a) There be at least 4 armed persons (b) They formed a band of robbers (c) The purpose is any of the following: (1) To commit robbery in the highway; or (2) To kidnap for the purpose of extortion or to obtain ransom; or (3) To attain by means of force and violence any other purpose.
It is necessary to prove that the band actually committed the robbery. Conspiracy to commit robbery is not punishable.
Elements: (a) There is a band of brigands (b) Offender knows the band to be of brigands (c) Offender does any of the following acts: (1) He in any manner aids, abets or protects such band of brigands; or (2) He gives them information of the movements of the police or other peace officers; or (3) He acquires or receives the property taken by such brigands.
The main object of the law is to prevent the formation of band of robbers. The term “highway” includes city streets. The following must be proved: (1) Organization of more than 3 armed persons forming a band of robbers (2) Purpose of the band is any of those enumerated in Art. 306. (3) That they went upon the highway or roamed upon the country for that purpose. (4) That the accused is a member of such band. ROBBERY BAND
Mere formation of a band for any of the above purposes is sufficient. There is no requirement that the brigands consummate the crime.
ARTICLE 307 - AIDING AND ABETTING A BAND OF BRIGANDS
Presumption of law as to brigandage: All are presumed highway robbers or brigands, if any of them carries unlicensed firearm. The arms carried may be any deadly weapon.
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It is presumed that the person performing any of the acts provided in this article has performed them knowingly, unless the contrary is proven. Any person who aids or protects highway robbers or abets the commission of highway robbery or brigandage shall be considered as an accomplice.
IN
Purpose (1) Commit robbery Commit robbery, in a highway and not
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to gain is presumed from the unlawful taking of personal property belonging to another. [Valenzuela v. People (2007)]
CHAPTER 3 THEFT ARTICLE 308 - WHO ARE LIABLE FOR THEFT
If a person takes property of another, believing it to be his own, presumption of intent to gain is rebutted. Hence, he is not guilty of theft.
Elements: (a) Taking of personal property (b) Personal property belongs to another (c) Taking was done with intent to gain. (d) Taking was wiithout the consent of the owner. (e) Accomplished without the use of violence against or intimidation of persons or force upon things.
If one takes personal property openly and avowedly under claim of title made in good faith, he is not guilty of theft even though claim of ownership is later found to be untenable. If possession was only material or physical, the crime is THEFT. If possession was juridical, crime is ESTAFA.
Persons liable: (1) Those who, with intent to gain, without violence against or intimidation of persons nor force upon things, take personal property, of another without the latter’s consent. (2) Those who, having found lost property, fail to deliver the same to the local authorities or to its owner. (3) Those who, after having maliciously damaged the property of another, remove or make use of the fruits or object of the damage caused by them. (4) Those who enter an inclosed estate or field where trespass is forbidden or which belongs to another and, without the consent of its owner, hunt or fish upon the same or gather fruits, cereals, or other forest or farm products.
Selling share of a partner or co-owner is not theft. Actual or real gain is not necessary in theft. The consent contemplated in this article refers to consent freely given, and not mere lack of opposition by owner of the property taken. It is not robbery when violence is for a reason entirely foreign to the fact of taking. Gulinao shot Dr. Chua and left. Then he went back & took Dr. Chua’s diamond ring. The crime was Theft and not robbery. Circumstances show that the taking was merely an afterthought. Violence used in killing Dr. Chua had no bearing on the taking of the ring. [People v. Gulinao, (1989)]
The theft is consummated & taking completed once the culprit is able to place the thing taken under his control, and in such a situation that he could dispose of it at once.
Properties were taken after accused has already carried out his primary criminal intent of killing the victim. Considering that the victim was already heavily wounded when his properties were taken, there was no need to employ violence against or intimidation upon his person. Hence, accused can only be held guilty of the separate offense of theft. [People v. Basao (1999)]
In accordance with the definition in Art 308, there is no frustrated theft. The offender has either complete control of the property (consummated) or without (attempted). Intent 313
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In theft, corpus delicti has two elements, namely: (1) that the property was lost by the owner, and (2) that it was lost by felonious taking. [Gan vs. People (2007)]
One in possession of part of recently stolen property is presumed to be thief of all. “Lost property” – embraces loss by stealing or by act of the owner or by a person other than the owner, or through some casual occurrence.
ARTICLE 309 – PENALTIES The basis of the penalty in theft is (1) the value of the thing stolen, or (2) the value and nature of the property taken, or (3) the circumstances that impelled the culprit to commit the crime.
It is necessary to prove the following in order to establish theft by failure to deliver or return lost property: (1) Time of the seizure of the thing (2) It was a lost property belonging to another; and (3) That the accused having had the opportunity to return or deliver the lost property to its owner or to the local authorities, refrained from doing so.
If there is no evidence of the value of the property stolen, the court should impose the minimum penalty corresponding to theft involving the value of P5.00. The court may also take judicial notice of its value in the proper cases.
The law does not require knowledge of the owner of the property.
ARTICLE 310 - QUALIFIED THEFT Elements of hunting, fishing or gathering fruits, etc., in enclosed estate: (1) That there is an enclosed estate or a field, where trespass is forbidden or which belongs to another (2) Offender enters the same (3) Offender hunts or fishes upon the same or gathers fruits, cereals or other forest or farm products in the estate or field; and (4) That the hunting or fishing or gathering of products is without the consent of the owner.
Theft is qualified if: (1) Committed by a domestic servant (2) Committed with grave abuse of confidence (3) The property stolen is (a) motor vehicle (b) mail matter, or (c) large cattle (4) The property stolen consists of coconuts taken from the premises of a plantation (5) The property stolen is fish taken from a fishpond or fishery (6) The property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance.
Corpus Delicti To be caught in possession of the stolen property is not an element of the corpus delicti in theft. Corpus delicti means the “body or substance of the crime, and, in its primary sense, refers to the fact that the crime has been actually committed.”
The penalty for qualified theft is 2 degrees higher.
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Theft by domestic servant is always qualified. There is no need to prove grave abuse of confidence.
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Elements: (a) Robbery or theft has been committed. (b) The accused, who is not a principal or accomplice in the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object, or anything of value, which has been derived from the proceeds of the said crime. (c) The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft. (d) There is, on the part of the accused, intent to gain for himself or another.
The abuse of confidence must be grave. There must be allegation in the information and proof of a relation, by reason of dependence, guardianship or vigilance, between the accused and the offended party that has created a high degree of confidence between them, which the accused abused. Theft of any material, spare part, product or article by employees and laborers is heavily punished under PD 133. “Motor vehicle” - all vehicles propelled by power, other than muscular power. Theft of motor vehicle may now fall under the Anti-Carnapping law.
Mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing. [People v. DizonPamintuan]
When the purpose of taking the car is to destroy it by burning it, the crime is arson. If a private individual took a letter containing postal money order, it is qualified theft. If it was the postmaster, to whom the letter was delivered, the crime would be infidelity in the custody of documents.
Robbery/theft and fencing are separate and distinct offenses. "Fence" – includes any person, firm, association, corporation or partnership or other organization who/which commits the act of fencing.
Regarding the theft of coconuts and fish, what matters is not the execution, but the location where it is taken. It should be in the plantation or in the fishpond.
PD 1612: ANTI-FENCING LAW
Presumption of Fencing Mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing.
Fencing – The act ny person who, with intent to gain for himself or for another, shall buy, receive, keep, acquire, conceal, sell, or dispose of, or shall buy and sell or in any other manner deal in any article, item, object, or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft.
Exception With Clearance or Permit to Sell Section 6. Clearance/Permit to Sell/Used Second Hand Articles. For purposes of this Act, all stores, establishments or entities dealing in the buy and sell of any good, article, item, object or anything of value obtained from an unlicensed dealer or supplier thereof, shall before offering the same for sale to the public, 315
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secure the necessary clearance or permit from the station commander of the Integrated National Police in the town or city where such store, establishment or entity is located. The Chief of Constabulary/Director General, Integrated National Police shall promulgate such rules and regulations to carry out the provisions of this section. Any person who fails to secure the clearance or permit required by this section or who violates any of the provisions of the rules and regulations promulgated thereunder shall upon conviction be punished as a fence.
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registered with the Land Transportation Commission. Motor vehicles assembled and rebuilt or repaired by replacement with motor vehicle engines, engine blocks and chassis not registered with the Land Transportation Commission shall not be issued certificates of registration and shall be considered as untaxed imported motor vehicles or motor vehicles carnapped or proceeding from illegal sources. Section 6. Original Registration of motor vehicles. Any person seeking the original registration of a motor vehicle, whether that motor vehicle is newly assembled or rebuilt or acquired from a registered owner, shall within one week after the completion of the assembly or rebuilding job or the acquisition thereof from the registered owner, apply to the Philippine Constabulary for clearance of the motor vehicle for registration with the Land Transportation Commission. The Philippine Constabulary shall, upon receipt of the application, verify if the motor vehicle or its numbered parts are in the list of carnapped motor vehicles or stolen motor vehicle parts. If the motor vehicle or any of its numbered parts is not in that list, the Philippine Constabulary shall forthwith issue a certificate of clearance. Upon presentation of the certificate of clearance from the Philippine Constabulary and after verification of the registration of the motor vehicle engine, engine block and chassis in the permanent registry of motor vehicle engines, engine blocks and chassis, the Land Transportation Commission shall register the motor vehicle in accordance with existing laws, rules and regulations.
RA 6539: ANTI-CARNAPPING ACT Registration Section 3. Registration of motor vehicle engine, engine block and chassis. Within one year after the approval of this Act, every owner or possessor of unregistered motor vehicle or parts thereof in knock down condition shall register with the Land Transportation Commission the motor vehicle engine, engine block and chassis in his name or in the name of the real owner who shall be readily available to answer any claim over the registered motor vehicle engine, engine block or chassis. Thereafter, all motor vehicle engines, engine blocks and chassis not registered with the Land Transportation Commission shall be considered as untaxed importation or coming from an illegal source or carnapped, and shall be confiscated in favor of the Government. All owners of motor vehicles in all cities and municipalities are required to register their cars with the local police without paying any charges.
Who are Liable Duty of Collector of Customs Section 7. Duty of Collector of Customs to report arrival of imported motor vehicle, etc. The Collector of Customs of a principal port of entry where an imported motor vehicle, motor vehicle engine, engine block chassis or body is
Section 5. Registration of sale, transfer, conveyance, substitution or replacement of a motor vehicle engine, engine block or chassis. Every sale, transfer, conveyance, substitution or replacement of a motor vehicle engine, engine block or chassis of a motor vehicle shall be 316
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unloaded, shall, within seven days after the arrival of the imported motor vehicle or any of its parts enumerated herein, make a report of the shipment to the Land Transportation Commission, specifying the make, type and serial numbers, if any, of the motor vehicle engine, engine block and chassis or body, and stating the names and addresses of the owner or consignee thereof. If the motor vehicle engine, engine block, chassis or body does not bear any serial number, the Collector of Customs concerned shall hold the motor vehicle engine, engine block, chassis or body until it is numbered by the Land Transportation Commission.
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together with the names and addresses of the sources thereof. In the case of motor vehicle engines to be mounted on motor boats, motor bancas and other light water vessels, the applicant shall secure a permit from the Philippine Coast Guard, which office shall in turn furnish the Land Transportation Commission the pertinent data concerning the motor vehicle engines including their type, make and serial numbers. Definition of terms/Punishable Acts Carnapping – is the taking, with intent to gain, of a motor vehicle belonging to another without the latter's consent, or by means of violence against or intimidation of persons, or by using force upon things.
Duty of Importers Distributors and Sellers Section 8. Duty of importers, distributors and sellers of motor vehicles to keep record of stocks. Any person engaged in the importation, distribution, and buying and selling of motor vehicles, motor vehicle engines, engine blocks, chassis or body, shall keep a permanent record of his stocks, stating therein their type, make and serial numbers, and the names and addresses of the persons from whom they were acquired and the names and addresses of the persons to whom they were sold, and shall render an accurate monthly report of his transactions in motor vehicles to the Land Transportation Commission.
Motor vehicle –is any vehicle propelled by any power other than muscular power using the public highways, but excepting road rollers, trolley cars, street-sweepers, sprinklers, lawn mowers, bulldozers, graders, fork-lifts, amphibian trucks, and cranes if not used on public highways, vehicles, which run only on rails or tracks, and tractors, trailers and traction engines of all kinds used exclusively for agricultural purposes. Trailers having any number of wheels, when propelled or intended to be propelled by attachment to a motor vehicle, shall be classified as separate motor vehicle with no power rating.
Clearance and Permit Section 10. Clearance and permit required for assembly or rebuilding of motor vehicles. Any person who shall undertake to assemble or rebuild or cause the assembly or rebuilding of a motor vehicle shall first secure a certificate of clearance from the Philippine Constabulary: Provided, That no such permit shall be issued unless the applicant shall present a statement under oath containing the type, make and serial numbers of the engine, chassis and body, if any, and the complete list of the spare parts of the motor vehicle to be assembled or rebuilt
Defacing or tampering with a serial number – is the erasing, scratching, altering or changing of the original factory-inscribed serial number on the motor vehicle engine, engine block or chassis of any motor vehicle. Whenever any motor vehicle is found to have a serial number on its motor engine, engine block or chassis which is different from that which is listed in the records of the Bureau of Customs for motor vehicles imported into the Philippines, that
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motor vehicle shall be considered to have a defaced or tampered with serial number.
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and by imprisonment for not less than seventeen years and four months and not more than thirty years, when the carnapping is committed by means of violence against or intimidation of any person, or force upon things; and the penalty of life imprisonment to death shall be imposed when the owner, driver or occupant of the carnapped motor vehicle is killed in the commission of the carnapping.
Section 12. Defacing or tampering with serial numbers of motor vehicle engines, engine blocks and chassis. It shall be unlawful for any person to deface or otherwise tamper with the original or registered serial number of motor vehicle engines, engine blocks and chassis.
ARTICLE 311 - THEFT OF THE PROPERTY OF THE NATIONAL LIBRARY AND NATIONAL MUSEUM
Section 13. Penal Provisions. Any person who violates any provisions of this Act shall be punished with imprisonment for not less than two years nor more than six years and a fine equal in amount to the acquisition cost of the motor vehicle, motor vehicle engine or any other part involved in the violation: Provided, That if the person violating any provision of this Act is a juridical person, the penalty herein provided shall be imposed on its president or secretary and/or members of the board of directors or any of its officers and employees who may have directly participated in the violation.
Theft of property of the National Museum and National Library has a fixed penalty (arresto mayor of fine of P200-500 or both) regardless of the property's value. But if it was with grave abuse of confidence, the penalty for qualified theft shall be imposed.
CHAPTER 4: USURPATION ARTICLE 312 - OCCUPATION OF REAL PROPERTY OR USURPATION OF REAL RIGHTS IN PROPERTY
Any government official or employee who directly commits the unlawful acts defined in this Act or is guilty of gross negligence of duty or connives with or permits the commission of any of the said unlawful act shall, in addition to the penalty prescribed in the preceding paragraph, be dismissed from the service with prejudice to his reinstatement and with disqualification from voting or being voted for in any election and from appointment to any public office.
Acts punishable under Art. 312: (1) Taking possession of any real property belonging to another by means of violence against or intimidation of persons (2) Usurping any real rights in property belonging to another by means of violence against or intimidation of persons. Elements: (a) Offender takes possession of any real property OR usurps any real rights in property (b) Real property or real rights belong to another (c) Violence against or intimidation of persons is used by the offender in occupying real property or usurping real rights in property. (d) There is intent to gain.
Section 14. Penalty for Carnapping. Any person who is found guilty of carnapping, as this term is defined in Section two of this Act, shall, irrespective of the value of motor vehicle taken, be punished by imprisonment for not less than fourteen years and eight months and not more than seventeen years and four months, when the carnapping is committed without violence or intimidation of persons, or force upon things; 318
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(3) removing a fence If no violence or intimidation only civil liability exists. Violence or intimidation must be the means used in occupying real property or in usurping real rights.
CHAPTER 5: CULPABLE INSOLVENCY ART. 314 - FRAUDULENT INSOLVENCY Elements: (a) The offender is a debtor, and he has obligations due and payable (b) He absconds with his property (c) There is prejudice to his creditors
Art. 312 does not apply when the violence or intimidation took place subsequent to the entry into the property. Art. 312 does not apply to a case of open defiance of the writ of execution issued in the forcible entry case. Criminal action for usurpation of real property is not a bar to civil action for forcible entry.
Actual prejudice, not intention alone, is required. Even if the debtor disposes of his property, unless it is shown that it has actually prejudiced his creditor, conviction will not lie.
RA 947 punishes entering or occupying public agricultural land including lands granted to private individuals.
Fraudulent concealment of property is not sufficient if the debtor has some property with which to satisfy his obligation.
Usurpation Act
Occupation Usurpation
“Abscond” – does not require that the debtor should depart and physically conceal his property. Real property could be the subject matter of Art. 314.
Theft or Robbery or Taking asportation
or
What is Real property or Personal Taken Real Right property Intent
To Gain
The person prejudiced must be creditor of the offender.
To Gain
Art 314
ARTICLE 313 - ALTERING BOUNDARIES OR LANDMARKS
No need insolvency proceedings.
Insolvency law
for Crime should be committed after the institution of insolvency proceedings No need to be adjudged bankrupt or insolvent
Elements: (a) There are boundary marks or monuments of towns, provinces, or estates, or any other marks intended to designate the boundaries of the same. (b) The offender alters said boundary marks. Provision does not require intent to gain. The word “alter” may include: (1) destruction of stone monument (2) taking it to another place 319
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(a) Money, goods, or other personal property is received by the offender in trust, or in commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return, the same; (b) There is misappropriation or conversion of such money or property by the offender, or denial on his part of such receipt; (c) Such misappropriation or conversion or denial is to the prejudice of another; and (d) There is a demand made by the offended party to the offender
CHAPTER 6: SWINDLING AND OTHER DECEITS ARTICLE 315 - ESTAFA Elements of Estafa in General: (a) The accused defrauded another (1) by abuse of confidence; or (2) by means of deceit; and (b) The damage or prejudice capable of pecuniary estimation is caused to the offended party or third person. With Unfaithfulness or Abuse of Confidence (315 par. 1(a) (b) (c))
The 4th element is not necessary when there is evidence of misappropriation of goods by the defendant.
Par 1(a): Altering substance, quantity or quality of object subject of obligation to deliver Elements of estafa with unfaithfulness (a) Offender has an onerous obligation to deliver something of value. (b) He alters its substance, quantity, or quality (c) Damage or prejudice is caused to another
Check is included in the word “money”. Money, goods or other personal property must be received by the offender under certain kinds of transaction transferring juridical possession to him. The offender acquires both physical possession and juridical possession when the thing is received by the offender from the offended party (1) in trust, or (2) on commission, or (3) for administration,
Deceit is NOT an essential element of estafa with abuse of confidence. Damage or prejudice must be capable of estimation, because it is the basis of the penalty. Delivery of anything of value must be “by virtue of an onerous obligation to do so”.
“Juridical possession” – means a possession which gives the transferee a right over the thing which he may invoke even as against the owner.
It is not estafa if the thing delivered is not acceptable to the complainant when there is no agreement as to its quality.
When the delivery of a chattel does not transfer juridical possession/title, it is presumed that the possession/title of the thing remain w/ owner.
Estafa may arise even if thing delivered is not subject of lawful commerce, such as opium.
Failure to turn over to the bank the proceeds of sale of goods covered by trust receipts is estafa.
Par.1(b): Misappropriation and Conversion Elements of estafa with abuse of confidence
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The phrase “or under any obligation involving the duty to make delivery of, or to return the same”, includes quasi-contracts and certain contracts of bailment. The obligation to return the thing must be contractual but without transferring to accused ownership of the thing.
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should not be confused with criminal intent. Criminal intent is required for the conviction of estafa. Earnest effort to comply with obligation is a defense against estafa. [Manahan vs CA (1996)] 3 Ways of Committing Estafa With Abuse Of Confidence Under Art. 315 Par. (B): (1) Misappropriating the thing received. (2) Converting the thing received. (3) Denying that the thing was received.
When ownership is transferred to recipient, his failure to return it results in civil liability only. Applicable Civil Code provisions: (1) Art. 1477. The ownership of the thing sold shall be transferred to the vendee upon actual or constructive delivery thereof. (2) Art. 1482. Whenever earnest money is given in a contract of sale, it shall be considered as part of the price and as proof of the perfection of the contract.
“Misappropriating” – means to own, to take something for one's own benefit. “Converting” – Using or disposing of another’s property as if it were one’s own. “Conversion” – presupposes that the thing has been devoted to a purpose or use different from that agreed upon.
In estafa with abuse of confidence under par. (b), subdivision 1 of Art. 315, the thing received must be returned if there is an obligation to return it.
The fact that an agent sold the thing received on commission for a lower price than the one fixed, does not constitute estafa (US v Torres).
If no obligation to return there is only civil liability.
The law does not distinguish between temporary and permanent misappropriations.
No estafa when: (1) Transaction sale fails. There is no estafa if the accused refused to return the advance payment. (2) The money or personal property received by accused is not to be used for a particular purpose or to be returned. (3) Thing received under a contract of sale on credit
No estafa under Art. 315 par (b) when there is neither misappropriation nor conversion. Right of agent to deduct commission from amounts (1) If agent is authorized to retain his commission out of the amounts he collected, there is no estafa. (2) Otherwise he is guilty of estafa, because his right to commission does not make the agent a co-owner of money
Payment by students to the school for the value of materials broken is not mere deposit. Novation of contract of agency to one of sale, or to one of loan, relieves defendant from incipient criminal liability under the first contract.
3rd element of estafa with abuse of confidence is that the conversion, or denial by offender resulted in the prejudice of the offended party.
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“To the prejudice of another” – not necessarily of the owner of the property.
when the explanation of the accused is absolutely devoid of merit.
General rule: Partners are not liable for estafa of money or property received for the partnership when the business commenced and profits accrued. Failure of partner to account for partnership funds may give rise to civil obligation only, not estafa.
The mere failure to return the thing received for safekeeping or under any other obligation w/ the duty to return the same or deliver the value thereof to the owner could only give rise to a civil action and does not constitute the crime of estafa.
Exception: When a partner misappropriates the share of another partner in the profits, the act constitutes estafa.
There is no estafa through negligence. The gravity of the crime of estafa is based on the amount not returned before the institution of the criminal action.
A co-owner is not liable for estafa, but he is liable if, after the termination of the coownership, he misappropriates the thing which has become the exclusive property of the other.
Test to distinguish theft from estafa: In theft, upon the delivery of the thing to the offender, the owner expects a return of the thing to him.
Estafa with abuse of Theft confidence With juridical Only with physical / possession of thing material possession of misappropriated thing misappropriated
General rule: When the owner does not expect the immediate return of the thing he delivered to the accused, the misappropriation of the same is estafa.
Offender receives the Offender takes the thing thing from the victim
Exception: When the offender received the thing from the offended party, with the obligation to deliver it to a third person and, instead of doing so, misappropriated it to the prejudice of the owner, the crime committed is qualified theft.
But when the money or property had been received by a partner for specific purpose and he misappropriated it, there is estafa. Under the 4th element of estafa with abuse of confidence demand may be required.
Sale of thing received to be pledged for owner is theft, when the intent to appropriate existed at the time it was received.
In estafa by means of deceit, demand is not needed, because the offender obtains the thing wrongfully from the start. In estafa with abuse of confidence, the offender receives the thing under a lawful transaction.
Estafa with abuse of Malversation confidence Entrusted with funds or property
Demand is not required by law, but it may be necessary, because failure to account upon demand is circumstantial evidence of misappropriation. Presumption arises only
Both are continuing offenses
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Funds or property are Funds or property always private usually public
Estafa by Means of False Pretenses or Fraudulent Acts (315 par. 2(a) (b) (c) (d) (e); BP22):
Offender is a private Offender is a public individual or public officer accountable for officer not public funds or property accountable for public funds or property
Elements of estafa by means of deceit: (a) There is a false pretense, fraudulent act or fraudulent means. (b) Such false pretense, fraudulent act or fraudulent means was made or executed prior to or simultaneously with the commission of the fraud. (c) Offended party relied on the false pretense, fraudulent act, or fraudulent means, that is, he was induced to part with his money or property because of such (d) As a result thereof, the offended party suffered damage.
Committed by misappropriating, converting or denying having received money, other personal property
Committed by misappropriating, or thru abandonment or negligence, letting other person to take the public funds or property
There is no estafa There can be through negligence. malversation through abandonment or negligence.
The acts must be fraudulent. Acts must be founded on deceit, trick, or cheat, and such must be made prior to or simultaneously with the commission of the fraud.
When in prosecution for malversation the public officer is acquitted, the private individual in conspiracy w/ him may be held liable for estafa, depending on the nature of the funds.
In false pretenses the deceit consists in the use of deceitful words, in fraudulent acts the deceit consists principally in deceitful acts. The fraudulent acts must be performed prior to or simultaneously with the commission of the fraud.
Misappropriation of firearms received by a police (1) ESTAFA: if it is not involved in the commission of a crime (2) MALVERSATION: if it is involved in the commission of a crime.
The offender must be able to obtain something from the offended party because of the fraudulent acts.
Par.1(c): Taking advantage of signature in blank Elements: (a) Paper with the signature of the offended party is in blank. (b) Offended party delivered it to the offender. (c) Above the signature of the offended party a document is written by the offender without authority to do so. (d) The document so written creates a liability of, or causes damage to, the offended party or any third person.
Knowledge of criminal intent of the principal is essential to be convicted as an accomplice in estafa through falsification of commercial document. There must be knowing assistance in the execution of the offense. [Abejuela vs People (1991)] In a tenant-landowner relationship, it was incumbent upon the tenant to hold in trust and, eventually, account for the share in the harvest appertaining to the landowner, failing which the
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(1) be made prior to, or, at least simultaneously with, (2) the delivery of the thing by the complainant.
In [People v. Vanzuela (2008)], it was ruled that share tenancy has been outlawed for being contrary to public policy as early as 1963, with the passage of R.A. 3844. What prevails today, under R.A. 6657, is agricultural leasehold tenancy relationship, and all instances of share tenancy have been automatically converted into leasehold tenancy. In such a relationship, the tenant’s obligation is simply to pay rentals, not to deliver the landowner’s share. Given this dispensation, the petitioner’s allegation that the respondents misappropriated the landowner’s share of the harvest is untenable. Accordingly, the respondents cannot be held liable under Article 315, paragraph 4, No. 1(b) of the RPC.
It is essential that such false statement or fraudulent representation constitutes the cause or only motive which induced the complainant to part with the thing. If there be no such prior or simultaneous false statement or fraudulent representation, any subsequent act of the accused, however fraudulent and suspicious it may appear, cannot serve as a basis for prosecution for this class of estafa. A creditor who deceived his debtor is liable for estafa. In estafa by means of deceit under Art. 315 2(a), there must be evidence that the pretense of the accused is false. Without such proof, criminal intent to deceive cannot be inferred. Fraud must be proved with clear and positive evidence.
It is well established in jurisprudence that a person may be convicted of both illegal recruitment and estafa. The reason, therefore, is not hard to discern: illegal recruitment is malum prohibitum, while estafa is malum in se. [Lapasaran v. People (2009)]
Estafa through false pretenses made in writing is only a simple crime of estafa, not a complex crime of estafa through falsification.
Par 2(a): Using fictitious name or false pretenses at power, influence… or other similar deceits Ways of committing the offense: (1) By using fictitious name; (2) By falsely pretending to possess: (a) power, (b) influence, (c) qualifications, (d) property, (e) credit, (f) agency, (g) business or imaginary transactions; (3) By means of other similar deceits.
Par 2(b): by altering the quality, fineness or weight of anything pertaining to art or business Par. 2(c): by pretending to have bribed any government employee Manipulation of scale is punished under the Revised Administrative Code. Person would ask money from another for the alleged purpose of bribing a government employee but just pocketed the money.
For estafa under Art. 315 par. 2(a), it is indispensable that the false statement or fraudulent representation of the accused,
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Par 2(d): By postdating a check or issuing a bouncing check
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Good faith is a defense in a charge of estafa by postdating or issuing a check. One who got hold of a check issued by another, knowing that the drawer had no sufficient funds in the bank, and used the same in the purchase of goods, is guilty of estafa. [People v. Isleta]
Elements: (a) Offender postdated a check, or issued a check in payment of an obligation; (b) Such postdating or issuing a check was done when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check.
PD 818, which increases the penalty for estafa committed by means of bouncing checks, applies only to estafa under par 2(d) of Art. 315, and does not apply to other forms of estafa. [People v Villaraza, 81 SCRA 95] Hence, the penalty prescribed in PD 818, not the penalty provided for in Art. 315, should be imposed when the estafa committed is covered by par 2(d) of Art. 315.
The check must be genuine, and not falsified. The check must be postdated or for an obligation contracted at the time of the issuance and delivery of the check and not for pre-existing obligation.
Estafa by issuing a bad check is a continuing crime.
Exception: (1) When postdated checks are issued and intended by the parties only as promissory notes (2) When the check is issued by a guarantor
BP 22 (ANTI-BOUNCING CHECKS LAW) Punishable Acts (1) (a) A person makes or draws and issues any check to apply on account or for value; (b) He knows at the time of issuance that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment; and (c) (c)The check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment. (2) (a) A person has sufficient funds in or credit with the drawee bank when he makes or draws and issues a check;
The accused must be able to obtain something from the offended party by means of the check he issues and delivers. The mere fact that the drawer had insufficient or no funds in the bank to cover the check at the time he postdated or issued a check is sufficient to make him liable for estafa. RA 4885 deleted the phrase “the offender knowing at the time he had no funds in the bank”: (1) The failure of the drawer to deposit the amount needed to cover his check (2) Within 3 days from receipt of notice of dishonor of check for lack or insufficiency of funds (3) Shall be prima facie evidence of deceit constituting false pretense or fraudulent act. 325
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(b) He fails to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon; (c) For which reason, the check is dishonored by the drawee bank. Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable.
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In a subsequent Administrative Circular (Administrative Circular No. 13-2001 Re Clarification for Admin. Circular 12-2000), the Court clarified that: (1) A.C. 12-2000 does not remove imprisonment as an alternative penalty for violations of B.P. Blg. 22; (2) The Judges concerned may, in the exercise of sound discretion, and taking into consideration the peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve the interests of justice or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice; (3) Should only a fine be imposed and the accused be unable to pay the fine, there is no legal obstacle to the application of the Revised Penal Code provisions on subsidiary imprisonment.
Evidence of Knowledge of Insufficient Funds The making, drawing and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within (5) banking days after receiving notice that such check has not been paid by the drawee.
Double jeopardy does not apply because estafa in RPC is a distinct crime from BP 22. Deceit and damage are essential elements of RPC, which are not required in BP 22. [Nierras vs Dacuycuy (1990)]
Preference of Imposition of Fine The decision by Supreme Court in Vaca vs. CA modified the sentence imposed for violation of B.P. Blg. 22 by deleting the penalty of imprisonment and imposing only the penalty of fine in an amount double the amount of the check. In justification thereof, the Court said: Petitioner are first-time offenders. In Lim vs. People of the Philippines, the Court deleted the penalty of imprisonment and sentenced the drawer of the bounced check to the maximum of the fine allowed by B.P. Blg. 22, i.e., P200,000, and concluded that “such would best serve the ends of criminal justice. (A.C. 122000 Re: Penalty for Violation of B.P. 22)
ESTAFA THROUGH OTHER FRAUDULENT MEANS (315 PAR 3 (A) (B) (C)) Par 3 (a): By inducing another, through deceit, to sign any document Elements: (a) Offender induced the offended party to sign a document. (b) Deceit was eployed to make offended party sign the document. (c) Offended party personally signed the document. (d) Prejudice was caused.
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Offender must induce the offended party to sign the document. If offended party is willing from the start to sign the document, because the contents are different from those which the offended told the accused to state in the document, the crime is falsification.
CRIMINAL LAW
The element of damage or prejudice capable of pecuniary estimation may consist in: (1) The offended party being deprived of his money or property, as result of the fraud; (2) Disturbance in property right; or (3) Temporary prejudice
There can be no conviction for estafa in the absence of proof that defendant made statements tending to mislead complainant.
Payment subsequent to the commission of estafa does not extinguish criminal liability or reduce the penalty.
Par.3 (b): By resorting to some fraudulent practice to ensure success in a gambling game
The crime of estafa is not obliterated by acceptance of promissory note. A private person who procures a loan by means of deceit through a falsified public document of mortgage, but paid loan within the period agreed upon, is not guilty of estafa but only falsification of a public document.
Par.3 (c): By removing, concealing or destroying any court record, office files, document or any other papers Elements: (a) There are court record, office files, documents or any other papers. (b) The offender removed, concealed or destroyed any of them. (c) The offender had Intent to defraud another.
Accused cannot be convicted of estafa with abuse of confidence if charged w/ estafa by means of deceit
ARTICLE 316 - OTHER SWINDLING AND DECEITS
If there is no malicious intent to defraud, the destruction of court record is malicious mischief.
FORMS
OF
Offender is a private Offender is a public person OR a public person entrusted person not entrusted w/ with the documents documents
Par 1. By conveying, selling, encumbering, or mortgaging any real property, pretending to be the owner of the same Elements: (a) The thing is immovable, such as a parcel of land or a building. (b) Offender who is not the owner of said property represents that he is the owner thereof. (c) Offender executed an act of ownership (selling, encumbering or mortgaging the real property). (d) The act was made to the prejudice of the owner or a third person.
There is intent to defraud Intent to defraud is not required
The thing disposed of must be real property. If it is chattel, crime is Estafa.
Elements of deceit and abuse of confidence may co-exist. If there is neither deceit nor abuse of confidence, it is not estafa, even if there is damage. There is only civil liability. Deceit through Infidelity in Custody Fraudulent Means of Documents
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Usurious loan with equitable mortgage is not an encumbrance on the property.
There must be existing real property. Even if the deceit is practiced against the second purchaser but damage is incurred by the first purchaser, there is violation of par.1 of Art. 316.
If 3rd element not established, there is no crime. There must be damage caused. It is not necessary that act prejudice the owner of the land.
Since the penalty is based on the “value of the damage” there must be actual damage caused.
The omitted phrase “as free from encumbrance” in par 2 of Art. 316 is the basis of the ruling that silence as to such encumbrance does not involve a crime.
Par. 2. By disposing of real property as free from encumbrance, although such encumbrance be not recorded Elements: (a) The thing disposed of is real property. (b) Offender knew that the real property was encumbered, whether the encumbrance is recorded or not. (c) There was express representation by the offender that the real property is free from encumbrance. (d) Act of disposing of the real property was made to the damage of another.
Par. 3. By wrongfully taking by the owner of his personal property from its lawful possessor Elements: (a) Offender is the owner of personal property. (b) Said property is in the lawful possession of another. (c) Offender wrongfully takes it from its lawful possessor. (d) Prejudice is thereby caused to the lawful possessor or third person.
Act constituting the offense is disposing of the real property representing that it is free from encumbrance. “Dispose” – mortgaging.
includes
encumbering
CRIMINAL LAW
Offender must wrongfully take the personal property from the lawful possessor. Wrongfully take does not include the use of violence or intimidation.
or If the thing is taken by means of violence, without intent to gain, it is not estafa, but grave coercion.
“Encumbrance” – includes every right or interest in the land which exists in favor of third persons.
If the owner took the personal property from its lawful possessor without the latter’s knowledge and later charged him with the value of the property, the crime is theft. If there is intent to charge the bailee with its value, the crime is robbery. [US v Albao]
The offended party would not have granted the loan had he known that the property was already encumbered. When the loan had already been granted when defendant offered the property as security for the loan, Art. 316 par. 2 is not applicable.
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Par. 4. By executing any fictitious contract to the prejudice of another Elements: (a) Offender executes a contract (b) Contract is fictitious (c) Prejudice is caused.
CRIMINAL LAW
(c)
He sells, mortgages, or, in any other manner encumbers said real property. (d) That such sale, mortgage, or encumbrance is (1) Without express authority from the court, or (2) Made before the cancellation of his bond, or (3) Before being relieved from the obligation contracted by him.
Illustration: A person who simulates a conveyance of his property to another to defraud his creditors. If the conveyance is real and not simulated, the crime is fraudulent insolvency.
There must be damage caused under Art. 316.
Par. 5. By accepting any compensation for services not rendered or for labor not performed Elements: (a) Offender accepts any compensation for services or labor (b) He did not render any service or perform any labor
Estafa under PD 1689: Increasing the Penalty for Certain Forms of Swindling or Estafa Syndicated estafa (1) Estafa or other forms of swindling as defined by Art. 315 and 316 RPC was committed; (2) The swindling is committed by a syndicate consisting of five or more persons formed with the intention of carrying the unlawful or illegal act/transaction/enterprise/scheme; and (3) The defraudation results in the misappropriation of money contributed by stockholders, or members of rural banks, cooperative, “samahang nayon(s)”, or farmers association, or of funds solicited by corporations/associations from the general public. Penalty: Life imprisonment to death
There must be fraud. Otherwise, it will only be solutio indebiti, with civil obligation to return the wrong payment. If the money in payment of a debt was delivered to a wrong person, Art. 316 par 5 is not applicable. In case the person who received it later refused or failed to return it to the owner of the money, Art. 315 subdivision 1(b) is applicable. Par. 6. By selling, mortgaging or encumbering real property or properties with which the offender guaranteed the fulfilment of his obligation as surety Elements: (a) Offender is a surety in a bond given in a criminal or civil action. (b) He guaranteed the fulfillment of such obligation with his real property or properties.
Large-scale Estafa (1) Estafa or other forms of swindling as defined by Art. 315 and 316 RPC was committed; (2) The swindling is NOT committed by a syndicate as defined above; (3) The defraudation results in the misappropriation of money contributed by stockholders, or members of rural banks, cooperative, “samahang nayon(s)”, or 329
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farmers association, or of funds solicited by corporations/associations from the general public; and (4) Amount of fraud exceeds Php. 100,000 Penalty: Reclusion temporal to reclusion perpetua
CRIMINAL LAW
The deceits in this article include false pretenses and fraudulent acts. Chattel Mortgage The object of the Chattel Mortgage Law is to give the necessary sanction to the statute, so that mortgage debtors may be deterred from violating its provisions and mortgage creditors may be protected against loss or inconvenience from wrongful removal or sale of mortgaged property.
ARTICLE 317 - SWINDLING OF A MINOR Elements: (a) Offender takes advantage of the inexperience or emotions or feelings of a minor. (b) He induces such minor (1) to Assume an obligation, or (2) to Give release, or (3) to Execute a transfer of any property right. (c) That the consideration is (1) some loan of money, (2) Credit, or (3) Other personal property. (d) That the transaction is to the detriment of such minor.
CHAPTER 7: CHATTEL MORTGAGE ARTICLE 319 - REMOVAL, SALE, OR PLEDGE OF MORTGAGED PROPERTY Acts punishable under Art. 319: (1) By knowingly removing any personal property mortgaged under the Chattel Mortgage Law to any province or city other than the one in which it was located at the time of execution of the mortgage, without the written consent of the mortgagee or his executors, administrators or assigns. (2) By selling or pledging personal property already pledged, or any part thereof, under the terms of the Chattel Mortgage Law, without the consent of the mortgagee written on the back of the mortgage and noted on the record thereof in the office of the register of deeds of the province where such property is located.
Real property is not included because only money, credit and personal property are enumerated, and because a minor cannot convey real property without judicial authority.
ARTICLE 318 - OTHER DECEITS Acts punished: (1) By defrauding or damaging another by any other deceit not mentioned in the preceding articles. (2) By interpreting dreams, by making forecasts, by telling fortunes, or by taking advantage of the credulity of the public in any other manner, for profit or gain.
Chattel mortgage must be valid and subsisting. If chattel mortgage does not contain an affidavit of good faith and is not registered, it is void and cannot be prosecuted under Art 319
Any other kind of conceivable deceit may fall under this article. As in other cases of estafa, damage to the offended party is required.
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Elements of knowingly removing mortgaged personal property: (a) Personal property is mortgaged under the Chatter Mortgage Law. (b) Offender knows that such property is so mortgaged. (c) He removes such mortgaged personal property to any province or city other than the one in which it was located at the time of the execution of the mortgage. (d) The removal is permanent. (e) There is no written consent of the mortgagee or his executors, administrators or assigns to such removal.
CRIMINAL LAW
The consent of the mortgagee must be (1) in writing, (2) on the back of the mortgage, and (3) noted on the record thereof in the office of the register of deeds. Damage is NOT essential. Chattel mortgage may give rise to estafa by means of deceit. Art 319
Art 316 Estafa
In both there is selling of a mortgaged property.
A person other than the mortgagor who removed the property to another province, knowing it to be mortgaged, may be liable. The removal of the mortgaged personal property must be coupled with intent to defraud. No felonious intent if transfer of personal property is due to change of residence. If the mortgagee opted to file for collection, not foreclosure, abandoning the mortgage as basis for relief, the removal of property to another province is not a violation of Art 319 par1.
Personal property
Property involved is real property(Art. 316 par 2)
Committed by the mere failure to obtain consent of the mortgagee in writing, even if offender should inform the purchaser that the thing sold is mortgaged
Committed by selling real property mortgaged as free, even though the vendor may have obtained the consent of the mortgagee in writing.
Purpose: to protect the Purpose: to protect the mortgagee purchaser (1st or 2nd)
In estafa, the property involved is real property. In sale of mortgaged property, it is personal property.
CHAPTER 8: ARSON AND OTHER CRIMES INVOLVING DESTRUCTION
Elements of selling or pledging personal property already pledged: (a) Personal property is already pledged under the terms of the Chattel Mortgage Law. (b) The offender, who is the mortgagor of such property, sells or pledges the same or any part thereof. (c) There is no consent of the mortgagee written on the back of the mortgage and noted on the record thereof in the office of the register of deeds.
Articles 320-326-B have been repealed by PD 1613 (Amending the Law on Arson)
KINDS OF ARSON: (1) Arson (PD 1613, Sec. 1) (2) Destructive arson (Art. 320, as amended by RA 7659) (3) Other cases of arson (Sec. 3, PD 1613)
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PD 1613, §1. ARSON
How is the crime of Arson proved?
Section 1. Arson. Any person who burns or sets fire to the property of another shall be punished by Prision Mayor.
In the prosecution for Arson, proof of the crime charged is complete where the evidence establishes: (1) the corpus delicti, i.e., a fire because of criminal agency; and (2) the identity of the defendant as the one responsible for the crime.
The same penalty shall be imposed when a person sets fire to his own property under circumstances which expose to danger the life or property of another.
In Arson, the corpus delicti rule is satisfied by proof of the bare fact of the fire and of it having been intentionally caused. [Gonzales, Jr. v. People, 2007]
Attempted, Frustrated, and Consummated Arson Attempted arson – A person, intending to burn a wooden structure, collects some rags, soaks them in gasoline and places them beside the wooden wall of the building. When he was about to light a match to set fire to the rags, he is discovered by another who chases him away. In attempted arson, it is not necessary that there be a fire.
PD 1613, §2. DESTRUCTIVE ARSON SEC. 2. Destructive Arson—The penalty of Reclusion Temporal in its maximum period to Reclusion Perpetua shall be imposed if the property burned is any of the following: (1) Any ammunition factory and other establishment where explosives, inflammable or combustible materials are stored. (2) Any archive, museum, whether public or private, or any edifice devoted to culture, education or social services. (3) Any church or place of worship or other building where people usually assemble. (4) Any train, airplane or any aircraft, vessel or watercraft, or conveyance for transportation of persons or property. (5) Any building where evidence is kept for use in any legislative, judicial, or administrative or other official proceeding. (6) Any hospital, hotel, dormitory, lodging house, housing tenement, shopping center, public or private market, theater or movie house or any similar place or building. (7) Any building, whether used as a dwelling or not, situated in a populated or congested area.
Frustrated arson – If that person is able to light or set fire to the rags, but the fire was put out before any part of the building was burned. Consummated arson – If before the fire was put out, it had burned a part of the building. If the property burned is an inhabited house or dwelling, it is not required that the house be occupied by one or more persons and the offender knew it when the house was burned. No complex crime of arson with homicide. If by reason of or on the occasion of arson death results, the penalty of reclusion perpetua to death shall be imposed. Homicide is absorbed. Any of 7 circumstances in Sec. 6 of PD 1613 is sufficient to establish fact of arson if unexplained.
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SEC. 3. Other Cases of Arson—The penalty of Reclusion Temporal to Reclusion Perpetua shall be imposed if the property burned is any of the following: (1) Any building used as offices of the government or any of its agencies (2) Any inhabited house or dwelling (3) Any industrial establishment, shipyard, oil well or mine shaft, platform or tunnel (4) Any plantation, farm, pasture land, growing crop, grain field, orchard, bamboo grove or forest; (5) Any rice mill, sugar mill, cane mill or mill central (6) Any railway or bus station, airport, wharf or warehouse
CRIMINAL LAW
are two separate and distinct crimes committed – Homicide/Murder and Arson
CHAPTER 9 MALICIOUS MISCHIEF Malicious Mischief – It is the willful causing of damage to another’s property for the sake of causing damage because of hate, revenge or other evil motive.
ARTICLE 327 - WHO ARE RESPONSIBLE Elements of malicious mischief: (a) Offender deliberately caused damage to the property of another. (b) Such act does not constitute arson or other crimes involving destruction (c) The act of damaging another’s property was committed merely for the sake of damaging it.
Article 320, RPC, as amended, with respect to destructive arson, and the provisions of PD 1613 respecting other cases of arson provide only one penalty for the commission of arson, whether destructive or otherwise, where death results therefrom. The raison d’etre is that arson is itself the end and death is simply the consequence.
If there is no malice in causing damage, the obligation to pay for the damages is only civil (Art. 2176) Damage means not only loss but also diminution of what is a man’s own. Thus, damage to another’s house includes defacing it. [People v Asido]
In cases where both burning and death occur, in order to determine what crime/crimes was/were perpetrated – whether arson, murder, or arson and homicide/murder, it is de rigueur to ascertain the main objective of the malefactor: (a) if the main objective is the burning of the building or edifice, but death results by reason or on the occasion of arson, the crime is simply Arson, and the resulting homicide is absorbed; (b) if, on the other hand, the main objective is to kill a particular person who may be in a building or edifice, when fire is resorted to as the means to accomplish such goal, the crime committed is Murder only; and lastly, (c) if the objective is, likewise, to kill a particular person, and in fact the offender has already done so, but fire is resorted to as means to cover up the killing, then there
ARTICLE 328 - SPECIAL CASES OF MALICIOUS MISCHIEF Special cases of malicious mischief: (qualified malicious mischief) (1) Causing damage to obstruct the performance of public functions (2) Using any poisonous or corrosive substance (3) Spreading infection or contagion among cattle (4) Causing damage to property of the National Museum or National Library, or to any archive or registry, waterworks, road, promenade, or any other thing used in common by the public. 333
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ARTICLE 331 – DESTROYING OR DAMAGING STATUES, PUBLIC MONUMENTS OR PAINTINGS
ARTICLE 329 - OTHER MISCHIEFS Other mischiefs not included in Art. 328 are punished based on value of the damage caused.
Acts punished: (1) Destroying or damaging statues or any other useful or ornamental public monument (2) Destroying or damaging any useful or ornamental painting of a public nature.
If the amount involved cannot be estimated, the penalty of arresto menor or fine not exceeding P200 is fixed by law. When several persons scattered coconut remnants which contained human excrement on the stairs and floor of the municipal building, including its interior, the crime committed is malicious mischief under Art. 329. [People v Dumlao]
ARTICLE 330 DAMAGE OBSTRUCTION TO MEANS COMMUNICATION
CRIMINAL LAW
The penalty is lower if the thing destroyed is a public painting, rather than a public monument.
CHAPTER 10: EXEMPTION CRIMINAL LIABILITY
AND OF
FROM
ARTICLE 332 - EXEMPTION FROM CRIMINAL LIABILITY IN CRIMES AGAINST PROPERTY
Committed by damaging any railway, telegraph, or telephone lines. If the damage shall result in any derailment of cars, collision, or other accident, a higher penalty shall be imposed. (Qualifying Circumstance)
Crimes involved in the exemption: (1) Theft (2) Swindling (estafa) (3) Malicious mischief If the crime is robbery, exemption does not lie.
Telegraph/phone lines must pertain to railways.
Persons exempt from criminal liability: (1) Spouses, ascendants and descendants, or relatives by affinity in the same line. (2) The widowed spouse with respect to the property which belonged to the deceased spouse before the same passed into the possession of another. (3) Brothers and sisters and brothers-in-law and sisters-in-law, if living together.
Q: What is the crime when, as a result of the damage caused to railway, certain passengers of the train are killed? A: It depends. Art. 330 says “without prejudice to the criminal liability of the offender for other consequences of his criminal act.” If there is no intent to kill, the crime is “damages to means of communication” with homicide because of the first paragraph of Art. 4 and Art. 48.
The law recognizes the presumed co-ownership of the property between the offender and the offended party. There is no criminal, but only civil liability.
If there is intent to kill, and damaging the railways was the means to accomplish the criminal purpose, the crime is murder
Art. 332 does not apply to a stranger who participates in the commission of the crime. 334
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ARTICLE 333 - ADULTERY Stepfather and stepmother are included as ascendants by affinity. [People v Alvarez; People v Adame]
Elements: (a) The woman is married; (b) She has sexual intercourse with a man not her husband; (c) As regards the man with whom she has sexual intercourse: he knows her to be married.
Guevarra: An adopted or natural child should also be considered as included in the term “descendants” and a concubine or paramour within the term “spouses”.
LEGENDS: H – husband; W – wife; M - marriage Offenders: Married woman and/or the man who has carnal knowledge of her, knowing her to be married, even if the M be subsequently declared void. It is not necessary that there be a valid M (i.e. void ab initio)
Art. 332 also applies to common-law spouses. [Art. 144, CC; People v Constantino] See again: RA 9372: Human Security Act on Punishable Acts of Terrorism, supra
Title XI. Crimes against Chastity
Essence of adultery: violation of the marital vow Gist of the crime: the danger of introducing spurious heirs into the family, where the rights of the real heirs may be impaired and a man may be charged with the maintenance of a family not his own. (US v. Mata)
(1) (2) (3) (4) (5) (6)
Art. 333: Adultery Art. 334: Concubinage Art. 336: Acts of Lasciviousness Art. 337: Qualified Seduction Art. 338: Simple Seduction Art. 339: Acts of Lasciviousness with the consent of the offended party (7) Art. 340: Corruption of minors (8) Art. 341: White Slave Trade (9) Art. 342: Forcible Abduction (10) Art. 343: Consented Abduction (11) Art. 344: Prosecution of the crimes of Adultery (12) Art. 345: Civil Liability (13) Art. 346: Liability of ascendants, guardians, teachers, or other persons entrusted with custody of the offended party
The offended party must be legally married to the offender at the time of the filing of the complaint, even if the marriage be subsequently declared void. Each sexual intercourse constitutes a crime of adultery. Abandonment without justification is not exempting, but only mitigating. Both defendants are entitled to this mitigating circumstance. The man, to be guilty of adultery, must have knowledge of the married status of the woman. A married man who is not liable for adultery, because he did not know that the woman is married, may be held liable for concubinage. 335
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Agreement to separate may be used as evidence to show consent by the husband to the infidelity of his wife.
Acquittal of one of the defendants does not operate as a cause of acquittal of the other. Under the law, there is no accomplice in adultery.
Effect of death of paramour: Offending wife may still be prosecuted. The requirement that both offenders should be included in the complaint is absolute only when the two offenders are alive.
Direct proof of carnal knowledge is not necessary. Circumstantial evidence is sufficient. (i.e. love letters signed by the paramour, photos showing intimate relations, testimony of witnesses)
Effect of death of offended party: The proceedings may continue. Art. 353 seeks to protect the honor and reputation not only of the living but of dead persons as well.
Pardon by the H does not exempt the adulterous W and her paramour from criminal liability for adulterous acts committed subsequent to such pardon, because the pardon refers to previous and not to subsequent adulterous acts
ARTICLE 334 - CONCUBINAGE Elements: (1) The man is married; (2) He is either: (a) keeping a mistress in the conjugal dwelling; (b) Having sexual intercourse under scandalous circumstance with a woman not his wife; (c) Cohabiting with her in any other place; (3) As regards the woman, she knows him to be married.
Effect of Pardon - applies to Concubinage as well: (1) The pardon must come before the institution of the criminal prosecution; and (2) Both the offenders must be pardoned by the offended party. Act of sexual intercourse subsequent to adulterous conduct is considered as an implied pardon. (3) Pardon of the offenders by the offended party is a bar to prosecution for adultery or concubinage. (4) Delay in the filing of complaint, if satisfactorily explained, does not indicate pardon.
Offenders: married man and the woman who knows him to be married. The woman only becomes liable if she knew him to be married prior to the commission of the crime.
Effect of consent: The husband, knowing that his wife, after serving sentence for adultery, resumed living with her co-defendant, did nothing to interfere with their relations or to assert his rights as husband. The second charge of adultery should be dismissed because of consent. [People v. Sensano and Ramos]
In the 3rd way of committing the crime, mere cohabitation is sufficient; Proof of scandalous circumstances not necessary. [People v. Pitoc, et. al.] A married man is not liable for concubinage for mere sexual relations with a woman not his wife. A man would only be guilty of concubinage if he appeared to be guilty of any of the acts punished in Art. 334. 336
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A married man who is not liable for adultery because he did not know that the woman was married, may be held liable for concubinage. If the woman knew that the man was married, she may be held liable for concubinage as well.
CRIMINAL LAW
Scandal produced by the concubinage of H: (1) H and mistress live in the same room of a house (2) They appear together in public, (3) Perform acts in sight of the community which give rise to criticism and general protest among the neighbors.
Mistress – a woman taken by the accused to live with him in the conjugal dwelling as his mistress/concubine. [People v. Bacon and People v. Hilao]
When spies are employed for the purpose of watching the conduct of the accused and it appearing that none of the people living in the vicinity has observed any suspicious conduct, there is no evidence of scandalous circumstances. [US v. Campos Rueda]
Keeping a mistress in the conjugal dwelling – no positive proof of sexual intercourse is necessary Conjugal Dwelling – the home of the H and the W even if the wife appears to be temporarily absent on any account.
Reason: Adultery is punished more severely than concubinage because adultery makes possible the introduction of another man’s offspring into the family so that the offended H may have another man’s son bearing H’s name and receiving support from him.
The dwelling of the spouses was constructed from the proceeds of the sale of their conjugal properties. The fact that W never had a chance to reside therein and that H used it with his mistress instead, does not detract from its nature. [People v. Cordova (1959)]
ARTICLE 336 - ACTS OF LASCIVIOUSNESS Elements: (a) The offender commits any act of lasciviousness or lewdness; (b) The act is committed against a person of either sex; (c) It is done under any of the ff. circumstances: (1) By using force or intimidation; or (2) When the offended party is deprived of reason or otherwise unconscious; (3) By means of fraudulent machination or grave abuse of authority (4) When the offended party is under 12 years of age or is demented.
Cohabit – to dwell together as H and W for a period of time (i.e. A week, a month, year or longer) Scandalous circumstances – Scandal consists in any reprehensible word or deed that offends public conscience, redounds to the detriment of the feelings of honest persons, and gives occasion to the neighbors’ spiritual damage or ruin. [People v. Santos] It is only when the mistress is kept elsewhere (outside the conjugal dwelling) that “scandalous circumstances” become an element of the crime. [US v. Macabagbag]
Lewd – obscene, lustful, indecent, lecherous; signifies form of immorality which has relation to moral impurity or that which is carried in wanton manner
Qualifying expression: Sexual act which may be proved by circumstantial evidence 337
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Motive of lascivious acts is not important because the essence of lewdness is in the very act itself.
Same means of committing the crime: (1) Force, threat, or intimidation is employed; or (2) By means of fraudulent machination or grave abuse of authority; or (3) The offended party is deprived of reason or otherwise unconscious; or (4) Victim is under 12 yrs. of age or is demented
Example: If the kissing etc. was done inside church (which is a public place), absence of lewd designs may be proven, and the crime is unjust vexation only. But if the kissing was done in the house of a woman when she was alone, the circumstances may prove the accused’s lewd designs. Absent any of the circumstances of rape under the 3rd element, the crime is UNJUST VEXATION. (e.g. touching of breast) Lascivious intent is implied from the nature of the act and the surrounding circumstances.
Offended party is a person of either sex.
Consider the act and the environment to distinguish between Acts of Lasciviousness and Attempted Rape. Desistance in the commission of attempted rape may constitute acts of lasciviousness. No attempted lasciviousness.
and
frustrated
acts
The performance of acts of lascivious character Acts performed do not indicate that the accused was to lie w/ the offended party.
of
Grave Coercion
Compulsion or force is included in the constructive element of force.
Compulsion or force is the very act constituting the offense of grave coercion.
Must be accompanied by acts of lasciviousness or lewdness.
Moral compulsion amounting to intimidation is sufficient.
Abuses against chastity (Art. 245) v Acts of lasciviousness (Art. 336) Offenses Chastity
against Abuses Chastity
against
Committed by a private Committed by a public individual, in most officer only cases Some act of Mere immoral or lasciviousness should indecent proposal have been executed by made earnestly and
Acts of Lasciviousness v. Attempted Rape Acts of Lasciviousness
Acts performed clearly indicate that the accused’s purpose was to lie w/ the offended woman.
Lascivious acts are the Lascivious acts are final objective sought only the preparatory by the offender. acts to the commission of rape.
Acts of Lasciviousness v. Grave Coercion Acts of Lasciviousness
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“Lascivious conduct” is defined under Section 2 (h) of the rules and regulations of RA 7610 as: (1) The intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, OR the introduction of any object into the genitalia, anus or mouth, of any person, (2) whether of the same or opposite sex, (3) with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, (4) bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person
The accused followed the victim, held her, embraced her, tore her dress, and tried to touch her breast. When a complaint for acts of lasciviousness was filed against him, accused claimed that he had no intention of having sexual intercourse with her and that he did the acts only as revenge. TC found the accused guilty of FRUSTRATED ACTS OF LASCIVIOUSNESS. SC held that there is no frustrated crime against chastity which includes acts of lasciviousness, adultery, and rape. [People v. Famularcano]
Comparison with art. 366, RPC Acts of lasciviousness is punished under RA 7610 when performed on a child below 18 years of age exploited in prostitution or subjected to other sexual abuse.
From the moment the offender performs all the elements necessary for the existence of the felony, he actually attains his purpose. Motive of revenge is of no consequence since the element of lewdness is in the very act itself. Example: Compelling a girl to dance naked before a man is an act of lasciviousness, even if the dominant motive is revenge, for her failure to pay a debt.
See discussion above for other acts of abuse The sweetheart theory applies in acts of lasciviousness and rape, felonies committed against or without the consent of the victim. It operates on the theory that the sexual act was consensual. It requires proof that the accused and the victim were lovers and that she consented to the sexual relations.
TWO KINDS OF SEDUCTION: (1) Qualified seduction (Art. 337) (2) Simple seduction (Art. 338) “Lascivious Conduct” under RA 7610 The elements of sexual abuse under Section 5 (b) of RA 7610 that must be proven in addition to the elements of acts of lasciviousness are as follows: (1) The accused commits the act of sexual intercourse or lascivious conduct. (2) The said act is performed with a child exploited in prostitution or subjected to other sexual abuse. (3) The child, whether male or female, is below 18 years of age. [Navarrete vs. People (2007)]
For purposes of sexual intercourse and lascivious conduct in child abuse cases under RA 7610, the sweetheart defense is unacceptable. A child exploited in prostitution or subjected to other sexual abuse cannot validly give consent to sexual intercourse with another person. [Malto v. People (2007)]
ARTICLE 337 - QUALIFIED SEDUCTION Seduction - enticing a woman to unlawful sexual intercourse by promise of marriage or 339
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other means of persuasion without use of force. It applies when there is abuse of authority (qualified seduction) or deceit (simple seduction).
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crime of rape is present, the crime is not to be punished under Art. 337. The accused charged with rape cannot be convicted of qualified seduction under the same information.
Two classes of Qualified Seduction and their elements: (1) Seduction of a virgin over 12 years and under 18 years of age by certain persons such as, a person in authority, priest, teacher or any person who, in any capacity shall be entrusted with the education or custody of the woman seduced.
Offenders in Qualified Seduction: (1) Those who abused their authority: (a) Person in public authority; (b) Guardian; (c) Teacher; (2) Person who, in any capacity, is entrusted with the education or custody of the woman seduced. (a) Those who abused confidence reposed in them: (b) Priest; (c) House servant; (d) Domestic (3) Those who abused their relationship: (a) Brother who seduced his sister; (b) Ascendant who seduced his descendant.
Elements: (a) Offended party is a virgin, which is presumed if she is unmarried and of good reputation; (b) She is over 12 and under 18 yrs. of age; (13-17 years 11 months 29 days) (c) Offender has sexual intercourse with her; (d) There is abuse of authority, confidence, or relationship on the part of the offender. (2) Seduction of a sister by her brother, or descendant by her ascendant, regardless
“Domestic” - a person usually living under the same roof, pertaining to the same house.
of her age or reputation. Elements (a) Offended party need not be a virgin or she may be over 18 years old (b) Offender has sexual intercourse with her (c) Offender is her brother or ascendant by consanguinity, whether legitimate or illegitimate.
Not necessary that the offender be the teacher of the offended party; it is sufficient that he is a teacher in the same school.
Virgin - a woman of chaste character and of good reputation. The offended party need not be physically a virgin.
Qualified seduction of a sister or descendant, also known as INCEST, is punished by a penalty next higher in degree.
If there is no sexual intercourse and only acts of lewdness are performed, the crime is acts of lasciviousness. If any of the circumstances in the
The age, reputation, or virginity of the sister or descendant is irrelevant. The relationship need not be legitimate.
Qualified seduction may also be committed by a master to his servant, or a head of the family to any of its members.
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A 15-year old virgin, who was brought by her mother to the house of the accused and his wife to serve as a helper, repeatedly yielded to the carnal desires of the accused, as she was induced by his promises of marriage and frightened by his acts of intimidation.
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(2) over 12 but under 18 yrs. of age However, an acquittal for CONSENTED ABDUCTION will not preclude the filing of a charge for QUALIFIED SEDUCTION because the elements of the two crimes are different. [Perez v. CA]
HELD: DECEIT, although an essential element of ordinary or simple seduction, does not need to be proved or established in a charge of qualified seduction. It is replaced by ABUSE OF CONFIDENCE. [People v. Fontanilla]
NOTE: The fact that the girl gave consent to the sexual intercourse is not a defense.
ARTICLE 338 - SIMPLE SEDUCTION
The accused, a policeman, brought a 13-year old girl with low mentality, to the ABC Hall where he succeeded in having sexual intercourse with her. The complaint did not allege that the girl was a virgin. The accused was charged with RAPE but convicted of QUALIFIED SEDUCTION.
Elements: (a) Offended party is over 12 and under 18 years of age; (b) She is of good reputation, single or widow; (c) Offender has sexual intercourse with her; (d) It is committed by means of deceit.
HELD: Though it is true that virginity is presumed if the girl is over 12 but under 18, unmarried and of good reputation, virginity is still an essential element of the crime of qualified seduction and must be alleged in the complaint. Accused is guilty of RAPE, considering the victim’s age, mental abnormality and deficiency. There was also intimidation with the accused wearing his uniform. [Babanto v. Zosa]
Purpose of the law - To punish the seducer who by means of promise of marriage, destroys the chastity of an unmarried female of previous chaste character Virginity of offended party is not essential, good reputation is sufficient. Virginity of offended party is not required. Deceit generally takes the form of unfulfilled promise of marriage. Promise of marriage must be the inducement and the woman must yield because of the promise or other inducement.
Perez succeeded in having sexual intercourse with Mendoza after he promised to marry her. As he did not make good on said promise, Mendoza filed a complaint for Consented Abduction. Trial Court found that the acts constituted seduction, acquitting him on the charge of Consented Abduction. Mendoza then filed a complaint for Qualified Seduction. Perez moved to dismiss the case on the grounds of double jeopardy. HELD: There are similar elements between consented abduction and qualified seduction, namely: (1) the offended party is a virgin, and
What about unfulfilled promise of material things, as when the woman agrees to sexual intercourse in exchange for jewelry? This is not seduction because she is a woman of loose morals. Promise of marriage after sexual intercourse does not constitute deceit. Promise of marriage by a married man is not a deceit, if the woman knew him to be married. 341
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Elements: (a) Offender promotes or facilitates the prostitution or corruption of persons under age (minors), (b) Purpose is to satisfy the lust of another
Seduction is not a continuing offense.
ARTICLE 339 - ACTS OF LASCIVIOUSNESS WITH THE CONSENT OF THE OFFENDED PARTY
Habituality or abuse of authority or confidence is not necessary.
Elements: (a) Offender commits acts of lasciviousness or lewdness; (b) The acts are committed upon a woman who is a virgin or single or widow of good reputation, under 18 yrs. of age but over 12 yrs., or a sister or descendant, regardless of her reputation or age; (c) The offender accomplishes the acts by abuse of authority, confidence, relationship, or deceit.
It is not necessary that the unchaste acts shall have been done. Mere proposal will consummate the offense. The victim must be of good reputation, not a prostitute or corrupted person. There is a crime of Attempted Child Prostitution. (Sec. 6, RA 7610) See again: RA 7610: Special Protection of Children against Child Abuse, Exploitation and Discrimination (supra)
It is necessary that it be committed under circumstances which would make it qualified or simple seduction had there been sexual intercourse, instead of acts of lewdness only.
ARTICLE 341 - WHITE SLAVE TRADE When the victim is under 12 yrs., the penalty shall be one degree higher than that imposed by law. (sec. 10 of R.A. 7610)
Acts punishable: (1) Engaging in business of prostitution (2) Profiting by prostitution (3) Enlisting the services of women for the purpose of prostitution.
Males cannot be the offended party. Acts of Lasciviousness Acts of Lasciviousness (Art. 336) with consent (Art. 339) Committed under circumstances w/c, had there been carnal knowledge, would amount to rape
Habituality is not a necessary element of white slave trade.
Committed under circumstances w/c, had there been carnal knowledge, would amount to either qualified or simple seduction
‘Under any pretext’ – one who engaged the services of a woman allegedly as a maid, but in reality for prostitution, is guilty under this article. Victim is under 12 yrs., penalty shall be one degree higher.
Offended party is a Offended party should female or male only be female
Offender need not be the owner of the house.
ARTICLE 340 - CORRUPTION OF MINORS
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Maintainer or manager of house of ill-repute need not be present therein at the time of raid or arrest.
The taking away of the woman may be accomplished by means of deceit first and then by means of violence and intimidation.
Corruption of Minors
If the female abducted is under 12, the crime is forcible abduction, even if she voluntarily goes with her abductor.
Minority essential
of
White Slave Trade
victims Minority is not required to
When the victim was abducted by the accused without lewd designs, but for the purpose of lending her to illicit intercourse with others, the crime is not abduction but corruption of minors.
Committed by a single Generally committed act habitually
Rape may absorb forcible abduction, if the main objective was to rape the victim.
TWO KINDS OF ABDUCTION:
Sexual intercourse is not necessary in forcible abduction.
Victims may be male or Applies female females
only
May not necessarily be Generally for profit for profit
(1) Forcible abduction (Art. 342) (2) Consented abduction (Art. 343)
Lewd designs may be shown by the conduct of the accused. When there are several defendants, it is enough that one of them had lewd designs. Husband is not liable for abduction of his wife, as lewd design is wanting.
ARTICLE 342 - FORCIBLE ABDUCTION Elements: (a) The person abducted is any woman, regardless of her age, civil status or reputation; (b) The abduction is against her will; (c) The abduction is with lewd designs.
Attempt to rape is absorbed in the crime of forcible abduction, thus there is no complex crime of forcible abduction with attempted rape. Nature of the crime - The act of the offender is violative of the individual liberty of the abducted, her honor and reputation, and public order.
Abduction – the taking away of a woman from her house or the place where she may be for the purpose of carrying her to another place with the intent to marry or to corrupt her.
Forcible Abduction
Crimes against chastity where age and reputation are immaterial: (1) Acts of lasciviousness against the will or without the consent of the offended party (2) Qualified seduction of sister or descendant (3) Forcible abduction
Grave Coercion
There is violence or intimidation by the offender. The offended party is compelled to do something against her will.
The taking away of the woman must be against her will.
Abduction characterized 343
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lewd design.
deprivation of liberty for an appreciable length of time.
Forcible Abduction
Corruption of Minors
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abduction can only be attached to the first act of rape, detached from the 3 subsequent acts of rape. The effect therefore would be one count of forcible abduction with rape and 4 counts of rape for each of the accused. [People v. Jose]
Purpose is to effect Purpose is to lend the his lewd designs on victim to illicit the victim. intercourse with others.
The accused and 2 other men raped the victim. The victim was a jeepney passenger who was prevented from leaving the jeepney. She was taken to a remote place where she was raped.
Forcible Abduction
HELD: The accused is guilty of FORCIBLE ABDUCTION WITH RAPE. It was proven that the victim was taken against her will and with lewd design, and was subsequently forced to submit to the accused’s lust, rendering her unconscious in the process. [People v. Alburo]
Serious Illegal Detention
There is deprivation of There is deprivation of liberty and lewd liberty and no lewd designs. designs
Forcible Abduction with Rape
Kidnapping with rape
The violent taking of the Not woman is motivated by lewd motivated designs. Crime against chastity
There can only be one complex crime of forcible abduction with rape.
so
The victim witnessed the killing of another by the 2 accused. Upon seeing her, the accused dragged her to a vacant lot where they took turns in raping her. TC convicted them of rape.
Crime against liberty
Forcible Abduction with Rape - a complex crime under Art. 48, and not a special complex crime
HELD: FORCIBLE ABDUCTION is absorbed the crime of RAPE if the main objective is rape the victim. Conviction of acts lasciviousness is not a bar to conviction forcible abduction. [People v. Godines]
The victim was abducted by the accused and was brought to a hotel where the latter succeeded in having sexual intercourse with her.
in to of of
ARTICLE 343 - CONSENTED ABDUCTION
HELD: The elements of both rape and forcible abduction are proven. The presence of lewd designs in forcible abduction is manifested by the subsequent rape of the victim. [People v. Sunpongco] Maggie was abducted and brought to a hotel, where the 4 accused took turns in raping her.
Elements: (a) Offended party is a virgin; (b) She is over 12 and under 18 yrs. of age; (c) Offender takes her away with her consent, after solicitation or cajolery from the offender; (d) The taking away is with lewd designs.
HELD: While the first act of rape was being performed, the crime of forcible abduction had already been consummated, hence, forcible
Purpose of the law - Not to punish the wrong done to the girl because she consents to it, but to prescribe punishment for the disgrace to her 344
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family and the alarm caused by the disappearance of one who is, by her age and sex, susceptible to cajolery and deceit.
The offended party cannot institute criminal prosecution without including BOTH the guilty parties if they are alive. Both parties must be included in the complaint even if one of them is not guilty.
If the virgin is under 12 or is deprived of reason, the crime is forcible abduction because such is incapable of giving a valid consent.
Consent and pardon bar the filing of a criminal complaint.
The taking away of the girl need not be with some character of permanence. Offended party need not be taken from her house.
The imputation of a crime of prostitution against a woman can be prosecuted de oficio, but crimes against chastity cannot.
When there was no solicitation or cajolery and no deceit and the girl voluntarily went with the man, there is no crime committed even if they had sexual intercourse.
ARTICLE 344 - PROSECUTION PRIVATE OFFENSES (1) (2) (3) (4) (5)
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Prosecution of rape may be made upon complaint by any person.
OF
Effect of Pardon: (1) Effect of Pardon in Adultery applies also to Concubinage (2) Condonation or forgiveness of one act of adultery or concubinage is not a bar to prosecution of similar acts that may be committed by the offender in the future. Consent: (1) May be express or implied (2) Given before the adultery or concubinage was committed (3) Agreement to live separately may be evidence of consent. (4) Affidavit showing consent may be a basis for new trial.
Adultery Concubinage Seduction Abduction Acts of lasciviousness
Nature of the complaint: The complaint must be filed in court, not with the fiscal. In case of complex crimes, where one of the component offenses is a public crime, the criminal prosecution may be instituted by the fiscal. The court motu proprio can dismiss the case for failure of the aggrieved party to file the proper complaint even if the accused never raised the question on appeal.
SEDUCTION, ABDUCTION, LASCIVIOUSNESS
ACTS
OF
Seduction, abduction, or acts of lasciviousness must be prosecuted upon complaint signed by— (1) Offended party - When the offended party is a minor, her parents may file the complaint. (2) When the offended party is of age and is in complete possession of her mental and physical faculties, she alone can file the complaint.
Crimes against chastity cannot be prosecuted de oficio. ADULTERY AND CONCUBINAGE Who may file the complaint: Adultery and Concubinage must be prosecuted upon complaint signed by the offended spouse. 345
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(3) Parents, Grandparents or Guardian in that order –
and rape, extinguishes criminal action or remits the penalty already imposed.
When the offended is a minor or incapacitated and refuses to file the complaint, any of the persons mentioned could file.
Marriage (in cases of seduction, abduction, and acts of lasciviousness) extinguishes the criminal action even as to co-principals, accomplices, and accessories.
The term “guardian” refers to legal guardian. He must be legally appointed by the Court.
Marriage must be entered into in good faith.
The State may also file the complaint as parens patriae when the offended party dies or becomes incapacitated before she could file the complaint and has no known parents, grandparents, or guardians
Marriage may take place AFTER criminal proceedings have commenced, or even after conviction (extinguishes criminal action and remits penalty).
ARTICLE 345: CIVIL LIABILITY OF PERSONS GUILTY OF CRIMES AGAINST CHASTITY
Effect of Pardon: (1) Offended party cannot institute criminal proceedings if the offender has been EXPRESSLY pardoned by the offended party, or her parents, grandparents or guardian. (2) Pardon by the parent, grandparent, or guardian must be accompanied by the express pardon of the offended woman. (3) The right to file action of the parents, grandparents and guardian shall be EXCLUSIVE of other persons and shall be exercised successively in the order provided. (4) Pardon by the offended party who is a minor must have the concurrence of parents, EXCEPT when the offended party has no parents.
Those guilty of rape, seduction or abduction: (1) Indemnify the offended woman (2) Acknowledge the offspring, unless the law should prevent him from doing so (3) In every case to support the offspring, EXCEPT: (a) in cases of adultery and concubinage (b) where either of the offended party or accused is married (c) when paternity cannot be determined, such as in multiple rape (d) other instances where the law prevents such The adulterer and the concubine can be sentenced only to indemnify for damages caused to the offended spouse. Acknowledgment of offsrpring is not legally possible, because only children born of parents who could marry at the time of conception may be acknowledged. Support of the offspring is also not included, because the person who gives birth is one of the offenders.
Rape complexed with another crime against chastity need NOT be signed by the offended woman, since rape is a public crime. When the evidence fails to prove a complex crime of rape with another crime, and there is no complaint signed by the offended woman, the accused CANNOT be convicted of rape. Marriage of the offender with the offended party in seduction, abduction, acts of lasciviousness
In rape of a married woman, only indemnity is allowed. 346
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ARTICLE 346 – LIABILITY OF ASCENDANTS, GUARDIANS, TEACHERS AND OTHER PERSONS ENTRUSTED WITH THE CUSTODY OF THE OFFENDED PARTY
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or recording of sexual act or any similar activity with or without consideration; (c) To sell or distribute, or cause to be sold or distributed, such photo or video or recording of sexual act, whether it be the original copy or reproduction thereof; or (d) To publish or broadcast, or cause to be published or broadcast, whether in print or broadcast media, or show or exhibit the photo or video coverage or recordings of such sexual act or any similar activity through VCD/DVD, internet, cellular phones and other similar means or device.
(1) Persons who cooperate as accomplices but are punished as principals in rape, seduction, abduction, etc. (a) Ascendants (b) Guardians (c) Curators (d) Teachers, and (2) any other person, who cooperate as accomplice with abuse of authority or confidential relationship (3) The teachers or persons entrusted with education and guidance of the youth shall also be penalized with disqualification. (4) Any person falling within the terms of this article, and any other person guilty of corruption of minors for the benefit of another, shall be punished by special disqualification from filling the office of guardian.
See again: RA 9208: Anti-Trafficking in Persons Act of 2003: Punishable acts (supra) See again: RA 9262 Anti-Violence Against Women and Their Children Act of 2004: Punishable acts (supra)
Title XII. Crimes against the Civil Status of Persons
SPECIAL LAWS
Chapter I: Simulation of Births and Usurpation of Civil Status (1) Art 347: Simulation of births, substitution of one child for another and concealment or abandonment of a legitimate child (2) Art 348: Usurpation of civil status
RA 9995: ANTI-PHOTO AND VIDEO VOYEURISM ACT OF 2009 Punishable Acts Section 4. Prohibited Acts. - It is hereby prohibited and declared unlawful for any person: (a) To take photo or video coverage of a person or group of persons performing sexual act or any similar activity or to capture an image of the private area of a person/s such as the naked or undergarment clad genitals, public area, buttocks or female breast without the consent of the person/s involved and under circumstances in which the person/s has/have a reasonable expectation of privacy; (b) To copy or reproduce, or to cause to be copied or reproduced, such photo or video
Chapter II: Illegal Marriages (1) Art 349: Bigamy (2) Art 350: Marriage contracted against provisions of law (3) Art 351: Premature marriages (4) Art 352: Performance of illegal marriage ceremony
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Concealing or abandoning any legitimate child Requisites: (1) The child must be legitimate (2) The offender conceals or abandons such child; and (3) The offender has the intent to cause such child to lose its civil status.
CHAPTER I: SIMULATION OF BIRTHS AND USURPATION OF CIVIL STATUS ARTICLE 347 - SIMULATION OF BIRTHS, SUBSTITUTION OF ONE CHILD FOR ANOTHER, AND CONCEALMENT OR ABANDONMENT OF A LEGITIMATE CHILD
The unlawful sale of a child by his father is not a crime under this article.
Mode 1. Simulation of births; Mode 2. Substitution of one child for another;
“Abandon” as used in Art. 347 - The practice of abandoning newly born infants and very young child at the door of hospitals and churches.
Mode 3. Concealing or abandoning any legitimate child with intent to cause such child to lose its civil status.
Art. 347
Art. 246
Offender: Any person Offender: The one who has the custody of the child
The object of the crime under Art. 347 is the creation of false, or the causing of loss of, civil status.
Purpose: To cause Purpose: To avoid the child to lose his obligation of rearing and civil status. caring for the child.
Simulation of birth Takes place when the woman pretends to be pregnant when in fact she is not, and on the day of the supposed delivery, takes the child of another as her own.
A physician or surgeon or public officer, who cooperates in the execution of these crimes, is also liable if he acts in violation of the duties of his profession or office.
The simulation of birth which is a crime is that which alters the civil status of a person.
ARTICLE 348 - USURPATION OF CIVIL STATUS
The fact that the child will be benefited by the simulation of its birth is not a defense.
This crime is committed when a person represents himself to be another and assumes the filiation or the parental or conjugal rights of such another person.
Substitution of one child for another This is committed when a child of a couple is exchanged with a child of another couple without the knowledge of the respective parents.
Usurpation of profession may be punished under Art. 348.
The substitution can also happen by placing a live child of a woman in place of another’s dead child.
There must be an intent to enjoy the rights arising from the civil status of another. The purpose of defrauding the offended party or his heirs qualifies the crime. 348
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The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense.
CHAPTER II: ILLEGAL MARRIAGES ARTICLE 349 – BIGAMY Elements: (a) Offender has been legally married; (b) The marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code (c) He contracts a second or subsequent marriage (d) The second or subsequent marriage has all the essential requisites for validity.
The second spouse is not necessarily liable for bigamy. Whether the second spouse should be included in the information is a question of fact that was to be determined by the fiscal who conducted the preliminary investigation. (People v. Nepomuceno, Jr., 64 SCRA 518) The second husband or wife who knew of first marriage is an accomplice.
The first marriage must be valid. The witness who falsely vouched for the capacity of either of the contracting parties is also an accomplice.
Nullity of marriage, not a defense in bigamy. The fact that the first marriage is void from the beginning is not a defense. As with voidable marriage, there must be a judicial declaration of nullity of marriage before contracting the second marriage.
Bigamy is not a private crime. Jurisprudence In Marbella-Bobis v. Bobis, we laid down the elements of bigamy thus: (1) The offender has been legally married; (2) The first marriage has not been legally dissolved, or in case his or her spouse is absent, the absent spouse has not been judicially declared presumptively dead; (3) He contracts a subsequent marriage; and (4) The subsequent marriage would have been valid had it not been for the existence of the first.
Good faith is a defense in bigamy. Failure to exercise due diligence to ascertain the whereabouts of the first wife is bigamy through reckless imprudence. One who contracted a subsequent marriage before the declaration of presumptive death of the absent spouse is guilty of bigamy. The second marriage must have all the essential requisites for validity.
Applying the foregoing test to the instant case, we note that the trial court found that there was no actual marriage ceremony performed between Lucio and Lucia by a solemnizing officer. Instead, what transpired was a mere signing of the marriage contract by the two, without the presence of a solemnizing officer.
One convicted of bigamy may also be prosecuted for concubinage as both are distinct offenses. The first is an offense against civil status, which may be prosecuted at the instance of the state; the second is an offense against chastity, and may be prosecuted only at the instance of the offended party. 349
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The first element of bigamy as a crime requires that the accused must have been legally married. But in this case, legally speaking, the petitioner was never married to Lucia Barrete. Thus, there is no first marriage to speak of.
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shall be deemed valid until declared otherwise in a judicial proceeding. In this case, even if petitioner eventually obtained a declaration that his first marriage was void ab initio, the point is, both the first and the second marriage were subsisting before the first marriage was annulled. [Abunado v. People (2004)]
Under the principle of retroactivity of a marriage being declared void ab initio, the two were never married “from the beginning.” The contract of marriage is null; it bears no legal effect.
A careful study of the disputed decision reveals that respondent Judge had been less than circumspect in his study of the law and jurisprudence applicable to the bigamy case. In his comment, respondent Judge stated: “That the accused married Manuel P. Diego in the honest belief that she was free to do so by virtue of the decree of divorce is a mistake of fact.”
Taking this argument to its logical conclusion, for legal purposes, petitioner was not married to Lucia at the time he contracted the marriage with Maria Jececha. The existence and the validity of the first marriage being an essential element of the crime of bigamy, it is but logical that a conviction for said offense cannot be sustained where there is no first marriage to speak of. The petitioner, must, perforce be acquitted of the instant charge. [Lucio Morigo v. People (2002)]
This Court, in People v. Bitdu, carefully distinguished between a mistake of fact, which could be a basis for the defense of good faith in a bigamy case, from a mistake of law, which does not excuse a person, even a lay person, from liability. Bitdu held that even if the accused, who had obtained a divorce under the Mohammedan custom, honestly believed that in contracting her second marriage she was not committing any violation of the law, and that she had no criminal intent, the same does not justify her act.
The subsequent judicial declaration of the nullity of the first marriage was immaterial because prior to the declaration of nullity, the crime had already been consummated. Moreover, petitioner's assertion would only delay the prosecution of bigamy cases considering that an accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that.
This Court further stated therein that with respect to the contention that the accused acted in good faith in contracting the second marriage, believing that she had been validly divorced from her first husband, it is sufficient to say that everyone is presumed to know the law, and the fact that one does not know that his act constitutes a violation of the law does not exempt him from the consequences thereof.
The outcome of the civil case for annulment of petitioner's marriage to Narcisa had no bearing upon the determination of petitioner's innocence or guilt in the criminal case for bigamy, because all that is required for the charge of bigamy to prosper is that the first marriage be subsisting at the time the second marriage is contracted. Thus, under the law, a marriage, even one which is void or voidable,
Moreover, squarely applicable to the criminal case for bigamy, is People v. Schneckenburger, where it was held that the accused who secured 350
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a foreign divorce, and later remarried in the Philippines, in the belief that the foreign divorce was valid, is liable for bigamy. [Diego v. Castillo (2004)]
imposed on the man who does the same. Similarly, the effect of the provision is an enforced mourning period on the part of the woman although none is imposed on the man.”
ARTICLE 350 - MARRIAGE CONTRACTED AGAINST PROVISIONS OF LAWS
BEFORE REPEAL: Persons liable: (1) A widow who is married within 301 days from the date of the death of her husband, or before having delivered if she is pregnant at the time of his death; (2) A woman who, her marriage having been annulled or dissolved, married before her delivery or before the expiration of the period of 301 days after the date of the legal separation.
Elements: (1) Offender contracted marriage; (2) He knew at the time that – (a) The requirements of the law were not complied with; or (b) The marriage was in disregard of a legal impediment.
Bigamy is a form of illegal marriage.
The purpose of the law punishing premature marriages is to prevent doubtful paternity. (People v. Rosal, 49 Phil. 509)
Illegal marriage includes also such other marriages which are performed without complying with the requirements of law, or marriages where the consent of the other is vitiated, or such marriage which was solemnized by one who is not authorized to solemnize the same.
ARTICLE 352 - PERFORMANCE ILLEGAL MARRIAGE CEREMONY
OF
PERSONS LIABLE: Priests or ministers of any religious denomination or sect, or civil authorities who shall perform or authorize any illegal marriage ceremony
Conviction of a violation of Art. 350 involves a crime of moral turpitude. (Villasanta v. Peralta)
The offender must be authorized to solemnize marriages.
ARTICLE 351 - PREMATURE MARRIAGE This provision has been repealed on 13 March 2015 when President Benigno Aquino III signed into law RA 10655. Said law reads: “Without prejudice to the provisions of the Family Code on paternity and filiation, Article 351 of the Revised Penal Code, punishing the crime of premature marriage committed by a woman, is hereby repealed.” The author of RA 10655 explained that the law on premature marriages “is discriminatory for it curtails the right of a woman to marry under the stated circumstances when no such penalty is 351
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Title XIII. Crimes against Honor
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Test of the defamatory character of words used: Whether they are calculated to induce the hearers to suppose and understand that the person against whom they (i.e. the defamatory words) were uttered was guilty of certain offenses; OR are sufficient to impeach his honesty, virtue or reputation, or to hold him up to public ridicule. (U.S. vs. O’Connell)
Chapter I: Libel (1) Art 353: Definition of Libel (2) Art 354: Privileged communication (3) Art 355: Libel by means of writings or similar means (4) Art 356: Threatening to publish and offer to prevent such publication for a compensation (5) Art. 357: Prohibited Publication of Acts Referred to in the course of Official Proceedings (6) Art 358: Slander (7) Art 359: Slander by Deed
First element: There must be an imputation of a crime, a vice or defect, real or imaginary, OR any act, omission, condition, status, or circumstance; Imputation of a criminal act may be implied from the acts and statements of the accused.
Chapter II: Incriminatory Machinations (1) Art 363: Incriminating innocent person (2) Art 364: Intriguing against honor
Imputation of criminal intention is not libelous. An expression of opinion by one affected by the act of another and based on actual fact is not libelous.
CHAPTER I LIBEL ARTICLE 353 - DEFINITION OF LIBEL
Second element: The imputation must be made publicly.
Elements: (a) There must be an imputation of– (1) a crime, (2) a vice or defect, real or imaginary, OR (3) any act, omission, condition, status, or circumstance; (b) The imputation must be made publicly; (c) It must be malicious; (d) The imputation must be directed at a natural or juridical person, or one who is dead; and (e) The imputation must tend to cause dishonor, discredit or contempt of the offended party.
Publication: communication of the defamatory matter to some third person or persons. There is no crime if the defamatory imputation is not published. Sending an unsealed libelous letter to the offended party constitutes publication. [Magno vs. People (2006)] In libel, publication means making the defamatory matter, after it is written, known to someone other than the person against whom it has been written.
Defamation is composed of: (1) Libel – written defamation (2) Slander- oral defamation (3) Slander by deed – defamation through acts
Petitioner’s subject letter-reply itself states that the same was copy furnished to all concerned. Also, petitioner had dictated the letter to his secretary. It is enough that the author of the 352
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libel complained of has communicated it to a third person. Furthermore, the letter, when found in the mailbox, was open, not contained in an envelope thus, open to public. [Buatis vs. People (2006)]
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person could and did understand that he was the person referred to. Kunkle v. Cablenews-American and Lyons laid the rule that this requirement is complied with where a third person recognized or could identify the party vilified in the article. [People vs. Ogie Diaz (2007)]
Third element: The publication must be malicious. Malice in fact – may be shown by proof of ill-will, hatred or purpose to injure.
Defamatory remarks directed at a group of persons is not actionable unless the statements are all-embracing or sufficiently specific for the victim to be identifiable.
Malice in law – presumed from a defamatory imputation. Proof of malice is not required. (Art. 354, par.1)
Libel published in different places may be taken together to establish the identification of the offended party.
But where the communication is privileged, malice is not presumed from the defamatory words.
While it is true that a publication's libelous nature depends on its scope, spirit and motive taken in their entirety, the article in question as a whole explicitly makes mention of private complainant Rivera all throughout. It cannot be said that the article was a mere general commentary on the alleged existing state of affairs at the aforementioned public market. Rivera was not only specifically pointed out several times therein but was even tagged with derogatory names. Indubitably, this namecalling was, as correctly found by the two courts below, directed at the very person of Rivera himself. [Figueroa vs. People (2006)]
Malice in law is not necessarily inconsistent with honest or laudable purpose. Even if the publication is injurious, the presumption of malice disappears upon proof of good intentions and justifiable motive. But where malice in fact is present, justifiable motive cannot exist, and the imputations become actionable. Fourth element: The imputation must be directed at a natural or juridical person, or one who is dead.
Fifth element: The imputation must tend to cause dishonor, discredit or contempt of the offended party.
In order to maintain a libel suit, it is essential that the victim be identifiable, although it is not necessary that the person be named. It is enough if by intrinsic reference the allusion is apparent or if the publication contains matters of description or reference to facts and circumstances from which others reading the article may know the person alluded to, or if the latter is pointed out by extraneous circumstances so that those knowing such
Dishonor – disgrace, shame or ignominy Discredit – loss of credit of reputation; disesteem Contempt – state of being despised For a statement to be considered malicious, it must be shown that it was written or published
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with the knowledge that they are false OR in reckless disregard of WON they were false.
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(a) any judicial, legislative or other official proceedings which are not of confidential nature, OR (b) any statement, report or speech delivered in said proceedings, OR (c) any other act performed by public officers in the exercise of their functions.
Reckless disregard – the defendant entertains serious doubt as to the truth of the publication, OR that he possesses a high degree of awareness of their probable falsity. To avoid self-censorship that would necessarily accompany strict liability for erroneous statements, rules governing liability for injury to reputation are required to allow an adequate margin of error by protecting some inaccuracies. [Borjal v. CA (1999)]
Defamatory remarks are PRESUMED malicious. The presumption of malice is REBUTTED, if it is shown by the accused that – (see discussion of Art. 361) (1) The defamatory imputation is true, IN CASE the law allows proof of the truth of the imputation; (2) It is published with good intention; AND (3) There is justifiable motive for making it
Fine preferred penalty in libel cases Administrative Circular No. 08-2008 stated the rule of preference of fine only rather than imprisonment in libel cases, having in mind the ff. principles: 1) The circular does not remove imprisonment as an alternative penalty 2) Judges may, in the exercise of their discretion, determine whether the imposition of fine alone would best serve the interest of justice. 3) Should only a fine be imposed and the accused unable to pay the fine, there is no legal obstacle to the application of the RPC on subsidiary imprisonment.
Privileged communication is NOT PRESUMED malicious. Kinds of Privilege:
ARTICLE 354 - REQUIREMENT FOR PUBLICITY General rule: MALICE IS PRESUMED in every defamatory imputation, even if it be true, if no good intention and justifiable motive for making it is shown.
ABSOLUTE
QUALIFIED
NOT actionable. Narrow and few: (1) Privileged speeches in Congress (2) Statements made in judicial proceedings as long as they are relevant to the issue (3) Military affairs
Actionable IF Malice or Bad faith is proven (malice in fact) Based on par 1 and 2 of Art 354, although the list is not exclusive
Art 354 does not cover absolute privilege because character of communications mentioned therein is lost upon proof of malice in fact.
Exceptions: In privileged communications, namely: (1) A private communication made by any person to another in the performance of any legal, moral, or social duty; (2) A fair and true report, made in good faith, without any comments or remarks, of 354
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2) There is no reasonable ground for believing the charge to be true.
MALICE IN FACT
Presumed from To be proved by defamatory character of prosecution ONLY IF statement malice in law has been rebutted Statement is presented to court, and the latter will decide whether it is defamatory or not
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Fair and true report of official proceedings Official proceedings refer to proceedings of the 3 branches of the government: judiciary, legislative, and executive.
Can be negated by evidence of: (1) Good motives AND Justifiable ends; or (2) Privileged character
Requisites: (1) That it is a fair and true report of a judicial, legislative, or other official proceedings which are not confidential in nature, or of a statement, report, or speech delivered in said proceedings, or of any other act performed by a public officer in the exercise of his functions. (2) That it is made in good faith; and (3) That it is without comments or remarks
Requisites of privileged communication under par. 1 of art. 354: (1) That the person who made the communication had a legal, moral or social duty to make the communication, or, at least, he had an interest to be upheld; (2) That the communication is addressed to an officer or board, or superior, having some interest or duty in the matter. (3) That the statements in the communication are made in good faith without malice in fact.
The communication must be pertinent and material to the subject matter. Doctrine of fair comment: Fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander.
Applying to the wrong person due to honest mistake does not take the case out of privilege. (US v. Bustos)
In order that a discreditable imputation to a public official may be actionable, it must either be: (1) A false allegation of fact; OR (2) A comment based on a false supposition. [People v. Velasco (2000)]
Unnecessary publicity destroys good faith. The privileged character simply does away with the presumption of malice.
PUBLIC FIGURE – one who, by his accomplishments, fame, mode of living, OR by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs and his character, has become a “public personage” [Ayer Productions v. Capulong (1988)]
The rule is that a communication loses its privileged character and is actionable on proof of actual malice. That the statement is a privileged communication is a matter of defense. To overcome the defense of privileged communication under par. 1 of Art. 354, it must be shown that: 1) The defendant acted with malice in fact; or
Based on the ruling in US v. Ocampo, proof of knowledge of and participation in the 355
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publication of the offending article is not required, if the accused has been specifically identified as “author, editor, or proprietor” or “printer/publisher” of the publication.
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Blackmail can also be in the form of light threats, which is punished under ARTICLE 283.
ARTICLE 357 - PROHIBITED PUBLICATION OF ACTS REFERRED TO IN THE COURSE OF OFFICIAL PROCEEDINGS (GAG LAW)
ARTICLE 355 - LIBEL BY WRITING OR SIMILAR MEANS
Elements: (a) Offender is a reporter, editor or manager of a newspaper, daily or magazine; (b) He publishes facts connected with the private life of another; (c) Such facts are offensive to the honor, virtue and reputation of said person.
Libel may be committed by means of: (1) Writing; (2) Printing; (3) Lithography; (4) Engraving; (5) Radio; (6) Photograph; (7) Painting; (8) Theatrical exhibition; (9) Cinematographic exhibition; or (10) Any similar means. (e.g. video broadcast)
Requisites of violation: (1) That the article published contains facts connected with the private life of an individual; and (2) That such facts are offensive to the honor, virtue and reputation of said person.
Common characteristic of written libel: their permanent nature as a means of publication.
This article is referred to as the Gag Law.
Use of amplifier system is not libel but oral defamation (slander). But the defamation made in the television program is libel.
Prohibition applies even if the facts are involved in official proceedings.
ARTICLE 356 - THREATENING TO PUBLISH AND OFFER TO PREVENT SUCH PUBLICATION FOR A COMPENSATION
Newspaper reports on cases pertaining to adultery, divorce, legitimacy of children, etc. are barred from publication. Under RA 1477, a newspaper reporter cannot be compelled to reveal the source of the news report he made, UNLESS the court or a House or committee of Congress finds that such revelation is demanded by the security of the state.
Acts Punished: (1) Threatening another to publish a libel concerning – him, his parents, spouse, child or other members of his family (2) Offering to prevent the publication of such libel for compensation or money consideration.
ARTICLE 358 - SLANDER
The essence of this crime is blackmail, which is defined as any unlawful extortion of money by threats of accusation or exposure.
Slander, or oral defamation is composed of two kinds: (1) Simple slander (2) Grave slander, when it is of serious and insulting nature 356
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ARTICLE 359 - SLANDER BY DEED
Factors that determine the gravity of the oral defamation: (1) Expressions used (2) Personal relations of the accused and the offended party. (3) The surrounding circumstances.
Elements (a) Offender performs any act not included in any other crime against honor; (b) Such act is performed in the presence of other person/s; and (c) Such act casts dishonor, discredit or contempt upon the offended party.
Illustration of grave slander: A woman of violent temper hurled at a respectable married lady with young daughters offensive and scurrilous epithets including words imputing unchastity to the mother and tending to injure the character of the daughters [U.S. vs. Toloso]
Slander by deed is a crime against honor which is committed by performing any act which casts dishonor, discredit, or contempt upon another person. Slander by deed is of two kinds (1) Simple slander by deed (2) Grave slander by deed
Illustration of simple slander: (1) Calling a person a gangster (2) Uttering defamatory words in the heat of anger with some provocation on the part of the offended party
There is no fixed standard in determining whether a slander is serious or not; hence the courts have sufficient discretion to determine the same, basing the finding on the attendant circumstances and matters relevant thereto.
The Court does not condone the vilification or use of scurrilous language on the part of petitioner, but following the rule that all possible circumstances favorable to the accused must be taken in his favor, it is our considered view that the slander committed by petitioner can be characterized as slight slander following the doctrine that: uttering defamatory words in the heat of anger, with some provocation on the part of the offended party, constitutes only a light felony. [Villanueva vs. People (2006)]
Slapping the face of another is slander by deed if the intention of the accused is to cause shame or humiliation. Fighting the offended party with intention to insult him is slander by deed. Pointing a dirty finger constitutes simple slander by deed. Slander by deed and acts of lasciviousness – distinguished by presence of lewd designs. If such is present, it is an act of lasciviousness.
(3) The word “putang ina mo” is a common expression in the dialect that is often employed not really to slander but rather to express anger or displeasure. It is seldom, if ever taken in its literal sense by the hearer, that is, as a reflection on the virtue of a mother. [Reyes vs. People]
Slander by deed and maltreatment – the nature and effect of maltreatment determines the crime committed. If the offended party suffered from shame or humiliation caused by the maltreatment, it is slander by deed.
The slander need not be heard by the offended party. 357
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Slander by deed and unjust vexation – If it merely annoys and irritates, without any other concurring factor, it is unjust vexation. If the irritation or annoyance was attended by publicity and dishonor, it is slander by deed.
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(b) does not induce or cause another person or party to commit any infringement or other unlawful act (c) and/or does not benefit financially from the infringing activity or unlawful act of another person or party (Section 30, in relation to Section 5, ECommerce Law).
ARTICLE 360 - PERSONS RESPONSIBLE FOR LIBEL (1) The person who publishes, exhibits or causes the publication or exhibition of any defamation in writing or similar means. (2) The author or editor of a book or pamphlet. (3) The editor or business manager of a daily newspaper, magazine or serial publication. (4) The owner of the printing plant which publishes a libelous article with his consent and all other persons who in any way participate in or have connection with its publication.
Where to file the criminal action? It depends on who the offended party is. If he is a public officer, the criminal action can only be instituted in either: (1) RTC of the province or city where the libelous article is printed and first published, OR (2) RTC of the province or city where he held office at the time of the commission of the offense
Liability of the editor is the same as that of the author.
If he is a private person, the criminal action may be brought in: (1) RTC of the province or city where the libelous article is printed and first published, OR (2) RTC of the province or city where he actually resided at the time of the commission of the offense
Lack of participation in the preparation of libelous articles does not shield the persons responsible from liability. Under Republic Act 8792, otherwise known as the Electronic Commerce Act, a party or person acting as a service provider incurs NO civil or criminal liability in the making, publication, dissemination or distribution of libelous material if: (1) The service provider does not have actual knowledge, or is not aware of the facts or circumstances from which it is apparent that making, publication, dissemination or distribution of such material is unlawful or infringes any rights; (2) The service provider does not knowingly receive a financial benefit directly attributable to the infringing activity; (3) The service provider does: (a) not directly commit any infringement or other unlawful act and
In order to obviate controversies as to the venue of the criminal action for written defamation, the complaint or information should contain allegations as to whether, at the time the offense was committed, the offended party was a public officer or a private individual and where he was actually residing at that time. Whenever possible, the place where the written defamation was printed and first published should likewise be alleged. That allegation would be a sine qua non if the circumstance as to where the libel was printed and first published is used as the basis of the venue of the action. [Macasaet v. People (2005)] 358
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PCGG and Rizal Commercial Banking Corp. (RCBC) to the prejudice of the Government.
Civil and criminal action must be filed with the same court.
In the recent case of Vasquez v. Court of Appeals, et. al., the Court ruled that: "The question is whether from the fact that the statements were defamatory, malice can be presumed so that it was incumbent upon petitioner to overcome such presumption. Under Art. 361 of the Revised Penal Code, if the defamatory statement is made against a public official with respect to the discharge of his official duties and functions and the truth of the allegation is shown, the accused will be entitled to an acquittal even though he does not prove that the imputation was published with good motives and for justifiable ends."
Offended party must file the complaint for defamation imputing a crime which cannot be prosecuted de officio. Libel imputing a vice or defect, not being an imputation of a crime, is always prosecuted upon information signed and filed by the fiscal.
ARTICLE 361 - PROOF OF TRUTH When admissible? (1) When the act or omission imputed constitutes a crime regardless of whether the offended party is a private individual or a public officer. (2) When the offended party is a Government employee, even if the imputation does not constitute a crime, provided it is related to the discharge of his official duties.
Moreover, the Court has ruled in a plethora of cases that in libel cases against public officials which relate to official conduct liability will attach only if the public official concerned proves that the statement was made with actual malice, that is, with knowledge that it was false.
Rule of actual malice [or malice in fact]: Even if the defamatory statement is false, NO liability can attach IF it relates to official conduct, UNLESS the public official concerned proves that the statement was made with actual malice, i.e., with knowledge that it was false or with reckless disregard of WON it was false.
Imputations regarding official conduct do not carry the presumption of malice, hence even if the defamatory statement is false, if malice was not proven, there is no libel. Here petitioner failed to prove actual malice on the part of the private respondents. Nor was the Court of the opinion that the open letter was written to cast aspersion on the good name of the petitioner.
That the publication of the article was an honest mistake is not a complete defense but serves only to mitigate damages where article is libelous per se.
The paid advertisement merely served as a vehicle to inform the stockholders of the goingson in the business world and only exposed the irregularities surrounding the PCGG and RCBC deal and the parties involved. [Mario C.V Jalandoni v Secretary of Justice (2000)]
Libel against a public official An open letter addressed to the stockholders of OPMC was the subject of a full-page advertisement published in 5 major daily newspapers. Coyiuto, Jr., wrote in his capacity as Chairman of the Board and President of OPMC, that there was a sweetheart deal between Commissioner Mario Jalandoni of the
Truth is a legitimate defense but only under the condition that the accused has been prompted in making the statement by good motives and 359
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for justifiable ends. [Disini v. Secretary of Justice (2014)]
(2) By such an act, he incriminates or imputes to an innocent person the commision of a crime (3) Such act does not constitute perjury.
There must be sufficient evidence to permit the conclusion that the accused in fact entertained serious doubts as to the truth of the statement he published. Gross/extreme negligence is not sufficient to establish actual malice. The prosecution bears the burden of proving the presence of actual malice in instances where such element is required to establish guilt. The defense of absence of actual malice, even when the statement turns out to be false, is available where the offended party is a public official or public figure. Malice is presumed, however, when the offended party is a private individual. The law presumes its existence (RPC Art 354) and the accused has the burden of proof to show that he has a justifiable reason for the defamatory statement.
ARTICLE 362 - LIBELOUS REMARKS
SLANDER
INCRIMINATING INNOCENT PERSON
The source of the defamatory utterance is unknown and the offender simply repeats or passes the same to blemish the honor or reputation of another
Offender made the utterance, where the source of the defamatory nature of the utterance is known, and offender makes a republication thereof
Offender performs an act by which he directly incriminates or imputes to an innocent person the commission of a crime
This crime cannot be committed through verbal incriminatory statements.
Libelous remarks or comments on matters privileged, if made with malice in fact, do not exempt the author and editor.
ARTICLE 363 INNOCENT PERSON
INTRIGUING AGAINST HONOR
As far as this crime is concerned, this has been interpreted to be possible only in the so-called planting of evidence. If this act is resorted to, to enable officers to arrest the subject, the crime is unlawful arrest through incriminating innocent persons.
(1) Libelous remarks or comments (2) connected with the matter privileged under the provisions of Art. 354, (3) if made with malice, (4) shall NOT exempt the author thereof nor the editor or managing editor of a newspaper from criminal liability.
CHAPTER II: MACHINATIONS
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PERJURY BY DEFAMATION INCRIMINATING MAKING INNOCENT FALSE PERSON ACCUSATIONS
INCRIMINATORY
Act of planting evidence and the like in order to incriminate an innocent
INCRIMINATING
Elements: (1) Offender performs an act 360
Giving of false statement under oath or making a false affidavit,
Public and malicious imputation calculated to cause
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Title XIV. Quasi-Offenses Article 365 - Imprudence and Negligence
dishonor, discredit, or contempt upon the offended party
Quasi-offenses punished: (1) Committing through reckless imprudence any act which, had it been intentional, would constitute a grave or less grave felony or light felony; (2) Committing through simple imprudence or negligence an act which would otherwise constitute a grave or a less serious felony; (3) Causing damage to the property of another through reckless imprudence or simple imprudence or negligence; (4) Causing through simple imprudence or negligence some wrong which, if done maliciously, would have constituted a light felony.
ARTICLE 364 - INTRIGUING AGAINST HONOR Elements: (a) Offender disseminates any intrigue (b) Its principal purpose is to blemish the honor or reputation of a person. Intriguing against honor is referred to as gossiping: the offender, without ascertaining the truth of a defamatory utterance, repeats the same and pass it on to another, to the damage of the offended party Administrative Circular 08-2008 Re: Guidelines in the Observance of a Rule of Preference in the Imposition of Penalties in Libel Cases (1) This Administrative Circular does not remove imprisonment as an alternative penalty for the crime libel under Article 355 of the RPC (2) The Judges concerned may, in the exercise of sound discretion, and taking into consideration the peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve the interests of justice or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperative of justice; (3) Should only a fine be imposed and the accused be unable to pay the fine, there is no legal obstacle to the application of the RPC provision on subsidiary imprisonment.
IMPRUDENCE
NEGLIGENCE
Lack of skill Deficiency of action
Lack of foresight Deficiency of perception
Failure in precaution Failure in advertence Imprudence or negligence is not a crime itself; it is simply a way of committing a crime. It becomes punishable only when it results in a crime. The rules for graduating penalties (under Art. 64) based on mitigating and aggravating circumstances are NOT applicable to offenses punishable thru criminal negligence. QUALIFYING CIRCUMSTANCE: failure to render immediate assistance to the injured party. This qualifying circumstance must be distinguished from the punishable OMISSION under Article 275.
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If the danger that may result from the criminal negligence is clearly perceivable, the imprudence is reckless. If it could hardly be perceived, the criminal negligence would only be SIMPLE.
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Force majeure is an event which cannot be foreseen, or which being foreseen is inevitable; it implies an extraordinary circumstance independent of the will of the actor.
Criminal negligence is only a modality in incurring criminal liability. This is so because under Article 3, a felony may result from dolo or culpa. THEREFORE, even if there are several results arising from ONLY ONE CARELESSNESS, the accused may only be prosecuted under one count for the criminal negligence. Otherwise, double jeopardy would arise.
Once malice is proven, recklessness disappears. [People v. Agliday (2001)}
Elements of Reckless Imprudence: (a) The offender does or fails to do an act (b) The doing of or the failure to do the act is voluntary (c) It is without malice (d) Material damage results (e) There is inexcusable lack of precaution on the part of the offender, taking into consideration: (1) His employment/occupation (2) Physical condition (3) Degree of intelligence (4) Other circumstances regarding the persons, time and place
Test of negligence: Would a prudent man, in the position of the person to whom negligence is attributed, foresee harm as a result of the course actually pursued? If so, it was the duty of the actor to refrain from that course or to take precautions against its mischievous results, and the failure to do so constitutes negligence.
NOTE: (1) Reckless Imprudence Resulting Homicide (2) Resulting in Physical Injuries
Elements of Simple Imprudence (a) There is lack of precaution on the part of the offender (b) The damage impending to be caused is not immediate or the danger is not clearly manifest.
The measure of the damage should be the difference in value of property immediately before the incident and immediately after the repair. Art. 64 relative to mitigating and aggravating circumstances is not applicable to crimes committed through negligence.
in The penalties provided in Art. 365 are not applicable in the ff. cases: (1) When the penalty provided for the offense is equal to or lower than those provided in the first two paragraphs of Art. 365, in which case the courts shall impose the penalty next lower in degree that that which should be imposed, in the period which they may deem proper to apply. (2) When, by imprudence or negligence and with violation of the Automobile Law, the
Inexcusable lack of precaution Factors to be considered in determining inexcusable lack of precaution: (1) Employment or occupation (2) Degree of intelligence and physical condition of the offender; and (3) Other circumstances regarding persons, time, and place. 362
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death of a person shall be caused, in which case the defendant shall be punished by prision correccional in its medium and maximum periods.
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to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence. [Gan v. CA (1988)] Violation of a rule or regulation or law is proof of negligence. But negligence cannot be predicated upon the mere fact of minority or lack of an operator’s license.
When death or serious bodily injury to any person has resulted, the motor vehicle driver at fault shall be punished under the Penal Code. Contributory negligence is not a defense. It only mitigates criminal liability.
The penalty next higher in degree is imposed if the offender fails to lend on the spot to the injured parties such help as may be in his hands to give.
Sec. 59 of Act 3992 (Revised Motor Vehicle Law) gives the right of way to the driver coming from the right of another, when both are travelling on intersecting streets of the same class. The grant of right of way does not relieve the motorist from the duty of keeping a lookout for motorists entering the intersection from his left or right.
Carillo v. People (1994): The gravamen of SIMPLE NEGLIGENCE is the failure to exercise the diligence necessitated or called for by the situation which was NOT immediately lifedestructive BUT which culminated, as in the present case, in the death of a human being 3 days later.
Doctrine of last clear chance The contributory negligence of the party injured will not defeat the action if it be shown that the accused might, by exercise of reasonable care and prudence, have avoided the consequences of the negligence of the injured party.
Medical malpractice, which is a form of negligence, consists in the failure of a physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions, and in like surrounding circumstances. [Garcia-Rueda v. Pascasio (1997)]
Emergency rule An automobile driver who, by negligence of another and not by his own negligence, is suddenly placed in an emergency and compelled to act instantly to avoid collision or injury is not guilty of negligence if he makes such a choice which a person of ordinary prudence placed in such situation might make even though he did not make the wisest choice.
Res ipsa loquitur – the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiff’s prima facie case, and present a question of fact for the defendant to meet with an explanation. [Ramos v. CA (1999)] Requisites for the application of res ipsa loquitur (1) The accident was of a kind which does NOT ordinarily occur UNLESS someone is negligent;
One who suddenly finds himself in a place of danger, and is required to act without time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence, if he fails to adopt what subsequently and upon reflection may appear 363
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(2) The instrumentality or agency which caused the injury was under the exclusive control of the person in charge; and (3) The injury suffered must NOT have been due to any voluntary action or contribution of the person injured.
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precaution on the part of the person performing such act. Compared to intentional felonies, such as homicide or murder, what takes the place of the element of malice or intention to commit a wrong or evil i: the failure of the offender to take precautions due to lack of skill taking into account his employment, or occupation, degree of intelligence, physical condition, and other circumstances regarding persons, time and place.
Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. HOWEVER, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are observable by any one may be given by nonexpert witnesses. [Reyes v. Sis. of Mercy Hospital (2000)]
The elements of reckless imprudence are apparent in the acts done by accusedappellants which, because of their lack of medical skill in treating the victim of his alleged ailment, resulted in the latter's death. As already stated, accused-appellants, none of whom is a medical practitioner, belong to a religious group, known as the Missionaries of Our Lady of Fatima, which is engaged in faith healing.
Illustration: People v. Carmen (2001): It would appear that accused-appellants are members of a cult and that the bizarre ritual performed over the victim was consented to by the victim's parents. With the permission of the victim's parents, accusedappellant Carmen, together with the other accused-appellants, proceeded to subject the boy to a "treatment" calculated to drive the "bad spirit" from the boy's body. Unfortunately, the strange procedure resulted in the death of the boy. Thus, accused-appellants had no criminal intent to kill the boy.
Ivler v. Modesto-San Pedro (2010): The accused got involved in a car accident for which he was charged with two separate offenses (RI resulting to slight physical injuries and RI resulting to homicide and damage to property). He was convicted of the first offense and he wanted the second information quashed on the ground of double jeopardy. The Court held that the Reckless Imprudence is a single crime and the consequences on persons and property are material only to determine the penalty. The conviction or acquittal of such quasi-offense bars subsequent prosecution for the same quasi-offense, regardless of its various resulting acts. The law penalizes the negligent act and not its result.
Their liability arises from their reckless imprudence because they ought that to know their actions would not bring about the cure. They are, therefore, guilty of reckless imprudence resulting in homicide and not of murder. Art. 365 of the Revised Penal Code, as amended, states that reckless imprudence consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of
Rafael Reyes Trucking v. People (2000): Much of the confusion has arisen from the common use of such descriptive phrase as 'homicide through reckless imprudence', and the like; when the 364
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strict technical sense is, more accurately, 'reckless imprudence resulting in homicide'; or 'simple imprudence causing damages to property'."
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(28) Article 289 - Formation, Maintenance, and Prohibition of Combination of Capital or Labor through Violence or Threats Chapter III: Discovery and Revelation of Secrets (4) Article 290 - Discovering Secrets through Seizure of Correspondence (5) Article 291 - Revealing Secrets with Abuse of Office (6) Article 292 - Revelation of Industrial Secrets
Title IX. Crimes against Personal Liberty and Security Chapter I: Crimes against Liberty (9) Article 267 - Kidnapping and Serious Illegal Detention (10) Article 268 - Slight Illegal Detention (11) Article 269 - Unlawful Arrest (12) Article 270 - Kidnapping and Failure to Return a Minor (13) Article 271 - Inducing a Minor to Abandon His Home (14) Article 272 – Slavery (15) Article 273 - Exploitation of Child Labor (16) Article 274 - Services Rendered Under Compulsion in Payment of Debt
CHAPTER I CRIMES AGAINST LIBERTY ARTICLE 267 - KIDNAPPING SERIOUS ILLEGAL DETENTION
AND
Elements: (e) Offender is a private individual; (f) He kidnaps or detains another, or in any other manner deprives the latter of his liberty; (g) The act of detention or kidnapping must be illegal; (h) In the commission of the offense, any of the following circumstances is present: (1) The kidnapping lasts for more than 3 days; (2) It is committed simulating public authority; (3) Any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or (4) The person kidnapped or detained is a minor, female, or a public officer.
Chapter II: Crimes against Security (15) Article 275 - Abandonment of Persons in Danger and Abandonment of Own Victim (16) Article 276 - Abandoning a Minor (17) Article 277 - Abandonment of Minor by Person Entrusted With Custody; Indifference of Parents (18) Article 278 - Exploitation of Minors (19) Article 280 - Qualified Trespass to Dwelling (20) Article 281 - Other Forms of Trespass (21) Article 282 - Grave Threats (22) Article 283 - Light Threats (23)Article 284 - Bond for Good Behavior (24) Article 285 - Other Light Threats (25) Article 286 - Grave Coercions (26) Article 287 - Light Coercions (27) Article 288 - Other Similar Coercions
The essential element of kidnapping is the deprivation of the offended party’s liberty under any of the four instances enumerated. But when the kidnapping was committed for the purpose of extorting ransom, it is not necessary that one or any of circumstances enumerated be present. If kidnapping be committed under element d (2), (3), or (4), it is not necessary that the kidnapping last for more than 3 days. 365
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It suffices that there be actual or manifest restraint on the person or liberty of the victim. Accused were guilty of kidnapping although the victim was found, at the time of her rescue, outside of the house where she was brought, talking to the house owner who was the uncle of the accused. Her failure to attempt to escape was explained by her to be due to her fear and threats of the accused to kill her should she do so. In kidnapping, it is not necessary that the offended party be kept within an enclosure to restrict her freedom of locomotion. [People v. Cortez, et al., 2000]
QUALIFYING CIRCUMSTANCES (penalty → death) (5) Purpose is to extort ransom. (6) When the victim is killed or dies as a consequence of the detention. (7) When the victim is raped. (8) When victim is subjected to torture or dehumanizing acts. The offenders here are private individuals or public officers acting in their private capacity. If they are public officers, they are covered by the crimes under Title 2.
The victim’s lack of consent is also a fundamental element of kidnapping and serious illegal detention. The involuntariness of the seizure and detention is the very essence of the crime. Although the victim may have initially consented to go with the offender to a place, but the victim is thereafter prevented, with the use of force, from leaving the place where he was brought to with his consent and is detained against his will, the offender is still guilty of kidnapping and serious illegal detention. [People v. Pickrell, 2003]
When a public officer conspires with a private person in the commission of any of the crimes under Title IX, the crime is also one committed under this title and not under Title II. The purpose is immaterial when any of the circumstances in the first paragraph of Art. 267 is present. Ransom Means money, price or consideration paid or demanded for the redemption of a captured person that would release him from captivity. No specific form of ransom is required to consummate the felony as long as the ransom was intended as a bargaining chip in exchange for the victim’s freedom. Whether or not ransom is actually paid to or received by the perpetrator is of no moment. [People v. Jatulan, 2007]
When detention is illegal It is not ordered by competent authority nor permitted by law. Special complex crime of Kidnapping with Murder When the victim dies or is killed as a consequence of the detention, which is covered by the last paragraph of Art. 267 as amended.
Actual demand for ransom is not necessary, as long as it can be proven that the kidnapping was done for the purpose of extorting money.
Forcible abduction If a woman is transported from one place to another by virtue of restraining her of her liberty, and that act is coupled with lewd designs.
It is essential that there be actual confinement or restriction of the person of the offended party. It is not necessary that the victim be placed in an enclosure, as long as he is deprived, in any manner, of his liberty. 366
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Serious illegal detention If a woman is transported just to restrain her of her liberty. There is no lewd design or lewd intent.
Leaving a child in a place from which he did not know the way home, even if he had the freedom to roam around the place of detention, would still amount to deprivation of liberty, for under such a situation, the child’s freedom remains at the mercy and control of the abductor. [People v Baluya, 2011]
Grave coercion If a woman is carried away just to break her will, to compel her to agree to the demand or request by the offender. Illegal Detention
Arbitrary Detention
Committed by a private individual who unlawfully deprives a person of his liberty
Committed by public officer or employee who detains a person without legal ground
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The elements of kidnapping for ransom under Article 267 of the RPC as amended by RA 7659 warranting the imposition of the death penalty are as follows: (4) intent on the part of the accused to deprive the victim of his liberty; (5) actual deprivation of the victim of his liberty; and (6) motive of the accused, which is extorting ransom for the release of the victim.
Crime against Crime against the personal liberty fundamental laws of the State
Neither actual demand for nor payment of ransom is necessary for the consummation of the felony. It is sufficient that the deprivation of liberty was for extorting ransom even if none of the four circumstances mentioned in Article 267 were present in its perpetration. [People v. Cenahonon (2007)]
Where the evident purpose of taking the victim was to kill him, and from the acts of the accused it cannot be inferred that the latter’s purpose was to actually detain or deprive the victim of his liberty, the subsequent killing of the victim did not constitute the crime of kidnapping. The demand for ransom did not convert the crime into kidnapping, since no deprivation of liberty was involved. [People v Padica (1993)]
Article 267 has been modified by RA 7659 (an act to impose the death penalty on certain heinous crimes, amending for that purpose the revised penal laws, as amended, other special penal laws, and for other purposes) in the following respects: (7) Illegal detention becomes serious when it shall have lasted for more than three days, instead of five days as originally provided; (8) In paragraph 4, if the person kidnapped or detained was a minor and the offender was anyone of the parents, the latter has been expressly excluded from the provision. The liability of the parent is provided for in the last paragraph of Article 271;
The essence of kidnapping is the actual deprivation of the victim’s liberty coupled with the intent of the accused to effect it. [People v Luartes (1999)] Physical detention is not necessary. It is enough that the victim is under the complete control of the perpetrators as in this case when the Japanese victim had to rely on his abductors for survival after he was tricked into believing that the police was after him. It was also held in this case that keeping a person as collateral for payment of an obligation is kidnapping. [People v. Tomio]
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(9) A paragraph was added to Article 267, which states: When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture, or dehumanizing acts, the maximum penalty shall be imposed. (10) The amendment introduced in our criminal statutes the concept of "special complex crime" of kidnapping with murder or homicide. (11) It eliminated the distinction drawn by the courts between those cases where the killing of the kidnapped victim was purposely sought by the accused, and those where the killing of the victim was not deliberately resorted to but was merely an afterthought. (12) Although the victim was raped 27 times, there is only one crime of kidnapping with rape, not kidnapping with rape and 26 separate counts of rape. In a way, R.A. 7659 depreciated the seriousness of rape because no matter how many times the victim was raped, like in the present case, there is only one crime committed – the special complex crime of kidnapping with rape. [People v Felipe Mirandilla, 2011]
Kidnapping Rape
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as a separate crime.
forcible abduction, the former being an expression of a lewd design.
If there are multiple rapes, there is only one special complex crime of Kidnapping with Rape.
If there are multiple rapes, only one is complexed with forcible abduction and the rest shall be considered as separate crimes.
ARTICLE 268 DETENTION
-
SLIGHT
ILLEGAL
Elements: (e) Offender is a private individual; (f) He kidnaps or detains another, or in any other manner deprives him of his liberty. (g) The act of kidnapping or detention is illegal; (h) The crime is committed without the attendance of any of the circumstances enumerated in Article 267. This felony is committed if any of the five circumstances in the commission of kidnapping or detention enumerated in Article 267 is not present.
with Forcible Abduction with Rape
Privileged mitigating circumstances – The penalty is lowered if: (4) The offended party is voluntarily released within three days from the start of illegal detention; (5) Without attaining the intended purpose; AND (6) Before the institution of the criminal action.
Lewd design came At the outset, there is after the intent to already lewd design kidnap the victim It is a special It is a complex crime complex crime. under RPC 48 since forcible abduction is a necessary means of committing the crime of rape.
The prevailing rule now is Asistio v. Judge, which provides that voluntary release will only mitigate criminal liability if crime was slight illegal detention. If serious, it has no effect.
It there is an If there is an attempted attempted rape, it rape, the crime shall be considered committed is only 368
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The liability of one who furnishes the place where the offended party is being held captive is that of a principal and not of an accomplice.
Note: This felony may also be committed by public officers.
ARTICLE 269 - UNLAWFUL ARREST
Unlawful Arrest vs. Delay in the Delivery of Detained Persons
Elements (d) Offender arrests or detains another person; (e) The purpose of the offender is to deliver him to the proper authorities; (f) The arrest or detention is not authorized by law or there is no reasonable ground therefor.
DELAY IN THE DELIVERY UNLAWFUL OF DETAINED PERSONS ARREST (Art. 269) (Art. 125) Detention is for some legal Detention is not ground. authorized by law. Crime is committed by failing to deliver such person to the proper judicial authority within a certain period.
This felony consists in making an arrest or detention without legal or reasonable ground for the purpose of delivering the offended party to the proper authorities.
Committed by making an arrest not authorized by law
ARTICLE 270 - KIDNAPPING FAILURE TO RETURN A MINOR
Generally, this crime is committed by incriminating innocent persons by the offender’s planting evidence to justify the arrest – a complex crime results, that is, unlawful arrest through incriminatory machinations under Article 363.
AND
Elements: (c) Offender is entrusted with the custody of a minor person (whether over or under seven years but less than 18 years of age) (d) He deliberately fails to restore the said minor to his parents or guardians
If the arrest is made without a warrant and under circumstances not allowing a warrantless arrest, the crime would be unlawful arrest.
If any of the foregoing elements is absent, the kidnapping of the minor will then fall under Article 267.
If the person arrested is not delivered to the authorities, the private individual making the arrest incurs criminal liability for illegal detention under Article 267 or 268.
The essential element which qualifies the crime of kidnapping a minor under Art. 270 is that the offender is entrusted with the custody of the minor.
If the offender is a public officer, the crime is arbitrary detention under Article 124.
If the accused is any of the parents, Article 267 does not apply; Articles 270 and 271 will then apply.
If the detention or arrest is for a legal ground, but the public officer delays delivery of the person arrested to the proper judicial authorities, then Article 125 will apply.
If the taking is with the consent of the parents, the crime in Article 270 is committed.
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What is punished is the deliberate failure of the custodian of the minor to restore the latter to his parents or guardians.
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The minor should not leave his home of his own free will. What constitutes the crime is the act of inducing a minor to abandon the home of his guardian, and it is not necessary that the minor actually abandons the home.
The deliberate failure to return a minor under one’s custody constitutes deprivation of liberty. Kidnapping and failure to return a minor is necessarily included in kidnapping and serious illegal detention of a minor under Article 267(4). [People v. Generosa]
Father or mother may commit the crimes in Art. 170 and 171 where they are living separately and the custody of the minor children is given to one of them.
Where a minor child was taken by the accused without the knowledge and consent of his parents, the crime is kidnapping and serious illegal detention under Article 267, not kidnapping and failure to return a minor under Article 270. [People v. Mendoza]
The law is intended to discourage and prevent disruption of filial relationships and undue interference with the parents’ right and duty to the custody of their minor children and to rear them.
ARTICLE 272 - SLAVERY Art. 270 distinguished from Art. 267 Art. 270
Elements: (c) Offender purchases, sells, kidnaps or detains a human being; (d) The purpose of the offender is to enslave such human being.
Art. 267
Offender is The offender is not entrusted with the entrusted with the custody custody of the of the minor. minor What is punished is the illegal detaining or kidnapping of the minor
This is committed if anyone shall purchase, kidnap, or detain a human being for the purpose of enslaving him.
What is punished is the deliberate failure of the offender having custody of the minor to restore him to his parents or guardians
The penalty is increased if the purpose of the offender is to assign the offended party to some immoral traffic.
ARTICLE 271 - INDUCING A MINOR TO ABANDON HIS HOME
If the purpose of the kidnapping or detention is to enslave the offended party, slavery is committed.
Elements: (c) A minor (whether over or under seven years of age) is living in the home of his parents or guardians or the person entrusted with his custody; (d) Offender induces said minor to abandon such home.
The crime is slavery if the offender is not engaged in the business of prostitution. If he is, the crime is white slave trade under Article 341. The employment or custody of a minor with the consent of the parent or guardian, although against the child’s own will, cannot be considered involuntary servitude.
Inducement must be (a) actual, and (b) committed with criminal intent.
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whether or not the victim is a minor
But where it is proven that the defendant was obliged to render service in plaintiff’s house as a servant without remuneration whatever and to remain there so long as she has not paid her debt, there is slavery.
The debtor himself is the one compelled to work for the offender
The minor is compelled to render services for the supposed debt of his parents or guardian
Limited to household work or farm labor
Service is not limited
Elements: (d) Offender retains a minor in his services; (e) It is against the will of the minor; (f) It is under the pretext of reimbursing himself of a debt incurred by an ascendant, guardian or person entrusted with the custody of such minor.
CHAPTER SECURITY
CRIMES
The existence of indebtedness constitutes no legal justification for holding a person and depriving him of his freedom to live where he wills.
Mode 1: W/O detriment to self Failing to render assistance to any person whom the offender finds in an uninhabited place, wounded or in danger of dying when he can render such assistance without detriment to himself, unless such omission shall constitute a more serious offense.
See Special Law: RA 9208 (Anti-Trafficking of Person Act of 2003)
ARTICLE 273 - EXPLOITATION OF CHILD LABOR
Elements: (5) The place is not inhabited; (6) Accused found there a person wounded or in danger of dying; (7) Accused can render assistance without detriment to himself; (8) Accused fails to render assistance.
Elements: (d) Offender compels a debtor to work for him, either as a household servant or farm laborer; (e) It is against the debtor’s will; (f) The purpose is to require or enforce the payment of a debt.
MODE 2: accidentally wound another Failing to help or render assistance to another whom the offender has accidentally wounded or injured;
Service under Compulsion distinguished from Exploitation of Child Labor
Does not distinguish
AGAINST
ARTICLE 275 - ABANDONMENT OF PERSONS IN DANGER AND ABANDONMENT OF OWN VICTIM
ARTICLE 274 - SERVICES RENDERED UNDER COMPULSION IN PAYMENT OF DEBT
Service under Compulsion
II:
Exploitation of Child Labor Victim must be a minor
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MODE 3: abandoning a child < 7 By failing to deliver a child, under seven years of age, whom the offender has found abandoned, to the authorities or to his family, or by failing to deliver him to a safe place.
The ruling that the intent to kill is presumed from the death of the victim of the crime is applicable only to crimes against persons, and not to crimes against security, particularly the crime of abandoning a minor under Art. 276.
Does not apply: When a person intentionally wounds another and leaves him in an uninhabited place.
If the offender is the parent of the minor who is abandoned, he shall be deprived of parental authority. (Civil Code, Art. 332)
Immaterial: That the offender did not know that the child is under seven years.
ARTICLE 277 - ABANDONMENT OF MINOR BY PERSON ENTRUSTED WITH CUSTODY; INDIFFERENCE OF PARENTS
The child under seven years of age must be found by the accused in an unsafe place.
MODE 1: W/O consent of guardian Delivering a minor to a public institution or other persons without the consent of the one who entrusted such minor to the care of the offender or, in the absence of that one, without the consent of the proper authorities;
ARTICLE 276 - ABANDONING A MINOR Elements: (e) Offender has the custody of a child; (f) The child is under seven years of age; (g) He abandons such child; (h) He has no intent to kill the child when the latter is abandoned.
Elements: (d) Offender has charge of the rearing or education of a minor; (e) He delivers said minor to a public institution or other persons; (f) The one who entrusted such child to the offender has not consented to such act; or if the one who entrusted such child to the offender is absent, the proper authorities have not consented to it.
Circumstances qualifying the offense: (3) When the death of the minor resulted from such abandonment; or (4) If the life of the minor was in danger because of the abandonment. The purpose in abandoning the minor under his custody is to avoid the obligation of taking care of said minor.
MODE 2: neglecting education Neglecting his (offender’s) children by not giving them the education which their station in life requires and financial condition permits.
A permanent, conscious and deliberate abandonment is required in this article. There must be an interruption of the care and protection the minor needs by reason of his age.
Elements: (d) Offender is a parent; (e) He neglects his children by not giving them education;
Intent to kill cannot be presumed from the death of the child. When there is intent to kill, this article does not apply.
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(f) His station in life requires such education and his financial condition permits it.
an ascendant, guardian, teacher or person entrusted in any capacity with the care of such child;
Obligation to educate children terminates if the mother and children refuse without good reason to live with the accused.
Mode 5: inducing child under 16 to abandon home to be employed like 2 Inducing any child under 16 years of age to abandon the home of its ascendants, guardians, curators or teachers to follow any person engaged in any of the callings mentioned in paragraph 2 or to accompany any habitual vagrant or beggar, the offender being any person.
Failure to give education must be due to deliberate desire to evade such obligation. If the parents cannot give education because they had no means to do so, then they will not be liable under this article.
ARTICLE MINORS
278
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EXPLOITATION
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Circumstance qualifying the offense: (3) If the delivery of the child to any person following any of the calling of acrobat, gymnast, rope-walker, diver, wild-animal tamer or circus manager or to any habitual vagrant or beggar is made in consideration of any price, compensation or promise. (4) The offender is engaged in a kind of business that would place the life or limb of the minor in danger, even though working for him is not against the will of the minor.
Mode 1: Physical strength/contortion Causing any boy or girl under 16 years of age to perform any dangerous feat of balancing, physical strength or contortion, the offender being any person; Mode 2: exhibition/acrobat/circus Employing children under 16 years of age who are not the children or descendants of the offender in exhibitions of acrobat, gymnast, rope-walker, diver, or wild-animal tamer, the offender being an acrobat, etc., or circus manager or engaged in a similar calling;
Nature of the Business: this involves circuses which generally attract children so they themselves may enjoy working there unaware of the danger to their own lives and limbs.
Mode 3: descendant employed like 2 Employing any descendant under 12 years of age in dangerous exhibitions enumerated in the next preceding paragraph, the offender being engaged in any of the said callings;
Age: Must be below 16 years. Article 278 has no application if minor is 16 years old and above, but the exploitation will be dealt with by RA 7610. If the employer is an ascendant, the crime is not committed, unless the minor is less than 12 years old.
Mode 4: delivering child under 16 to be employed like 2 Delivering a child under 16 years of age gratuitously to any person following any of the callings enumerated in mode 2, or to any habitual vagrant or beggar, the offender being
If the minor so employed would suffer some injuries as a result of a violation of Article 278, Article 279 provides that there would be 373
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additional criminal liability for the resulting felony.
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If the purpose is not shown and while inside the dwelling he was found by the occupants, one whom he subsequently injured if there was a struggle, the crime committed will be trespass to dwelling and frustrated homicide or physical injuries, or if there was no injury, unjust vexation.
EXPLOITATION OF MINORS INDUCING A (RPC 278, PAR. 5) MINOR TO ABANDON HIS HOME (RPC 271) Purpose of inducing the No such purpose minor to abandon his home is to follow any person engaged in any of the callings mentioned
If the entry is made by a way not intended for entry, it is presumed to be against the will of the occupant (example, entry through a window). It is not necessary that there be a breaking.
Victim is under 16 years of Victim is a minor age (below 18 years of age)
“Against the will” – This means that the entrance is, either expressly or impliedly, prohibited or the prohibition is presumed. It is a well-settled rule that whoever enters the dwelling of another at late hour of the night after the inmates have retired and closed their doors does so against their will. Prohibition is presumed. [US v Mesina; US v Panes]
ARTICLE 280 - QUALIFIED TRESPASS TO DWELLING Elements (d) Offender is a private person; (e) He enters the dwelling of another; (f) Such entrance is against the latter’s will.
Prohibition must be in existence prior to or at the time of entrance, but prohibition is not necessary when violence or intimidation is employed by the offender (qualified trespass).
Qualifying circumstance: The offense is committed by means of violence or intimidation.
Fraudulent entrance may constitute trespass. The prohibition to enter may be made at any time and not necessarily at the time of the entrance.
DWELLING – This is the place that a person inhabits. It includes the dependencies which have interior communication with the house.
To prove that an entry is against the will of the occupant, it is not necessary that the entry should be preceded by an express prohibition, provided that the opposition of the occupant is clearly established by the circumstances under which the entry is made, such as the existence of enmity or strained relations between the accused and the occupant.
It is not necessary that it be the permanent dwelling of the person; hence, a person’s room in a hotel may be considered a dwelling. It also includes a room where one resides as a boarder. If the purpose in entering the dwelling is not shown, trespass is committed. If the purpose is shown, it may be absorbed in the crime as in robbery with force upon things, the trespass yielding to the more serious crime.
If the offender is public officer, the crime is violation of domicile. 374
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(5) If the purpose is to render some service to humanity or justice. (6) If the place where entrance is made is a café, tavern, inn, and other public house, while the same are open.
Examples of trespass by means of violence: (4) Pushing the door violently and maltreating the occupants after entering. (5) Cutting of a ribbon or string with which the door latch of a closed room was fastened. The cutting of the fastenings of the door was an act of violence. (6) Wounding by means of a bolo, the owner of the house immediately after entrance
Note: A person who believes that a crime has been committed against him has every right to go after the culprit and arrest him without any warrant even if in the process he enters the house of another against the latter’s will. [Sec. 6, Rule 113, Rules of Court]
Examples of trespass by means of intimidation: (3) Firing a revolver in the air by persons attempting to force their way into a house. (4) The flourishing of a bolo against inmates of the house upon gaining an entrance
ARTICLE 281 TRESPASS
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OTHER
FORMS
OF
Elements: (e) Offender enters the closed premises or the fenced estate of another; (f) The entrance is made while either of them is uninhabited; (g) The prohibition to enter is manifest; (h) The trespasser has not secured the permission of the owner or the caretaker thereof.
In the prosecution for trespass, the material fact or circumstance to be considered is the occurrence of the trespass. The gravamen of the crime is violation of possession or the fact of having caused injury to the right of the possession. [Marzalado v. People] If a person was killed after trespass by the offender, the following crimes are committed: o If there was no intent to kill when he entered – separate crimes of homicide or murder qualified by trespass to dwelling o If there was intent to kill when he entered – the crime of homicide/murder with dwelling as an aggravating circumstance
Premises – signifies distinct and definite locality. It may mean a room, shop, building or definite area, but in either case, locality is fixed. Qualified Trespass vs. Other Forms of Trespass QUALIFIED TRESPASS DWELLING (ART. 280)
Trespass may be committed by the owner of a dwelling (i.e. lessor enters the house leased to another against the latter’s will).
TO
OTHER FORMS TRESPASS (ART. 281)
OF
Offender is a private The offender is any person person
Cases to which the provision of this article is NOT applicable: (4) If the entrance to another’s dwelling is made for the purpose of preventing some serious harm to himself, the occupants of the dwelling, or a third person.
Offender enters a Offender enters closed dwelling premises or fenced estate Place entered inhabited
is Place entered uninhabited
is
Act constituting the It is the entering the 375
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(e) Such wrong amounts to a crime. (f) Threat is not subject to a condition.
crime is entering the closed premises or the dwelling against the fenced estate without will of the owner securing the permission of the owner or caretaker thereof Prohibition to enter Prohibition to enter must is express or implied be manifest
Qualifying Circumstance: If threat was made (3) in writing OR (4) through a middleman.
ARTICLE 282 - GRAVE THREATS
It is essential that there be intimidation.
Mode 1: threatening, even not unlawful Threatening another with the infliction upon his person, honor or property or that of this family of any wrong amounting to a crime and demanding money or imposing any other condition, even though not unlawful, and the offender attained his purpose;
As the crime consists in threatening another with some future harm, it is not necessary that the offended party was present at the time the threats were made. It is sufficient that the threats came to the knowledge of the offended party. When consummated: As soon as the threats came to the knowledge of the offended party.
Elements: (e) Offender threatens another person with the infliction upon the latter’s person, honor or property, or upon that of the latter’s family, of any wrong. (f) Such wrong amounts to a crime. (g) There is a demand for money or that any other condition is imposed, even though not unlawful. (h) Offender attains his purpose.
Threats made in connection with the commission of other crimes are absorbed by the latter. The offender in grave threats does not demand the delivery on the spot of the money or other personal property demanded by him. When threats are made and money is taken on the spot, the crime may be robbery with intimidation.
Mode 2: threat w/o attaining purpose Making such threat without the offender attaining his purpose;
The penalties for the first two types of grave threats depend upon the penalties for the crimes threatened to be committed. One degree lower if the purpose is attained, and two degrees lower if the purpose is not attained.
Mode 3: threat = crime Threatening another with the infliction upon his person, honor or property or that of his family of any wrong amounting to a crime, the threat not being subject to a condition.
If the threat is not subject to a condition, the penalty is fixed at arresto mayor and a fine not exceeding 500 pesos.
Elements: (d) Offender threatens another person with the infliction upon the latter’s person, honor or property, or upon that of the latter’s family, of any wrong.
In the first two types, if the threat is made in writing or through a middleman, the penalty is to be imposed in its maximum period. 376
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The third type of grave threats must be serious and deliberate; the offender must persist in the idea involved in his threats. The threat should not be made in the heat of anger, because such is punished under Article 285. If the condition is not proved, it is grave threats of the third type.
Bond for Good Bond to Keep the Peace Behavior Applicable only Not made applicable to any to grave threats particular case and light threats If offender fails to give bail, he shall be sentenced to destierro
ARTICLE 283 - LIGHT THREATS Elements: (e) Offender makes a threat to commit a wrong; (f) The wrong does not constitute a crime; (g) There is a demand for money or that other condition is imposed, even though not unlawful; (h) Offender has attained his purpose or, that he has not attained his purpose.
ARTICLE 285 – OTHER LIGHT THREATS Mode 1: threat w/weapon in a quarrel Threatening another with a weapon, or by drawing such weapon in a quarrel, unless it be in lawful self-defense;
Blackmailing may be punished under this article. LIGHT THREATS
Mode 2: oral threat = crime, in anger Orally threatening another, in the heat of anger, with some harm constituting a crime, without persisting in the idea involved in his threat;
Act threatened Act threatened does not amounts to a crime amount to a crime
ARTICLE 284 BEHAVIOR
-
BOND
FOR
If the offender fails to give bond, he shall be detained for a period not exceeding 6 months (if prosecuted for grave/less grave felony) or not exceeding 30 days (light felony)
NOT a distinct A distinct penalty penalty
The harm threatened must not be in the nature of crime and there is a demand for money or any other condition is imposed, even though lawful.
GRAVE THREATS
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GOOD
When a person is required to give bail bond: (3) When he threatens another under circumstances mentioned in Art. (Grave Threats). (4) When he threatens another under circumstances mentioned in Art. (Light Threats).
Mode 3: oral threat = not felony Orally threatening to do another any harm not constituting a felony.
the 282
Under the first type, the subsequent acts of the offender must show that he did not persist in the idea involved in the threat.
the 283
Threats which are ordinarily grave threats, if made in the heat of anger, may be other light threats.
Bond for Good Behavior distinguished from Bond to Keep the Peace
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If the threats are directed to a person who is absent and uttered in a temporary fit of anger, the offense is only other light threats.
Two ways of committing Grave Coercion: (3) Preventive – Preventing another, by means of violence, threats, or intimidation, from doing something not prohibited by law (4) Compulsive – Compelling another, by means of violence, threats, or intimidation, to do something against his will, whether it be right or wrong
OTHER LIGHT GRAVE THREATS AND LIGHT THREATS THREATS No demand for In certain cases, demand for money money is material No condition In certain cases, imposed imposed condition is material. Threat is deliberate
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Purpose of the Law: To enforce the principle that no person may take the law into his hands, and that our government is one of law, not of men.
not Threat is deliberate
Arises only if the act which the offender prevented another to do is not prohibited by law or ordinance.
ARTICLE 286 - GRAVE COERCIONS Mode 1: preventing w/violence, something not prohibited by law Preventing another, by means of violence, threats or intimidation, from doing something not prohibited by law;
If a person prohibits another to do an act because the act is a crime, even though some sort of violence or intimidation is employed, it would not give rise to grave coercion. It may only give rise to threat or physical injuries, if some injuries are inflicted.
Mode 2: compelling another to do something vs. will Compelling another, by means of violence, threats or intimidation, to do something against his will, whether it be right or wrong.
In case of grave coercion where the offended party is being compelled to do something against his will, whether it be wrong or not, the crime of grave coercion is committed if violence or intimidation is employed in order to compel him to do the act.
Elements: (d) A person prevented another from doing something not prohibited by law, or that he compelled him to do something against his will; be it right or wrong; (e) The prevention or compulsion be effected by violence, threats or intimidation; and (f) The person that restrained the will and liberty of another had not the authority of law or the right to do so, or in other words, that the restraint shall not be made under authority of law or in the exercise of any lawful right.
A public officer who shall prevent by means of violence or threats the ceremonies or manifestations of any religion is guilty of interruption of religious worship (Art. 132). Any person who, by force, prevents the meeting of a legislative body is liable under Art. 143. Any person who shall use force or intimidation to prevent any member of Congress from attending the meetings thereof, expressing his
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opinions, or casting his vote is liable under Art. 145.
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purpose of applying the same to the payment of the debt.
The crime is not grave coercion when the violence is employed to seize anything belonging to the debtor of the offender. It is light coercion under Art. 287.
Unjust Vexation Any act committed without violence, but which unjustifiably annoys or vexes an innocent person amounts to light coercion. It should include any human conduct which, although not productive of some physical or material harm would, however, unjustifiably annoy or vex an innocent person.
Coercion is consummated even if the offended party did not accede to the purpose of coercion. The owner of a thing has no right to prohibit the interference of another with the same, if the interference is necessary to avert an imminent danger and the threatened damage, compared to the damage arising to the owner from the interference, is much greater. (Art. 432, Civil Code)
Unjust Vexation is distinguished from grave coercion by the absence of violence. THREATS Intimidation essential
Neither the crime of threats nor coercion is committed although the accused, a branch manager of a bank made the complainant sign a withdrawal slip for the amount needed to pay the spurious dollar check she had encashed, and also made her execute an affidavit regarding the return of the amount against her better sense and judgment. The complainant may have acted reluctantly and with hesitation, but still, it was voluntary. [Lee v. CA]
COERCION is Intimidation or violence is the essence of the crime
Intimidation is future Force or violence must and conditional be imminent, actual, and immediate Intimidation is Intimidation is directed directed against the against the victim only victim or his family
ARTICLE 288 COERCIONS
ARTICLE 287 - LIGHT COERCIONS
-
OTHER
SIMILAR
Mode 1: force/compel to buy commodities from him Forcing or compelling, directly or indirectly, or knowingly permitting the forcing or compelling of the laborer or employee of the offender to purchase merchandise of commodities of any kind from him;
Elements: (e) Offender must be a creditor; (f) He seizes anything belonging to his debtor: (g) The seizure of the thing be accomplished by means of violence or a display of material force producing intimidation; (h) The purpose of the offender is to apply the same to the payment of the debt.
Elements: (d) Offender is any person, agent or officer of any association or corporation; (e) He or such firm or corporation has employed laborers or employees;
Deals with light coercions wherein violence is employed by the offender who is a creditor in seizing anything belonging to his debtor for the 379
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ARTICLE 289 FORMATION, MAINTENANCE, AND PROHIBITION OF COMBINATION OF CAPITAL OR LABOR THROUGH VIOLENCE OR THREATS
(f) He forces or compels, directly or indirectly, or knowingly permits to be forced or compelled, any of his or its laborers or employees to purchase merchandise or commodities of any kind from him or from said firm or corporation.
Elements: (c) Offender employs violence or threats, in such a degree as to compel or force the laborers or employers in the free and legal exercise of their industry or work; (d) The purpose is to organize, maintain or prevent coalitions of capital or labor, strike of laborers or lockout of employers.
Mode 2: wages paid by token or obj Paying the wages due his laborer or employee by means of tokens or object other than the legal tender currency of the Philippines, unless expressly requested by such laborer or employee. Elements: (d) Offender pays the wages due a laborer or employee employed by him by means of tokens or object; (e) Those tokens or objects are other than the legal tender currency of the Philippines; (f) Such employee or laborer does not expressly request that he be paid by means of tokens or objects.
Repealed by the Labor Code.
General rule: wages shall be paid in legal tender and the use of tokens, promissory notes, vouchers, coupons or any other forms alleged to represent legal tender is absolutely prohibited even when expressly requested by the employee. (Section 1, Rule VIII, Book III, Omnibus Rules Implementing the Labor Code)
Elements: (e) Offender is a private individual or even a public officer not in the exercise of his official function; (f) He seizes the papers or letters of another; (g) The purpose is to discover the secrets of such another person; (h) Offender is informed of the contents of the papers or letters seized.
CHAPTER III: DISCOVERY REVELATION OF SECRETS
AND
ARTICLE 290 - DISCOVERING SECRETS THROUGH SEIZURE OF CORRESPONDENCE
No employer shall limit or otherwise interfere with the freedom of any employee to dispose of his wages. He shall not in any manner force, compel, oblige his employees to purchase merchandise, commodities or other property from the employer or from any other person. (Art. 112, Labor Code.)
This is a crime against the security of one’s papers and effects. The purpose must be to discover its effects. The act violates the privacy of communication. According to Dean Ortega, it is not necessary that the offender should actually discover the contents of the letter. Reyes, citing People v. Singh, CA, 40 OG, Suppl. 5, 35, believes otherwise.
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The last paragraph of Article 290 expressly makes the provision of the first and second paragraph thereof inapplicable to parents, guardians, or persons entrusted with the custody of minors placed under their care or custody, and to the spouses with respect to the papers or letters of either of them.
Essence of this crime is that the offender learned of the secret in the course of his employment.
The teachers or other persons entrusted with the care and education of minors are included in the exceptions.
Reason: no one has a right to the personal privacy of another.
He is enjoying a confidential relation with the employer or master so he should respect the privacy of matters personal to the latter.
ARTICLE 292 - REVELATION INDUSTRIAL SECRETS
Distinction from estafa, damage to property, and unjust vexation: (4) If the act had been executed with intent to gain, it would be estafa; (5) If, on the other hand, the purpose was not to defraud, but only to cause damage to another, it would merit the qualification of damage to property; (6) If the intention was merely to cause vexation preventing another to do something which the law does not prohibit or compel him to execute what he does not want, the act should be considered as unjust vexation.
OF
Elements: (e) Offender is a person in charge, employee or workman of a manufacturing or industrial establishment; (f) The manufacturing or industrial establishment has a secret of the industry which the offender has learned; (g) Offender reveals such secrets; (h) Prejudice is caused to the owner. Secrets must relate to manufacturing processes. The act constituting the crime is revealing the secret of the industry which the offender has learned.
ARTICLE 291 - REVEALING SECRETS WITH ABUSE OF OFFICE Elements: (d) Offender is a manager, employee or servant; (e) He learns the secrets of his principal or master in such capacity; (f) He reveals such secrets.
The revelation of the secret might be made after the employee or workman had ceased to be connected with the establishment. Prejudice is an element of the offense.
SPECIAL LAWS RA 4200 (ANTI WIRE TAPPING ACT)
An employee, manager, or servant who came to know of the secret of his master or principal in such capacity and reveals the same shall also be liable regardless of whether or not the principal or master suffered damages.
Punishable Acts It shall be unlawful for: (3) Any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, 381
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to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dictaphone or walkie-talkie or tape recorder, or however otherwise described: (4) Any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition.
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Exceptions: Any peace officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful in the two preceding sections in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the RPC, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security: Provided, That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and a showing: (4) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed; (5) that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any of such crimes; and (6) that there are no other means readily available for obtaining such evidence.
Section 2. Any person who willfully or knowingly does or who shall aid, permit, or cause to be done any of the acts declared to be unlawful in the preceding section or who violates the provisions of the following section or of any order issued thereunder, or aids, permits, or causes such violation shall, upon conviction thereof, be punished by imprisonment for not less than six months or more than six years and with the accessory penalty of perpetual absolute disqualification from public office if the offender be a public official at the time of the commission of the offense, and, if the offender is an alien he shall be subject to deportation proceedings.
RA 9327 (HUMAN SECURITY ACT) Surveillance of Suspects and Interception and Recording of Communications SEC. 7. The provisions of RA 4200 (Anti-wire Tapping Law) to the contrary notwithstanding, 382
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a police or law enforcement official and the members of his team may, upon a written order of the Court of Appeals, listen to, intercept and record, with the use of any mode, form, kind or type of electronic or other surveillance equipment or intercepting and tracking devices, or with the use of any other suitable ways and means for that purpose, any communication, message, conversation, discussion, or spoken or written words between members of a judicially declared and outlawed terrorist organization, association, or group of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism.
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that evidence, which is essential to the conviction of any charged or suspected person for, or to the solution or prevention of, any such crimes, will be obtained; and, (c) that there is no other effective means readily available for acquiring such evidence. SEC. 9. Classification and Contents of the Order of the Court. - The written order granted by the authorizing division of the Court of Appeals as well as its order, if any, to extend or renew the same, the original application of the applicant, including his application to extend or renew, if any, and the written authorizations of the AntiTerrorism Council shall be deemed and are hereby declared as classified information: Provided, That the person being surveilled or whose communications, letters, papers, messages, conversations. Discussions, spoken or written words and effects have been monitored, listened to, bugged or recorded by law enforcement authorities has the right to be informed of the acts done by the law enforcement authorities in the premises or to challenge, if he or she intends to do so, the legality of the interference before the Court of Appeals which issued the written order. The written order of the authorizing division of the Court of Appeals shall specify the following: (a) the identity, such as name and address, if known, of the charged or suspected person whose communications, messages, conversations, discussions, or spoken or written words are to be tracked down, tapped, listened to, intercepted, and recorded and, in the case of radio, electronic, or telephonic (whether wireless or otherwise) communications, messages, conversations, discussions, or spoken or written words, the electronic transmission systems or the telephone numbers to be tracked down, tapped, listened to, intercepted, and recorded and their locations or if the person suspected of the crime of terrorism or conspiracy to commit terrorism is not fully known, such person shall be subject to
Provided, That surveillance, interception and recording of communications between lawyers and clients, doctors and patients, journalists and their sources and confidential business correspondence shall not be authorized. SEC. 8. Formal Application for Judicial Authorization. - The written order of the authorizing division of the Court of Appeals to track down, tap, listen to, intercept, and record communications, messages, conversations, discussions, or spoken or written words of any person suspected of the crime of terrorism or the crime of conspiracy to commit terrorism shall only be granted by the authorizing division of the Court of Appeals upon an ex parte written application of a police or of a law enforcement official who has been duly authorized in writing by the Anti-Terrorism Council created in Section 53 of this Act to file such ex parte application, and upon examination under oath or affirmation of the applicant and the witnesses he may produce to establish: (a) that there is probable cause to believe based on personal knowledge of facts or circumstances that the said crime of terrorism or conspiracy to commit terrorism has been committed, or is being committed, or is about to be committed; (b) that there is probable cause to believe based on personal knowledge of facts or circumstances 383
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continuous surveillance provided there is a reasonable ground to do so; (b) the identity (name, address, and the police or law enforcement organization) of the police or of the law enforcement official, including the individual identity (names, addresses, and the police or law enforcement organization) of the members of his team, judicially authorized to track down, tap, listen to, intercept, and record the communications, messages, conversations, discussions, or spoken or written words; (c) the offense or offenses committed, or being committed, or sought to be prevented; and, (d) the length of time within which the authorization shall be used or carried out.
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the liability of the police or law enforcement personnel under Section 20 hereof, the applicant police or law enforcement official shall have thirty (30) days after the termination of the period granted by the Court of Appeals as provided in the preceding paragraphs within which to file the appropriate case before the Public Prosecutor’s Office for any violation of this Act. If no case is filed within the thirty (30)-day period, the applicant police or law enforcement official shall immediately notify the person subject of the surveillance, interception and recording of the termination of the said surveillance, interception and recording. The penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon the applicant police or law enforcement official who fails to notify the person subject of the surveillance, monitoring, interception and recording as specified above.
SEC. 10. Effective Period of Judicial Authorization. - Only for the length of time specified in the written order of the authorizing division of the Court of Appeals, which shall not exceed a period of thirty (30) days from the date of receipt of the written order of the authorizing division of the CA by the applicant police or law enforcement official.
SEC. 11. Custody of Intercepted and Recorded Communications. - All tapes, discs, and recordings made pursuant to the authorization of the authorizing division of the CA, including all excerpts and summaries thereof as well as all written notes or memoranda made in connection therewith, shall, within forty-eight (48) hours after the expiration of the period fixed in the written order of the authorizing division of the CA or within forty-eight (48) hours after the expiration of any extension or renewal granted by the authorizing division of the Court of Appeals, be deposited with the authorizing Division of the CA in a sealed envelope or sealed package, as the case may be, and shall be accompanied by a joint affidavit of the applicant police or law enforcement official and the members of his team.
The authorizing division of the CA may extend or renew the said authorization for another nonextendible period, which shall not exceed 30 days from the expiration of the original period: Provided, That the authorizing division of the CA is satisfied that such extension or renewal is in the public interest: and Provided, further, That the ex parte application for extension or renewal, which must be filed by the original applicant, has been duly authorized in writing by the Anti-Terrorism Council. In case of death of the original applicant or in case he is physically disabled to file the application for extension or renewal, the one next in rank to the original applicant among the members of the team named in the original written order of the authorizing division of the CA shall file the application for extension or renewal: Provided, That, without prejudice to
In case of death of the applicant or in case he is physically disabled to execute the required affidavit, the one next in rank to the applicant 384
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among the members of the team named in the written order of the authorizing division of the CA shall execute with the members of the team that required affidavit.
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part of any of such tapes, discs, and recordings, and that no duplicates or copies of the whole or any part of any of such excerpts, summaries, written notes, and memoranda, have been made, or, if made, that all such duplicates and copies are included in the sealed envelope or sealed package, as the case may be, deposited with the authorizing division of the Court of Appeals.
It shall be unlawful for any person, police officer or any custodian of the tapes, discs and recording, and their excerpts and summaries, written notes or memoranda to copy in whatever form, to remove, delete, expunge, incinerate, shred or destroy in any manner the items enumerated above in whole or in part under any pretext whatsoever.
It shall be unlawful for any person, police or law enforcement official to omit or exclude from the joint affidavit any item or portion thereof mentioned in this Section.
Any person who removes, deletes, expunges incinerates, shreds or destroys the items enumerated above shall suffer a penalty of not less than six (6) years and one day to twelve (12) years of imprisonment.
Any person, police or law enforcement officer who violates any of the acts proscribed in the preceding paragraph shall suffer the penalty of not less than ten (10) years and one day to twelve (12) years of imprisonment.
SEC. 12. Contents of Joint Affidavit. - The joint affidavit of the police or of the law enforcement official and the individual members of his team shall state: (a) the number of tapes, discs, and recordings that have been made, as well as the number of excerpts and summaries thereof and the number of written notes and memoranda, if any, made in connection therewith; (b) the dates and times covered by each of such tapes, discs, and recordings; (c) the number of tapes, discs, and recordings, as well as the number of excerpts and summaries thereof and the number of written notes and memoranda made in connection therewith that have been included in the deposit; and (d) the date of the original written authorization granted by the AntiTerrorism Council to the applicant to file the ex parte application to conduct the tracking down, tapping, intercepting, and recording, as well as the date of any extension or renewal of the original written authority granted by the authorizing division of the Court of Appeals.
SEC. 13. Disposition of Deposited Materials. - The sealed envelope or sealed package and the contents thereof, which are deposited with the authorizing division of the Court of Appeals, shall be deemed and are hereby declared classified information, and the sealed envelope or sealed package shall not be opened and its contents (including the tapes, discs, and recordings and all the excerpts and summaries thereof and the notes and memoranda made in connection therewith) shall not be divulged, revealed, read, replayed, or used as evidence unless authorized by written order of the authorizing division of the Court of Appeals, which written order shall be granted only upon a written application of the Department of Justice filed before the authorizing division of the Court of Appeals and only upon a showing that the Department of Justice has been duly authorized in writing by the Anti-Terrorism Council to file the application with proper written notice to the person whose conversation, communication, message discussion or spoken or written words have been the subject of
The joint affidavit shall also certify under oath that no duplicates or copies of the whole or any 385
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surveillance, monitoring, recording and interception to open, reveal, divulge, and use the contents of the sealed envelope or sealed package as evidence.
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contained therein, including their existence, content, substance, purport, effect, or meaning, which have been secured in violation of the pertinent provisions of this Act, shall absolutely not be admissible and usable as evidence against anybody in any judicial, quasi-judicial, legislative, or administrative investigation, inquiry, proceeding, or hearing.
Any person, law enforcement official or judicial authority who violates his duty to notify in writing the persons subject of the surveillance as defined above shall suffer the penalty of six (6) years and one day to eight (8) years of imprisonment.
SEC. 16. Penalty for Unauthorized or malicious Interceptions and/or Recordings. - Any police or law enforcement personnel who, not being authorized to do so by the authorizing division of the Court of Appeals, tracks down, taps, listens to, intercepts, and records in whatever manner or form any communication, message, conversation, discussion, or spoken or written word of a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism shall be guilty of an offense and shall suffer the penalty of ten (10) years and one day to twelve (12) years of imprisonment.
SEC. 14. Application to Open Deposited Sealed Envelop or Sealed Package. - The written application with notice to the party concerned to open the deposited sealed envelope or sealed package shall clearly state the purpose or reason: (a) for opening the sealed envelope or sealed package; (b) for revealing or disclosing its classified contents; (c) for replaying, divulging, and or reading any of the listened to, intercepted, and recorded communications, messages, conversations, discussions, or spoken or written words (including any of the excerpts and summaries thereof and any of the notes or memoranda made in connection therewith); and, (d) for using any of said listened to, intercepted, and recorded communications, messages, conversations, discussions, or spoken or written words (including any of the excerpts and summaries thereof and any of the notes or memoranda made in connection therewith) as evidence.
In addition to the liability attaching to the offender for the commission of any other offense, the penalty of ten (10) years and one day to twelve (12) years of imprisonment and the accessory penalty of perpetual absolute disqualification from public office shall be imposed upon any police or law enforcement personnel who maliciously obtained an authority from the Court of Appeals to track down, tap, listen to, intercept, and record in whatever manner or form any communication, message, conversation, discussion, or spoken or written words of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism: Provided, That notwithstanding Section 13 of this Act, the party aggrieved by such authorization shall be allowed access to the sealed envelope or sealed package and the contents thereof as evidence for the prosecution of any police or law enforcement personnel who maliciously procured said authorization.
Any person, law enforcement official or judicial authority who violates his duty to notify as defined above shall suffer the penalty of six (6) years and one day to eight (8) years of imprisonment. SEC. 15. Evidentiary Value of Deposited Materials. - Any listened to, intercepted, and recorded communications, messages, conversations, discussions, or spoken or written words, or any part or parts thereof, or any information or fact 386
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Restriction on Travel
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after satisfying themselves of the existence of probable cause in a hearing called for that purpose that (1) a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, (2) of a judicially declared and outlawed terrorist organization, association, or group of persons, and (3) of a member of such judicially declared and outlawed organization, association, or group of persons, may authorize in writing any police or law enforcement officer and the members of his/her team duly authorized in writing by the anti-terrorism council to: (a) examine, or cause the examination of, the deposits, placements, trust accounts, assets and records in a bank or financial institution; and (b) gather or cause the gathering of any relevant information about such deposits, placements, trust accounts, assets, and records from a bank or financial institution. The bank or financial institution concerned shall not refuse to allow such examination or to provide the desired information, when so ordered by and served with the written order of the Court of Appeals.
SEC. 26. Restriction on Travel. – In cases where evidence of guilt is not strong, and the person charged with the crime of terrorism or conspiracy to commit terrorism is entitled to bail and is granted the same, the court, upon application by the prosecutor, shall limit the right of travel of the accused to within the municipality or city where he resides or where the case is pending, in the interest of national security and public safety, consistent with Article III, Section 6 of the Constitution. Travel outside of said municipality or city, without the authorization of the court, shall be deemed a violation of the terms and conditions of his bail, which shall then be forfeited as provided under the Rules of Court. He or she may also be placed under house arrest by order of the court at his or her usual place of residence. While under house arrest, he or she may not use telephones, cellphones, e-mails, computers, the internet or other means of communications with people outside the residence until otherwise ordered by the court.
Application SEC. 28. Application to Examine Bank Deposits, Accounts, and Records. - The written order of the Court of Appeals authorizing the examination of bank deposits, placements, trust accounts, assets, and records: (1) of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, (2) of any judicially declared and outlawed terrorist organization, association, or group of persons, or (3) of any member of such organization, association, or group of persons in a bank or financial institution, and the gathering of any relevant information about the same from said bank or financial institution, shall only be granted by the authorizing division of the Court of Appeals upon an ex parte application to that effect of a police or of a law enforcement official
The restrictions abovementioned shall be terminated upon the acquittal of the accused or of the dismissal of the case filed against him or earlier upon the discretion of the court on motion of the prosecutor or of the accused. Examination of Bank Deposits and Documents JUDICIAL AUTHORIZATION SEC. 27. Judicial Authorization Required to Examine Bank Deposits, Accounts, and Records. - The provisions of Republic Act No. 1405 as amended, to the contrary notwithstanding, the justices of the Court of Appeals designated as a special court to handle anti-terrorism cases 387
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who has been duly authorized in writing to file such ex parte application by the Anti-Terrorism Council created in Section 53 of this Act to file such ex parte application, and upon examination under oath or affirmation of the applicant and the witnesses he may produce to establish the facts that will justify the need and urgency of examining and freezing the bank deposits, placements, trust accounts, assets, and records: (1) of the person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, (2) of a judicially declared and outlawed terrorist organization, association or group of persons, or (3) of any member of such organization, association, or group of persons.
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persons, as the case may be, whose deposits, placements, trust accounts, assets, and records are to be examined or the information to be gathered; (b) the identity of the bank or financial institution where such deposits, placements, trust accounts, assets, and records are held and maintained; (c) the identity of the persons who will conduct the said examination and the gathering of the desired information; and, (d) the length of time the authorization shall be carried out. SEC. 30. Effective Period of Court Authorization to Examine and Obtain Information on Bank Deposits, Accounts, and Records. - The authorization issued or granted by the authorizing division of the Court of Appeals to examine or cause the examination of and to freeze bank deposits, placements, trust accounts, assets, and records, or to gather information about the same, shall be effective for the length of time specified in the written order of the authorizing division of the Court of Appeals, which shall not exceed a period of thirty (30) days from the date of receipt of the written order of the authorizing division of the Court of Appeals by the applicant police or law enforcement official.
SEC. 29. Classification and Contents of the Court Order Authorizing the Examination of Bank Deposits, Accounts, and Records. - The written order granted by the authorizing division of the Court of Appeals as well as its order, if any, to extend or renew the same, the original ex parte application of the applicant, including his ex parte application to extend or renew, if any, and the written authorizations of the Anti Terrorism Council, shall be deemed and are hereby declared as classified information: Provided, That the person whose bank deposits, placements, trust accounts, assets, and records have been examined, frozen, sequestered and seized by law enforcement authorities has the right to be informed of the acts done by the law enforcement authorities in the premises or to challenge, if he or she intends to do so, the legality of the interference. The written order of the authorizing division of the Court of Appeals designated to handle cases involving terrorism shall specify: (a) the identity of the said: (1) person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, (2) judicially declared and outlawed terrorist organization, association, or group of persons, and (3) member of such judicially declared and outlawed organization, association, or group of
The authorizing division of the Court of Appeals may extend or renew the said authorization for another period, which shall not exceed thirty (30) days renewable to another thirty (30) days from the expiration of the original period, provided that the authorizing division of the Court of Appeals is satisfied that such extension or renewal is in the public interest, and provided further that the application for extension or renewal, which must be filed by the original applicant, has been duly authorized in writing by the Anti-Terrorism Council. In case of death of the original applicant or in case he is physically disabled to file the application for extension or renewal, the one 388
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next in rank to the original applicant among the members of the team named in the original written order of the authorizing division of the Court of Appeals shall file the application for extension or renewal: Provided, That, without prejudice to the liability of the police or law enforcement personnel under Section 19 hereof, the applicant police or law enforcement official shall have thirty (30) days after the termination of the period granted by the Court of Appeals as provided in the preceding paragraphs within which to file the appropriate case before the Public Prosecutor’s Office for any violation of this Act.
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outlawed terrorist organization, association, or group of persons, or (3) a member of any such organization, association, or group of persons shall, within forty-eight (48) hours after the expiration of the period fixed in the written order of the authorizing division of the Court of Appeals or within forty-eight (48) hours after the expiration of the extension or renewal granted by the authorizing division of the Court of Appeals, be deposited with the authorizing division of the Court of Appeals in a sealed envelope or sealed package, as the case may be, and shall be accompanied by a joint affidavit of the applicant police or law enforcement official and the persons who actually conducted the examination of said bank deposits, placements, trust accounts, assets and records.
If no case is filed within the thirty (30)-day period, the applicant police or law enforcement official shall immediately notify in writing the person subject of the bank examination and freezing of bank deposits, placements, trust accounts, assets and records. The penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon the applicant police or law enforcement official who fails to notify in writing the person subject of the bank examination and freezing of bank deposits, placements, trust accounts, assets and records.
SEC. 32. Contents of Joint Affidavit. - The joint affidavit shall state: (a) the identifying marks, numbers, or symbols of the deposits, placements, trust accounts, assets, and records examined; (b) the identity and address of the bank or financial institution where such deposits, placements, trust accounts, assets, and records are held and maintained; (c) the number of bank deposits, placements, trust accounts, assets, and records discovered, examined, and frozen; (d) the outstanding balances of each of such deposits, placements, trust accounts, assets; (e) all information, data, excerpts, summaries, notes, memoranda, working sheets, reports, documents, records examined and placed in the sealed envelope or sealed package deposited with the authorizing division of the Court of Appeals; (f) the date of the original written authorization granted by the Anti-Terrorism Council to the applicant to file the ex parte application to conduct the examination of the said bank deposits, placements, trust accounts, assets and records, as well as the date of any extension or renewal of the original written authorization granted by the authorizing division of the Court of Appeals; and (g) that the items enumerated were all that
Any person, law enforcement official or judicial authority who violates his duty to notify in writing as defined above shall suffer the penalty of six (6) years and one day to eight (8) years of imprisonment. SEC. 31. Custody of Bank Data and Information Obtained after Examination of Deposits, Placements, Trust Accounts, Assets and Records. - All information, data, excerpts, summaries, notes, memoranda, working sheets, reports, and other documents obtained from the examination of the bank deposits, placements, trust accounts, assets and records of: (1) a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism, (2) a judicially declared and 389
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RA 9208: ANTI-TRAFFICKING PERSONS ACT OF 2003
were found in the bank or financial institution examined at the time of the completion of the examination.
IN
Trafficking in Persons - refers to the recruitment, transportation, transfer or harboring, or receipt of persons with or without the victim's consent or knowledge, within or across national borders by means of threat or use of force, or other forms of coercion, abduction, fraud, deception, abuse of power or of position, taking advantage of the vulnerability of the person, or, the giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation which includes at a minimum, the exploitation or the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery, servitude or the removal or sale of organs.
The joint affidavit shall also certify under oath that no duplicates or copies of the information, data, excerpts, summaries, notes, memoranda, working sheets, reports, and documents acquired from the examination of the bank deposits, placements, trust accounts, assets and records have been made, or, if made, that all such duplicates and copies are placed in the sealed envelope or sealed package deposited with the authorizing division of the Court of Appeals. It shall be unlawful for any person, police officer or custodian of the bank data and information obtained after examination of deposits, placements, trust accounts, assets and records to copy, to remove, delete, expunge, incinerate, shred or destroy in any manner the items enumerated above in whole or in part under any pretext whatsoever.
The recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation shall also be considered as "trafficking in persons" even if it does not involve any of the means set forth in the preceding paragraph.
Any person who copies, removes, deletes, expunges incinerates, shreds or destroys the items enumerated above shall suffer a penalty of not less than six (6) years and one day to twelve (12) years of imprisonment.
Punishable Acts Section 4. Acts of Trafficking in Persons. - It shall be unlawful for any person, natural or juridical, to commit any of the following acts: (9) To recruit, transport, transfer; harbor, provide, or receive a person by any means, including those done under the pretext of domestic or overseas employment or training or apprenticeship, for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; (10) To introduce or match for money, profit, or material, economic or other consideration, any person or, as provided for under Republic Act No. 6955, any Filipino woman to a foreign national, for marriage
Unauthorized Revelation of Classified Materials SEC. 46. Penalty for Unauthorized Revelation of Classified Materials. - The penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon any person, police or law enforcement agent, judicial officer or civil servant who, not being authorized by the Court of Appeals to do so, reveals in any manner or form any classified information under this Act.
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for the purpose of acquiring, buying, offering, selling or trading him/her to engage in prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; (11) To offer or contract marriage, real or simulated, for the purpose of acquiring, buying, offering, selling, or trading them to engage in prostitution, pornography, sexual exploitation, forced labor or slavery, involuntary servitude or debt bondage; (12) To undertake or organize tours and travel plans consisting of tourism packages or activities for the purpose of utilizing and offering persons for prostitution, pornography or sexual exploitation; (13) To maintain or hire a person to engage in prostitution or pornography; (14) To adopt or facilitate the adoption of persons for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; (15) To recruit, hire, adopt, transport or abduct a person, by means of threat or use of force, fraud, deceit, violence, coercion, or intimidation for the purpose of removal or sale of organs of said person; and (16) To recruit, transport or adopt a child to engage in armed activities in the Philippines or abroad.
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as proof of compliance with government regulatory and pre-departure requirements for the purpose of promoting trafficking in persons; (10) advertise, publish, print, broadcast or distribute, or cause the advertisement, publication, printing, broadcasting or distribution by any means, including the use of information technology and the internet, of any brochure, flyer, or any propaganda material that promotes trafficking in persons; (11) assist in the conduct of misrepresentation or fraud for purposes of facilitating the acquisition of clearances and necessary exit documents from government agencies that are mandated to provide predeparture registration and services for departing persons for the purpose of promoting trafficking in persons; (12) facilitate, assist or help in the exit and entry of persons from/to the country at international and local airports, territorial boundaries and seaports who are in possession of unissued, tampered or fraudulent travel documents for the purpose of promoting trafficking in persons; (13) confiscate, conceal, or destroy the passport, travel documents, or personal documents or belongings of trafficked persons in furtherance of trafficking or to prevent them from leaving the country or seeking redress from the government or appropriate agencies; and (14) knowingly benefit from, financial or otherwise, or make use of, the labor or services of a person held to a condition of involuntary servitude, forced labor, or slavery.
Section 5. Acts that Promote Trafficking in Persons. - The following acts which promote or facilitate trafficking in persons, shall be unlawful to: (8) knowingly lease or sublease, use or allow to be used any house, building or establishment for the purpose of promoting trafficking in persons; (9) produce, print and issue or distribute unissued, tampered or fake counseling certificates, registration stickers and certificates of any government agency which issues these certificates and stickers
Section 6. Qualified Trafficking in Persons. - The following are considered as qualified trafficking: (8) When the trafficked person is a child;
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Title X. Crimes against Property
(9) When the adoption is effected through Republic Act No. 8043, otherwise known as the "Inter-Country Adoption Act of 1995" and said adoption is for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; (10) When the crime is committed by a syndicate, or in large scale. Trafficking is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons, individually or as a group; (11) When the offender is an ascendant, parent, sibling, guardian or a person who exercises authority over the trafficked person or when the offense is committed by a public officer or employee; (12) When the trafficked person is recruited to engage in prostitution with any member of the military or law enforcement agencies; (13) When the offender is a member of the military or law enforcement agencies; and (14) When by reason or on occasion of the act of trafficking in persons, the offended party dies, becomes insane, suffers mutilation or is afflicted with Human Immunodeficiency Virus (HIV) or the Acquired Immune Deficiency Syndrome (AIDS).
Chapter I: Robbery in General (1) Article 293 - Who Are Guilty of Robbery (2) Article 294 - With Violence or Intimidation of Persons (3) Article 295 - Robbery with Physical Injuries, in an Uninhabited Place and by a Band (4) Article 296 - Definition of a Band and Penalty Incurred by the Members Thereof (5) Article 297 - Attempted and Frustrated Robbery with Homicide (6) Article 298 - Execution of Deeds through Violence or Intimidation (7) Article 299 - Robbery in an Inhabited House or Public Building or Edifice Devoted to Worship (8) Article 300 - Robbery in an Uninhabited Place and by a Band (9) Article 302 - In an Uninhabited Place or Private Building (10) Article 303 - Robbery of Cereals, Fruits or Firewood in an Inhabited Place or Private Building (11) Article 304 - Possession of Picklock or Similar Tools (12) Article 305 - False Keys Chapter 2: Brigandage (1) Article 306 - Who Are Brigands (2) Article 307 - Aiding and Abetting a Band of Brigands Chapter 3: Theft (1) Article 308 - Who Are Liable for Theft (2) Article 309 – Penalties (3) Article 310 - Qualified Theft (4) Article 311 - Theft of the Property of the National Library and National Museum Chapter 4: Usurpation (1) Article 312 - Occupation of Real Property or Usurpation of Real Rights in Property 392
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(2) Article 313 - Altering Boundaries or Landmarks
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The property taken must be personal, if real property/right is usurped the crime is usurpation (Art. 312).
Chapter 5: Culpable Insolvency (1) Article 314 - Fraudulent Insolvency
Prohibitive articles may be the subject of robbery, e.g., opium
Chapter 6: Swindling (1) Article 315 – Estafa (2) Article 316 - Other Forms of Swindling (3) Article 317 - Swindling of a Minor (4) Article 318 - Other Deceits
From the moment the offender gains possession of the object, even without the chance to dispose of the same, the unlawful taking is complete.
Chapter 7: Chattel mortgage (1) Article 319 - Removal, Sale, or Pledge of Mortgaged Property
“Taking” – depriving the offended party of possession of the thing taken with the character of permanency.
Chapter 8: Arson and other Crimes involving Destruction
Intent to gain is presumed from the unlawful taking. It cannot be established by direct evidence, except in case of confession.
Chapter 9: Malicious mischief (6) Article 327 - Who Are Responsible (7) Article 328 - Special Cases of Malicious Mischief (8) Article 329 - Other Mischiefs (9) Article 330 - Damage and Obstruction to Means of Communication (10) Article 331 - Destroying or Damaging Statues, Public Monuments or Paintings
It is not necessary that violence or intimidation is present from the beginning. If the violence or intimidation at any time before asportation is complete, the taking of property is qualified to robbery. When is UNLAWFUL TAKING complete? In Robbery with violence against or intimidation of persons, even if the culprit has had no opportunity to dispose of the same, the unlawful taking is complete. There is no frustrated stage.
Chapter 10: Exemption from Criminal Liability (2) Article 332 - Exemption from Criminal Liability in Crimes Against Property
CHAPTER I: ROBBERY IN GENERAL
In Robbery with force upon things, the thing must be taken out of the building to consummate the crime. There is a FRUSTRATED STAGE. (e.g. when the culprit had already broken the floor of the bodega, had entered it, and had removed one sack of sugar from the pile, but was caught in the act of taking out the sack through the opening of the door, crime committed is FRUSTRATED ROBBERY)
ARTICLE 293 - WHO ARE GUILTY OF ROBBERY Elements of Robbery in General: (a) Personal property (b) Belonging to another (c) There is unlawful taking (d) With Intent to gain (e) Violence against or intimidation of any person OR force upon anything 393
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When is violence committed? GENERAL RULE: Violence or intimidation must be present BEFORE the taking of personal property is complete.
mutilation, serious (3) the value of the physical injuries, less thing taken and serious or slight (4) whether or not physical injuries the offenders resulted) and carry arms; (4) the existence of intimidation only
EXCEPTION: When violence results in homicide, rape, intentional mutilation, or any of the serious physical injuries penalized in par. 1 and 2 of Art. 263, the taking of the personal property is robbery complexed with any of those crimes under Art. 294, even if the taking was already complete when violence was used by the offender.
ARTICLE 294 – ROBBERY WITH VIOLENCE AGAINST OR INTIMIDATION OF PERSONS Acts punished under Art 294: (1) When by reason or on occasion of the robbery, Homicide is committed. (Robbery with Homicide) (2) When the robbery is accompanied by Rape or Intentional Mutilation or Arson. (Robbery with Rape, Robbery with Intentional Mutilation, Robbery with Arson) (3) When by reason or on occasion of such robbery, any of the Physical Injuries resulting in insanity, imbecility, impotency, or blindness is inflicted. (4) When by reason or on occasion of robbery, any of the Physical Injuries resulting in the loss of the use of speech or the power to hear or to smell, or the loss of an eye, a hand, a foot, an arm or a leg or the loss of the use of any such member, or incapacity for the work in which the injured person is theretofore habitually engaged is inflicted. (5) If the violence or intimidation employed in the commission of the robbery is carried to a degree clearly unnecessary for the commission of the crime. (6) When in the course of its execution, the offender shall have inflicted upon any person not responsible for the commission of the robbery any of the Physical Injuries in consequence of which the person injured becomes deformed or loses any other member of his body or loses the use thereof or becomes ill or incapacitated for the performance of the work in which he is habitually engaged for labor for more than
VIOLENCE AGAINST OR USE OF FORCE INTIMIDATION OF UPON THINGS PERSON The taking robbery.
is
always The taking is robbery only if force is used to: (4) enter the building (5) break doors, wardrobes, chests, or any other kind of locked or sealed furniture or receptacle inside the building; OR (6) force them open outside after taking the same from the building (Art. 299 & 302)
Value of the thing taken is immaterial. The penalty depends on: (3) the result of the violence used (homicide, rape, intentional
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If committed in an inhabited house, public building, or edifice devoted to religious worship, the penalty is based on: 394
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90 days or the person injured becomes ill or incapacitated for labor for more than 30 days. (7) If the violence employed by the offender does not cause any of the serious physical injuries defined in Art. 263, or if the offender employs intimidation only.
BUT when robbery is under Art 294 par 4 & 5 the penalty is lower than in Art 299 so the complex crime should be imputed for the higher penalty to be imposed without sacrificing the principle that robbery w/ violence against persons is more severe than that w/ force upon things. [Napolis v. CA (1972)]
The crime defined in this article is a special complex crime.
When the taking of the victim’s gun was to prevent the victim from retaliating, then the crimes committed are theft and homicide not robbery with homicide. [People v. Millian (2000)]
“On the occasion” and “by reason” mean that homicide or serious physical injuries must be committed in the course or because of the robbery.
These offenses are known as SPECIAL COMPLEX CRIMES. Crimes defined under this article are the following: (1) Robbery with homicide (2) Robbery with rape (3) Robbery with intentional mutilation (4) Robbery with arson (5) Robbery with serious physical injuries
The violence must be against the person, not upon the thing taken. It must be present before the taking of personal property is complete. “Homicide” is used in its generic sense, as to include parricide and murder. Hence, there is no robbery with murder. The crime is still robbery with homicide even if, in the course of the robbery, the person killed was another robber or a bystander.
ROBBERY WITH HOMICIDE; (Absorption Theory applied) Attempted homicide or attempted murder committed during or on the occasion of the robbery, as in this case, is absorbed in the crime of Robbery with Homicide which is a special complex crime that remains fundamentally the same regardless of the number of homicides or injuries committed in connection with the robbery. [People v. Cabbab, Jr. (2007)]
Even if the rape was committed in another place, it is still robbery with rape. When the taking of personal property of a woman is an independent act following defendant’s failure to consummate the rape, there are two distinct crimes committed: attempted rape and theft. Additional rape committed on the same occasion of robbery will not increase the penalty.
ROBBERY WITH RAPE If the intention of the accused was to rob, but rape was committed even before the asportation, the crime is the special complex crime of Robbery with Rape. So long as the intent of the accused is to rob, rape may be committed before, during or after the robbery. But if the primary intent of the accused was to rape and his taking away the belongings of the victim was only a mere afterthought, two separate felonies are committed: Rape and
Absence of intent to gain will make the taking of personal property grave coercion if there is violence used (Art. 286). If both violence/intimidation of persons (294) and force upon things (299/302) co-exist, it will be considered as violation of Art 294 because it is more serious than in Art 299/302.
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Theft or Robbery depending upon the circumstances surrounding the unlawful taking. [People v. Naag, GR No. 1361394, Feb. 15, 2001]
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penalty upon all the malefactors shall be the maximum of the corresponding penalty provided by law, without prejudice to the criminal liability for illegal possession of such firearms. (3) Any member of a band who was present at the commission of a robbery by the band, shall be punished as principal of any of the assaults committed by the band, unless it be shown that he attempted to prevent the crime.
ARTICLE 295 - ROBBERY WITH PHYSICAL INJURIES, IN AN UNINHABITED PLACE AND BY A BAND Robbery with violence against or intimidation of persons is qualified when it is committed: (1) In an Uninhabited place, or (2) By a Band, or (3) By Attacking a moving train, street car, motor vehicle, or airship, or (4) By Entering the passengers’ compartments in a train, or in any manner taking the passengers thereof by surprise in the respective conveyances, or (5) On a Street, road, highway, or alley, AND the intimidation is made with the use of Firearms
Requisites for Liability for the acts of the other members: (1) Member of the band. (2) Present at the commission of the robbery. (3) Other members committed an assault. (4) He did not attempt to prevent assault. Conspiracy is presumed when robbery is by band.
Here, the offender shall be punished by the maximum periods of the proper penalties in Art. 294. The penalty cannot be offset by a generic mitigating circumstance.
When the robbery was not committed by a band, the robber who did not take part in the assault by another is not liable for that assault. When the robbery was not by a band and homicide was not determined by the accused when they plotted the crime, the one who did not participate in the killing is liable for robbery only. It is only when the robbery is in band that all those present in the commission of the robbery may be punished for any of the assaults which any of its members might commit.
The intimidation with the use of firearm qualifies only robbery on a street, road, highway, or alley. Any of these qualifying circumstances must be alleged in the information and proved during the trial.
ARTICLE 296 – ROBBERY BY A BAND
But when there is conspiracy to commit homicide and robbery, all the conspirators, even if less than 4 armed men, are liable for the special complex crime of robbery with homicide.
Outline of Art. 296 (Definition of a Band and Penalty Incurred by the Members Thereof): (1) When at least 4 armed malefactors take part in the commission of a robbery, it is deemed committed by a band. (2) When any of the arms used in the commission of robbery is not licensed,
Art 296 is not applicable to principal by inducement, who was not present at the commission of the robbery, if the agreement was only to commit robbery. 396
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The article speaks of more than 3 armed malefactors who “takes part in the commission of the robbery” and member of a band “who is present at the commission of a robbery by a band.” Thus, a principal by inducement, who did not go with the band at the place of the commission of the robbery, is not liable for robbery with homicide, but only for robbery in band, there being no evidence that he gave instructions to kill the victim or intended that this should be done.
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Special aggravating circumstance of unlicensed firearm is inapplicable to robbery w/ homicide, or robbery with rape, or robbery with physical injuries, committed by a band. [People v. Apduhan]
ARTICLE 297 - ATTEMPTED AND FRUSTRATED ROBBERY WITH HOMICIDE Elements: (a) There is attempted or frustrated robbery (b) A homicide is committed on the same occasion
When there was conspiracy for robbery only but homicide was also committed on the occasion thereof, all members of the band are liable for robbery with homicide.
“Homicide” includes multiple homicides, murder, parricide, or even infanticide. The penalty is the same, whether robbery is attempted or frustrated.
Whenever homicide is committed as a consequence of or on the occasion of a robbery, all those who took part in the commission of the robbery are also guilty as principals in the crime of homicide unless it appears that they endeavored to prevent the homicide.
Robbery with homicide and attempted or frustrated robbery with homicide are special complex crimes, not governed by Art. 48, but by the special provisions of Arts. 294 & 297, respectively.
Proof of conspiracy is not essential to hold a member of the band liable for robbery with homicide actually committed by the other members of the band.
There is only one crime of attempted robbery with homicide even if slight physical injuries were inflicted on other persons on the occasion or by reason of the robbery.
There is no crime as “robbery with homicide in band”. Band is only ordinary aggravating circumstance in robbery w/ homicide
ARTICLE 298 - EXECUTION OF DEEDS THROUGH VIOLENCE OR INTIMIDATION
In order for special aggravating circumstance of unlicensed firearm to be appreciated, it is condition sine qua non that offense charged be robbery by a band under Art 295.
Elements: (a) Offender has Intent to defraud another (b) Offender Compels him to sign, execute, or deliver any public instrument or document (c) Compulsion is by means of violence or intimidation.
Pursuant to Art 295, circumstance of a band is qualifying only in robbery under par 3, 4 & 5 of Art 294. Hence, Art. 295 does not apply to robbery with homicide, or robbery with rape, or robbery with serious physical injuries under par. 1 of Art. 263.
If the violence resulted in the death of the person to be defrauded, crime is robbery with
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homicide and shall be penalized under Art 294 par. 1.
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(4) By using any Fictitious name or pretending the exercise of public authority. (c) That once inside the building, the offender took personal property belonging to another with intent to gain.
Art. 298 applies to private or commercial document, but it does not apply if document is void. When the offended party is under obligation to sign, execute or deliver the document under the law, it is not robbery but coercion.
There must be evidence that accused entered the dwelling house or building by any of the means enumerated in subdivision (a). In entering the building, there must be the intent to take personal property.
By Force Upon Things (1) Robbery by the use of force upon things is committed only when either: (2) Offender entered a house or building by any of the means specified in Art. 299 or Art. 302, or (3) Even if there was no entrance by any of those means, he broke a wardrobe, chest, or any other kind of locked or closed or sealed furniture or receptacle in the house or building, or he took it away to be broken or forced open outside.
“Inhabited house” – any shelter, ship, or vessel constituting the dwelling of one or more persons even though the inhabitants thereof are temporarily absent when the robbery is committed. “Public building” – every building owned by the Government or belonging to a private person but used or rented by the Government, although temporarily unoccupied by the same. Any of the four means described in subdivision (a) must be resorted to enter a house or building, not to get out otherwise it is only theft. The whole body of the culprit must be inside the building to constitute entering.
ARTICLE 299 - ROBBERY IN AN INHABITED HOUSE OR PUBLIC BUILDING OR EDIFICE DEVOTED TO WORSHIP Elements of robbery with force upon things under SUBDIVISION (A): (a) Offender entered (1) An inhabited house (2) Public building (3) Edifice devoted to religious worship (b) Entrance was effected by any of the following means: (1) Through an opening not intended for entrance or egress; (2) By breaking any wall, roof, or floor, or door or window; (3) By using False keys, picklocks or similar tools; or
Illustration: If the culprit had entered the house through an open door, and the owner, not knowing that the culprit was inside, closed and locked the door from the outside and left, and the culprit, after taking personal property in the house, went out through the window, it is only theft, not robbery. “Breaking” – means entering the building. The force used must be actual, as distinguished constructive force. “False keys” – genuine keys stolen from the owner or any keys other than those intended for use in the lock forcibly opened by the offender. 398
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The genuine key must be stolen, not taken by force or with intimidation, from the owner.
extended to all those who participated in the robbery, including those without arms.
If false key is used to open wardrobe or locked receptacle or drawer or inside door it is only theft.
The provision punishes more severely the robbery in a house used as a dwelling than that committed in an uninhabited place, because of the possibility that the inhabitants in the former might suffer bodily harm during the robbery.
Elements of robbery with force upon things under SUBDIVISION (B) of Art. 299: (a) Offender is inside a dwelling house, public building, or edifice devoted to religious worship, regardless of the circumstances under which he entered it. (b) Offender takes personal property belonging to another, with intent to gain, under any of the following circumstances: (1) Breaking of doors, wardrobes, chests, or any other kind of locked or sealed furniture or receptacle; or (2) Taking such furniture or objects away to be broken or forced open outside the place of the robbery.
ARTICLE 301 - WHAT IS AN INHABITED HOUSE, PUBLIC BUILDING DEDICATED TO RELIGIOUS WORSHIP AND THEIR DEPENDENCIES: “Inhabited house” – any shelter, ship, or vessel constituting the dwelling of one or more persons even though the inhabitants thereof are temporarily absent when the robbery is committed. Even if the occupant was absent during the robbery, the place is still inhabited if the place was ordinarily inhabited and intended as a dwelling.
Entrance into the building by any of the means mentioned in subdivision (a) is not required in robbery under subdivision (b)
“Public building” – every building owned by the Government or belonging to a private person but used or rented by the Government, although temporarily unoccupied by the same.
The term “door” in par. 1, subdivision (b) of Art. 299, refers only to “doors, lids or opening sheets” of furniture or other portable receptacles—not to inside doors of house or building. Breaking the keyhole of the door of a wardrobe, which is locked, is breaking a locked furniture.
“Dependencies” – all interior courts, corrals, warehouses, granaries or inclosed places contiguous to the building or edifice, having an interior entrance connected therewith, and which form part of the whole (Art. 301, par. 2).
It is theft if the locked or sealed receptacle is not forced open in the building where it is kept or taken from to be broken outside.
Requisites: (1) Contiguous to the building; (2) Interior entrance connected therewith; (3) Form part of the whole.
The penalty depends on the value of property taken and on whether or not offender carries arm. Arms carried must not be used to intimidate. Liability for carrying arms is
Orchards and lands used for cultivation or production are not included in the term “dependencies” (Art. 301, par. 3).
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ARTICLE 300 – ROBBERY IN AN UNINHABITED PLACE AND BY A BAND
(5) A closed or sealed receptacle was removed, even if the same be broken open elsewhere. (6) With intent to gain, the offender took therefrom personal property belonging to another.
Robbery in an inhabited house, public building or edifice dedicated to religious worship is qualified when committed by a band and located in an uninhabited place.
“Building” – includes any kind of structure used for storage or safekeeping of personal property, such as (a) freight car and (b) warehouse.
See discussion on Art. 296 for definition of “band.” To qualify Robbery w/ force upon things (Art 299)
To qualify Robbery w/ violence against or intimidation of persons
It must be committed in uninhabited place and by a band (Art 300)
It must be committed in an uninhabited place or by a band (Art. 295)
ARTICLE 302 UNINHABITED BUILDING
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Entrance through an opening not intended for entrance or egress is not necessary, if there is breaking of wardrobe, chest, or sealed or closed furniture or receptacle, or removal thereof to be broken open elsewhere. Breaking padlock is use of force upon things. Use of fictitious name or pretending the exercise of public authority is not covered under this article.
– ROBBERY IN AN PLACE OR PRIVATE
A receptacle is a container, which must be “closed” or “sealed”.
Elements: (a) Offender entered an uninhabited place or a building which was not a dwelling house, not a public building, or not an edifice devoted to religious worship. (b) That any of the following circumstances was present: (1) Entrance was effected through an opening not intended for entrance or egress; (2) A wall, roof, floor, or outside door or window was broken (3) Entrance was effected through the use of false keys, picklocks or other similar tools; (4) A door, wardrobe, chest, or any sealed or closed furniture or receptacle was broken; or
Penalty is based only on value of property taken.
ARTICLE 303 - ROBBERY OF CEREALS, FRUITS OR FIREWOOD IN AN UNINHABITED PLACE OR PRIVATE BUILDING In cases enumerated in Arts. 299 and 302, the penalty is one degree lower when robbery consists in the taking of cereals, fruits, or firewood. Cereals – seedlings which are the immediate product of the soil. The palay must be kept by the owner as “seedling” or taken for that purpose by the robbers.
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ARTICLE 304 - POSSESSION PICKLOCK OR SIMILAR TOOLS
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Presumption of law as to brigandage: All are presumed highway robbers or brigands, if any of them carries unlicensed firearm. The arms carried may be any deadly weapon.
Elements: (a) Offender has in his possession picklocks or similar tools; (b) Such picklock or similar tools are especially adopted to the commission of robbery; (c) Offender does not have lawful cause for such possession.
The main object of the law is to prevent the formation of band of robbers. The term “highway” includes city streets. The following must be proved: (1) Organization of more than 3 armed persons forming a band of robbers (2) Purpose of the band is any of those enumerated in Art. 306. (3) That they went upon the highway or roamed upon the country for that purpose. (4) That the accused is a member of such band.
Possession of such tools, without lawful cause, is punished. Actual use is not necessary. Since picking of locks is one way to gain entrance to commit robbery, a picklock is per se specially adapted to the commission of robbery. [People v Lopez, 1965] If the person who makes such tools is a locksmith, the penalty is higher.
BRIGANDAGE
ARTICLE 305 - FALSE KEYS Deemed to include the following: (1) Tools mentioned in Article 304; (2) Genuine keys stolen from the owner; (3) Any key other than those intended by the owner for use in the lock forcibly opened by the offender.
CHAPTER 2: BRIGANDAGE ARTICLE 306 - WHO ARE BRIGANDS Elements of Brigandage: (a) There be at least 4 armed persons (b) They formed a band of robbers (c) The purpose is any of the following: (1) To commit robbery in the highway; or (2) To kidnap for the purpose of extortion or to obtain ransom; or (3) To attain by means of force and violence any other purpose.
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Purpose (1) Commit robbery in a highway (2) Kidnap to extort or get ransom (3) Any other purpose to be achieved by means of force or violence
Commit robbery, and not necessarily in a highway
Proof
It is necessary to prove that the band actually committed the robbery. Conspiracy to commit robbery is not punishable.
Mere formation of a band for any of the above purposes is sufficient. There is no requirement that the brigands consummate the crime.
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ARTICLE 307 - AIDING AND ABETTING A BAND OF BRIGANDS
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(2) Those who, having found lost property, fail to deliver the same to the local authorities or to its owner. (3) Those who, after having maliciously damaged the property of another, remove or make use of the fruits or object of the damage caused by them. (4) Those who enter an inclosed estate or field where trespass is forbidden or which belongs to another and, without the consent of its owner, hunt or fish upon the same or gather fruits, cereals, or other forest or farm products.
Elements: (a) There is a band of brigands (b) Offender knows the band to be of brigands (c) Offender does any of the following acts: (1) He in any manner aids, abets or protects such band of brigands; or (2) He gives them information of the movements of the police or other peace officers; or (3) He acquires or receives the property taken by such brigands.
The theft is consummated & taking completed once the culprit is able to place the thing taken under his control, and in such a situation that he could dispose of it at once.
It is presumed that the person performing any of the acts provided in this article has performed them knowingly, unless the contrary is proven.
In accordance with the definition in Art 308, there is no frustrated theft. The offender has either complete control of the property (consummated) or without (attempted). Intent to gain is presumed from the unlawful taking of personal property belonging to another. [Valenzuela v. People (2007)]
Any person who aids or protects highway robbers or abets the commission of highway robbery or brigandage shall be considered as an accomplice.
CHAPTER 3 THEFT
If a person takes property of another, believing it to be his own, presumption of intent to gain is rebutted. Hence, he is not guilty of theft.
ARTICLE 308 - WHO ARE LIABLE FOR THEFT Elements: (a) Taking of personal property (b) Personal property belongs to another (c) Taking was done with intent to gain. (d) Taking was wiithout the consent of the owner. (e) Accomplished without the use of violence against or intimidation of persons or force upon things.
If one takes personal property openly and avowedly under claim of title made in good faith, he is not guilty of theft even though claim of ownership is later found to be untenable. If possession was only material or physical, the crime is THEFT. If possession was juridical, crime is ESTAFA.
Persons liable: (1) Those who, with intent to gain, without violence against or intimidation of persons nor force upon things, take personal property, of another without the latter’s consent.
Selling share of a partner or co-owner is not theft. Actual or real gain is not necessary in theft.
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The consent contemplated in this article refers to consent freely given, and not mere lack of opposition by owner of the property taken.
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Elements of hunting, fishing or gathering fruits, etc., in enclosed estate: (1) That there is an enclosed estate or a field, where trespass is forbidden or which belongs to another (2) Offender enters the same (3) Offender hunts or fishes upon the same or gathers fruits, cereals or other forest or farm products in the estate or field; and (4) That the hunting or fishing or gathering of products is without the consent of the owner.
It is not robbery when violence is for a reason entirely foreign to the fact of taking. Gulinao shot Dr. Chua and left. Then he went back & took Dr. Chua’s diamond ring. The crime was Theft and not robbery. Circumstances show that the taking was merely an afterthought. Violence used in killing Dr. Chua had no bearing on the taking of the ring. [People v. Gulinao, (1989)]
Corpus Delicti To be caught in possession of the stolen property is not an element of the corpus delicti in theft. Corpus delicti means the “body or substance of the crime, and, in its primary sense, refers to the fact that the crime has been actually committed.”
Properties were taken after accused has already carried out his primary criminal intent of killing the victim. Considering that the victim was already heavily wounded when his properties were taken, there was no need to employ violence against or intimidation upon his person. Hence, accused can only be held guilty of the separate offense of theft. [People v. Basao (1999)]
In theft, corpus delicti has two elements, namely: (1) that the property was lost by the owner, and (2) that it was lost by felonious taking. [Gan vs. People (2007)]
One in possession of part of recently stolen property is presumed to be thief of all.
ARTICLE 309 – PENALTIES
“Lost property” – embraces loss by stealing or by act of the owner or by a person other than the owner, or through some casual occurrence.
The basis of the penalty in theft is (1) the value of the thing stolen, or (2) the value and nature of the property taken, or (3) the circumstances that impelled the culprit to commit the crime.
It is necessary to prove the following in order to establish theft by failure to deliver or return lost property: (1) Time of the seizure of the thing (2) It was a lost property belonging to another; and (3) That the accused having had the opportunity to return or deliver the lost property to its owner or to the local authorities, refrained from doing so.
If there is no evidence of the value of the property stolen, the court should impose the minimum penalty corresponding to theft involving the value of P5.00. The court may also take judicial notice of its value in the proper cases.
The law does not require knowledge of the owner of the property. 403
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ARTICLE 310 - QUALIFIED THEFT
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If a private individual took a letter containing postal money order, it is qualified theft. If it was the postmaster, to whom the letter was delivered, the crime would be infidelity in the custody of documents.
Theft is qualified if: (1) Committed by a domestic servant (2) Committed with grave abuse of confidence (3) The property stolen is (d) motor vehicle (e) mail matter, or (f) large cattle (4) The property stolen consists of coconuts taken from the premises of a plantation (5) The property stolen is fish taken from a fishpond or fishery (6) The property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance.
Regarding the theft of coconuts and fish, what matters is not the execution, but the location where it is taken. It should be in the plantation or in the fishpond.
PD 1612: ANTI-FENCING LAW Fencing – The act ny person who, with intent to gain for himself or for another, shall buy, receive, keep, acquire, conceal, sell, or dispose of, or shall buy and sell or in any other manner deal in any article, item, object, or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft.
The penalty for qualified theft is 2 degrees higher. Theft by domestic servant is always qualified. There is no need to prove grave abuse of confidence.
Elements: (a) Robbery or theft has been committed. (b) The accused, who is not a principal or accomplice in the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object, or anything of value, which has been derived from the proceeds of the said crime. (c) The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft. (d) There is, on the part of the accused, intent to gain for himself or another.
The abuse of confidence must be grave. There must be allegation in the information and proof of a relation, by reason of dependence, guardianship or vigilance, between the accused and the offended party that has created a high degree of confidence between them, which the accused abused. Theft of any material, spare part, product or article by employees and laborers is heavily punished under PD 133. “Motor vehicle” - all vehicles propelled by power, other than muscular power. Theft of motor vehicle may now fall under the Anti-Carnapping law.
Mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima
When the purpose of taking the car is to destroy it by burning it, the crime is arson.
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facie evidence of fencing. [People v. DizonPamintuan]
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thereof in knock down condition shall register with the Land Transportation Commission the motor vehicle engine, engine block and chassis in his name or in the name of the real owner who shall be readily available to answer any claim over the registered motor vehicle engine, engine block or chassis. Thereafter, all motor vehicle engines, engine blocks and chassis not registered with the Land Transportation Commission shall be considered as untaxed importation or coming from an illegal source or carnapped, and shall be confiscated in favor of the Government.
Robbery/theft and fencing are separate and distinct offenses. "Fence" – includes any person, firm, association, corporation or partnership or other organization who/which commits the act of fencing. Presumption of Fencing Mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing.
All owners of motor vehicles in all cities and municipalities are required to register their cars with the local police without paying any charges.
Exception With Clearance or Permit to Sell Section 6. Clearance/Permit to Sell/Used Second Hand Articles. For purposes of this Act, all stores, establishments or entities dealing in the buy and sell of any good, article, item, object or anything of value obtained from an unlicensed dealer or supplier thereof, shall before offering the same for sale to the public, secure the necessary clearance or permit from the station commander of the Integrated National Police in the town or city where such store, establishment or entity is located. The Chief of Constabulary/Director General, Integrated National Police shall promulgate such rules and regulations to carry out the provisions of this section. Any person who fails to secure the clearance or permit required by this section or who violates any of the provisions of the rules and regulations promulgated thereunder shall upon conviction be punished as a fence.
Section 5. Registration of sale, transfer, conveyance, substitution or replacement of a motor vehicle engine, engine block or chassis. Every sale, transfer, conveyance, substitution or replacement of a motor vehicle engine, engine block or chassis of a motor vehicle shall be registered with the Land Transportation Commission. Motor vehicles assembled and rebuilt or repaired by replacement with motor vehicle engines, engine blocks and chassis not registered with the Land Transportation Commission shall not be issued certificates of registration and shall be considered as untaxed imported motor vehicles or motor vehicles carnapped or proceeding from illegal sources. Section 6. Original Registration of motor vehicles. Any person seeking the original registration of a motor vehicle, whether that motor vehicle is newly assembled or rebuilt or acquired from a registered owner, shall within one week after the completion of the assembly or rebuilding job or the acquisition thereof from the registered owner, apply to the Philippine Constabulary for clearance of the motor vehicle for registration with the Land Transportation Commission. The Philippine Constabulary shall,
RA 6539: ANTI-CARNAPPING ACT Registration Section 3. Registration of motor vehicle engine, engine block and chassis. Within one year after the approval of this Act, every owner or possessor of unregistered motor vehicle or parts 405
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upon receipt of the application, verify if the motor vehicle or its numbered parts are in the list of carnapped motor vehicles or stolen motor vehicle parts. If the motor vehicle or any of its numbered parts is not in that list, the Philippine Constabulary shall forthwith issue a certificate of clearance. Upon presentation of the certificate of clearance from the Philippine Constabulary and after verification of the registration of the motor vehicle engine, engine block and chassis in the permanent registry of motor vehicle engines, engine blocks and chassis, the Land Transportation Commission shall register the motor vehicle in accordance with existing laws, rules and regulations.
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chassis or body, shall keep a permanent record of his stocks, stating therein their type, make and serial numbers, and the names and addresses of the persons from whom they were acquired and the names and addresses of the persons to whom they were sold, and shall render an accurate monthly report of his transactions in motor vehicles to the Land Transportation Commission. Clearance and Permit Section 10. Clearance and permit required for assembly or rebuilding of motor vehicles. Any person who shall undertake to assemble or rebuild or cause the assembly or rebuilding of a motor vehicle shall first secure a certificate of clearance from the Philippine Constabulary: Provided, That no such permit shall be issued unless the applicant shall present a statement under oath containing the type, make and serial numbers of the engine, chassis and body, if any, and the complete list of the spare parts of the motor vehicle to be assembled or rebuilt together with the names and addresses of the sources thereof.
Who are Liable Duty of Collector of Customs Section 7. Duty of Collector of Customs to report arrival of imported motor vehicle, etc. The Collector of Customs of a principal port of entry where an imported motor vehicle, motor vehicle engine, engine block chassis or body is unloaded, shall, within seven days after the arrival of the imported motor vehicle or any of its parts enumerated herein, make a report of the shipment to the Land Transportation Commission, specifying the make, type and serial numbers, if any, of the motor vehicle engine, engine block and chassis or body, and stating the names and addresses of the owner or consignee thereof. If the motor vehicle engine, engine block, chassis or body does not bear any serial number, the Collector of Customs concerned shall hold the motor vehicle engine, engine block, chassis or body until it is numbered by the Land Transportation Commission.
In the case of motor vehicle engines to be mounted on motor boats, motor bancas and other light water vessels, the applicant shall secure a permit from the Philippine Coast Guard, which office shall in turn furnish the Land Transportation Commission the pertinent data concerning the motor vehicle engines including their type, make and serial numbers. Definition of terms/Punishable Acts Carnapping – is the taking, with intent to gain, of a motor vehicle belonging to another without the latter's consent, or by means of violence against or intimidation of persons, or by using force upon things.
Duty of Importers Distributors and Sellers Section 8. Duty of importers, distributors and sellers of motor vehicles to keep record of stocks. Any person engaged in the importation, distribution, and buying and selling of motor vehicles, motor vehicle engines, engine blocks,
Motor vehicle –is any vehicle propelled by any power other than muscular power using the public highways, but excepting road rollers, trolley cars, street-sweepers, sprinklers, lawn 406
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mowers, bulldozers, graders, fork-lifts, amphibian trucks, and cranes if not used on public highways, vehicles, which run only on rails or tracks, and tractors, trailers and traction engines of all kinds used exclusively for agricultural purposes. Trailers having any number of wheels, when propelled or intended to be propelled by attachment to a motor vehicle, shall be classified as separate motor vehicle with no power rating.
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Any government official or employee who directly commits the unlawful acts defined in this Act or is guilty of gross negligence of duty or connives with or permits the commission of any of the said unlawful act shall, in addition to the penalty prescribed in the preceding paragraph, be dismissed from the service with prejudice to his reinstatement and with disqualification from voting or being voted for in any election and from appointment to any public office.
Defacing or tampering with a serial number – is the erasing, scratching, altering or changing of the original factory-inscribed serial number on the motor vehicle engine, engine block or chassis of any motor vehicle. Whenever any motor vehicle is found to have a serial number on its motor engine, engine block or chassis which is different from that which is listed in the records of the Bureau of Customs for motor vehicles imported into the Philippines, that motor vehicle shall be considered to have a defaced or tampered with serial number.
Section 14. Penalty for Carnapping. Any person who is found guilty of carnapping, as this term is defined in Section two of this Act, shall, irrespective of the value of motor vehicle taken, be punished by imprisonment for not less than fourteen years and eight months and not more than seventeen years and four months, when the carnapping is committed without violence or intimidation of persons, or force upon things; and by imprisonment for not less than seventeen years and four months and not more than thirty years, when the carnapping is committed by means of violence against or intimidation of any person, or force upon things; and the penalty of life imprisonment to death shall be imposed when the owner, driver or occupant of the carnapped motor vehicle is killed in the commission of the carnapping.
Section 12. Defacing or tampering with serial numbers of motor vehicle engines, engine blocks and chassis. It shall be unlawful for any person to deface or otherwise tamper with the original or registered serial number of motor vehicle engines, engine blocks and chassis.
ARTICLE 311 - THEFT OF THE PROPERTY OF THE NATIONAL LIBRARY AND NATIONAL MUSEUM
Section 13. Penal Provisions. Any person who violates any provisions of this Act shall be punished with imprisonment for not less than two years nor more than six years and a fine equal in amount to the acquisition cost of the motor vehicle, motor vehicle engine or any other part involved in the violation: Provided, That if the person violating any provision of this Act is a juridical person, the penalty herein provided shall be imposed on its president or secretary and/or members of the board of directors or any of its officers and employees who may have directly participated in the violation.
Theft of property of the National Museum and National Library has a fixed penalty (arresto mayor of fine of P200-500 or both) regardless of the property's value. But if it was with grave abuse of confidence, the penalty for qualified theft shall be imposed.
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CHAPTER 4: USURPATION
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Act
ARTICLE 312 - OCCUPATION OF REAL PROPERTY OR USURPATION OF REAL RIGHTS IN PROPERTY
Occupation Usurpation
Theft or Robbery or Taking asportation
or
What is Real property or Personal Taken Real Right property
Acts punishable under Art. 312: (1) Taking possession of any real property belonging to another by means of violence against or intimidation of persons (2) Usurping any real rights in property belonging to another by means of violence against or intimidation of persons.
Intent
To Gain
To Gain
ARTICLE 313 - ALTERING BOUNDARIES OR LANDMARKS Elements: (a) There are boundary marks or monuments of towns, provinces, or estates, or any other marks intended to designate the boundaries of the same. (b) The offender alters said boundary marks.
Elements: (a) Offender takes possession of any real property OR usurps any real rights in property (b) Real property or real rights belong to another (c) Violence against or intimidation of persons is used by the offender in occupying real property or usurping real rights in property. (d) There is intent to gain.
Provision does not require intent to gain. The word “alter” may include: (1) destruction of stone monument (2) taking it to another place (3) removing a fence
If no violence or intimidation only civil liability exists. Violence or intimidation must be the means used in occupying real property or in usurping real rights.
CHAPTER 5: CULPABLE INSOLVENCY ART. 314 - FRAUDULENT INSOLVENCY Elements: (a) The offender is a debtor, and he has obligations due and payable (b) He absconds with his property (c) There is prejudice to his creditors
Art. 312 does not apply when the violence or intimidation took place subsequent to the entry into the property. Art. 312 does not apply to a case of open defiance of the writ of execution issued in the forcible entry case. Criminal action for usurpation of real property is not a bar to civil action for forcible entry.
Actual prejudice, not intention alone, is required. Even if the debtor disposes of his property, unless it is shown that it has actually prejudiced his creditor, conviction will not lie.
RA 947 punishes entering or occupying public agricultural land including lands granted to private individuals.
Fraudulent concealment of property is not sufficient if the debtor has some property with which to satisfy his obligation.
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“Abscond” – does not require that the debtor should depart and physically conceal his property. Real property could be the subject matter of Art. 314.
Damage or prejudice must be capable of estimation, because it is the basis of the penalty. Delivery of anything of value must be “by virtue of an onerous obligation to do so”.
The person prejudiced must be creditor of the offender. Art 314
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It is not estafa if the thing delivered is not acceptable to the complainant when there is no agreement as to its quality.
Insolvency law
No need insolvency proceedings.
for Crime should be committed after the institution of insolvency proceedings No need to be adjudged bankrupt or insolvent
Estafa may arise even if thing delivered is not subject of lawful commerce, such as opium. Par.1(b): Misappropriation and Conversion Elements of estafa with abuse of confidence (a) Money, goods, or other personal property is received by the offender in trust, or in commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return, the same; (b) There is misappropriation or conversion of such money or property by the offender, or denial on his part of such receipt; (c) Such misappropriation or conversion or denial is to the prejudice of another; and (d) There is a demand made by the offended party to the offender
CHAPTER 6: SWINDLING AND OTHER DECEITS ARTICLE 315 - ESTAFA Elements of Estafa in General: (a) The accused defrauded another (3) by abuse of confidence; or (4) by means of deceit; and (b) The damage or prejudice capable of pecuniary estimation is caused to the offended party or third person.
The 4th element is not necessary when there is evidence of misappropriation of goods by the defendant.
With Unfaithfulness or Abuse of Confidence (315 par. 1(a) (b) (c))
Check is included in the word “money”.
Par 1(a): Altering substance, quantity or quality of object subject of obligation to deliver Elements of estafa with unfaithfulness (a) Offender has an onerous obligation to deliver something of value. (b) He alters its substance, quantity, or quality (c) Damage or prejudice is caused to another
Money, goods or other personal property must be received by the offender under certain kinds of transaction transferring juridical possession to him. The offender acquires both physical possession and juridical possession when the thing is
Deceit is NOT an essential element of estafa with abuse of confidence. 409
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received by the offender from the offended party (1) in trust, or (2) on commission, or (3) for administration,
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No estafa when: (4) Transaction sale fails. There is no estafa if the accused refused to return the advance payment. (5) The money or personal property received by accused is not to be used for a particular purpose or to be returned. (6) Thing received under a contract of sale on credit
“Juridical possession” – means a possession which gives the transferee a right over the thing which he may invoke even as against the owner. When the delivery of a chattel does not transfer juridical possession/title, it is presumed that the possession/title of the thing remain w/ owner.
Payment by students to the school for the value of materials broken is not mere deposit. Novation of contract of agency to one of sale, or to one of loan, relieves defendant from incipient criminal liability under the first contract.
Failure to turn over to the bank the proceeds of sale of goods covered by trust receipts is estafa. The phrase “or under any obligation involving the duty to make delivery of, or to return the same”, includes quasi-contracts and certain contracts of bailment. The obligation to return the thing must be contractual but without transferring to accused ownership of the thing.
He exerted all efforts to retrieve dump truck, albeit belatedly and to no avail. His ineptitude should not be confused with criminal intent. Criminal intent is required for the conviction of estafa. Earnest effort to comply with obligation is a defense against estafa. [Manahan vs CA (1996)]
When ownership is transferred to recipient, his failure to return it results in civil liability only.
3 Ways of Committing Estafa With Abuse Of Confidence Under Art. 315 Par. (B): (1) Misappropriating the thing received. (2) Converting the thing received. (3) Denying that the thing was received.
Applicable Civil Code provisions: (1) Art. 1477. The ownership of the thing sold shall be transferred to the vendee upon actual or constructive delivery thereof. (2) Art. 1482. Whenever earnest money is given in a contract of sale, it shall be considered as part of the price and as proof of the perfection of the contract.
“Misappropriating” – means to own, to take something for one's own benefit. “Converting” – Using or disposing of another’s property as if it were one’s own.
In estafa with abuse of confidence under par. (b), subdivision 1 of Art. 315, the thing received must be returned if there is an obligation to return it.
“Conversion” – presupposes that the thing has been devoted to a purpose or use different from that agreed upon.
If no obligation to return there is only civil liability.
The fact that an agent sold the thing received on commission for a lower price than the one fixed, does not constitute estafa (US v Torres).
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The law does not distinguish between temporary and permanent misappropriations.
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But when the money or property had been received by a partner for specific purpose and he misappropriated it, there is estafa.
No estafa under Art. 315 par (b) when there is neither misappropriation nor conversion.
Under the 4th element of estafa with abuse of confidence demand may be required.
Right of agent to deduct commission from amounts (1) If agent is authorized to retain his commission out of the amounts he collected, there is no estafa. (2) Otherwise he is guilty of estafa, because his right to commission does not make the agent a co-owner of money 3rd element of estafa with abuse of confidence is that the conversion, or denial by offender resulted in the prejudice of the offended party.
In estafa by means of deceit, demand is not needed, because the offender obtains the thing wrongfully from the start. In estafa with abuse of confidence, the offender receives the thing under a lawful transaction.
“To the prejudice of another” – not necessarily of the owner of the property.
Demand is not required by law, but it may be necessary, because failure to account upon demand is circumstantial evidence of misappropriation. Presumption arises only when the explanation of the accused is absolutely devoid of merit.
General rule: Partners are not liable for estafa of money or property received for the partnership when the business commenced and profits accrued. Failure of partner to account for partnership funds may give rise to civil obligation only, not estafa.
The mere failure to return the thing received for safekeeping or under any other obligation w/ the duty to return the same or deliver the value thereof to the owner could only give rise to a civil action and does not constitute the crime of estafa.
Exception: When a partner misappropriates the share of another partner in the profits, the act constitutes estafa.
There is no estafa through negligence. The gravity of the crime of estafa is based on the amount not returned before the institution of the criminal action.
A co-owner is not liable for estafa, but he is liable if, after the termination of the coownership, he misappropriates the thing which has become the exclusive property of the other.
Test to distinguish theft from estafa: In theft, upon the delivery of the thing to the offender, the owner expects a return of the thing to him.
Estafa with abuse of Theft confidence With juridical Only with physical / possession of thing material possession of misappropriated thing misappropriated
General rule: When the owner does not expect the immediate return of the thing he delivered to the accused, the misappropriation of the same is estafa.
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Exception: When the offender received the thing from the offended party, with the obligation to deliver it to a third person and, instead of doing so, misappropriated it to the prejudice of the owner, the crime committed is qualified theft.
(1) ESTAFA: if it is not involved in the commission of a crime (2) MALVERSATION: if it is involved in the commission of a crime.
Sale of thing received to be pledged for owner is theft, when the intent to appropriate existed at the time it was received.
Par.1(c): Taking advantage of signature in blank Elements: (a) Paper with the signature of the offended party is in blank. (b) Offended party delivered it to the offender. (c) Above the signature of the offended party a document is written by the offender without authority to do so. (d) The document so written creates a liability of, or causes damage to, the offended party or any third person.
Estafa with abuse of Malversation confidence Entrusted with funds or property Both are continuing offenses Funds or property are Funds or property always private usually public
Estafa by Means of False Pretenses or Fraudulent Acts (315 par. 2(a) (b) (c) (d) (e); BP22):
Offender is a private Offender is a public individual or public officer accountable for officer not public funds or property accountable for public funds or property Committed by misappropriating, converting or denying having received money, other personal property
Elements of estafa by means of deceit: (a) There is a false pretense, fraudulent act or fraudulent means. (b) Such false pretense, fraudulent act or fraudulent means was made or executed prior to or simultaneously with the commission of the fraud. (c) Offended party relied on the false pretense, fraudulent act, or fraudulent means, that is, he was induced to part with his money or property because of such (d) As a result thereof, the offended party suffered damage.
Committed by misappropriating, or thru abandonment or negligence, letting other person to take the public funds or property
There is no estafa There can be through negligence. malversation through abandonment or negligence.
The acts must be fraudulent. Acts must be founded on deceit, trick, or cheat, and such must be made prior to or simultaneously with the commission of the fraud.
When in prosecution for malversation the public officer is acquitted, the private individual in conspiracy w/ him may be held liable for estafa, depending on the nature of the funds.
In false pretenses the deceit consists in the use of deceitful words, in fraudulent acts the deceit consists principally in deceitful acts. The fraudulent acts must be performed prior to or
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simultaneously with the commission of the fraud.
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Knowledge of criminal intent of the principal is essential to be convicted as an accomplice in estafa through falsification of commercial document. There must be knowing assistance in the execution of the offense. [Abejuela vs People (1991)]
Par 2(a): Using fictitious name or false pretenses at power, influence… or other similar deceits Ways of committing the offense: (1) By using fictitious name; (2) By falsely pretending to possess: (a) power, (b) influence, (c) qualifications, (d) property, (e) credit, (f) agency, (g) business or imaginary transactions; (4) By means of other similar deceits.
In a tenant-landowner relationship, it was incumbent upon the tenant to hold in trust and, eventually, account for the share in the harvest appertaining to the landowner, failing which the tenant could be held liable for misappropriation.
For estafa under Art. 315 par. 2(a), it is indispensable that the false statement or fraudulent representation of the accused, (1) be made prior to, or, at least simultaneously with, (2) the delivery of the thing by the complainant.
In [People v. Vanzuela (2008)], it was ruled that share tenancy has been outlawed for being contrary to public policy as early as 1963, with the passage of R.A. 3844. What prevails today, under R.A. 6657, is agricultural leasehold tenancy relationship, and all instances of share tenancy have been automatically converted into leasehold tenancy. In such a relationship, the tenant’s obligation is simply to pay rentals, not to deliver the landowner’s share. Given this dispensation, the petitioner’s allegation that the respondents misappropriated the landowner’s share of the harvest is untenable. Accordingly, the respondents cannot be held liable under Article 315, paragraph 4, No. 1(b) of the RPC.
It is essential that such false statement or fraudulent representation constitutes the cause or only motive which induced the complainant to part with the thing. If there be no such prior or simultaneous false statement or fraudulent representation, any subsequent act of the accused, however fraudulent and suspicious it may appear, cannot serve as a basis for prosecution for this class of estafa.
The offender must be able to obtain something from the offended party because of the fraudulent acts.
A creditor who deceived his debtor is liable for estafa. In estafa by means of deceit under Art. 315 2(a), there must be evidence that the pretense of the accused is false. Without such proof, criminal intent to deceive cannot be inferred. Fraud must be proved with clear and positive evidence.
It is well established in jurisprudence that a person may be convicted of both illegal recruitment and estafa. The reason, therefore, is not hard to discern: illegal recruitment is malum prohibitum, while estafa is malum in se. [Lapasaran v. People (2009)]
Estafa through false pretenses made in writing is only a simple crime of estafa, not a complex crime of estafa through falsification.
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Par 2(b): by altering the quality, fineness or weight of anything pertaining to art or business
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time he postdated or issued a check is sufficient to make him liable for estafa. RA 4885 deleted the phrase “the offender knowing at the time he had no funds in the bank”: (1) The failure of the drawer to deposit the amount needed to cover his check (2) Within 3 days from receipt of notice of dishonor of check for lack or insufficiency of funds (3) Shall be prima facie evidence of deceit constituting false pretense or fraudulent act.
Par. 2(c): by pretending to have bribed any government employee Manipulation of scale is punished under the Revised Administrative Code. Person would ask money from another for the alleged purpose of bribing a government employee but just pocketed the money. Par 2(d): By postdating a check or issuing a bouncing check
Good faith is a defense in a charge of estafa by postdating or issuing a check. One who got hold of a check issued by another, knowing that the drawer had no sufficient funds in the bank, and used the same in the purchase of goods, is guilty of estafa. [People v. Isleta]
Elements: (a) Offender postdated a check, or issued a check in payment of an obligation; (b) Such postdating or issuing a check was done when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check.
PD 818, which increases the penalty for estafa committed by means of bouncing checks, applies only to estafa under par 2(d) of Art. 315, and does not apply to other forms of estafa. [People v Villaraza, 81 SCRA 95] Hence, the penalty prescribed in PD 818, not the penalty provided for in Art. 315, should be imposed when the estafa committed is covered by par 2(d) of Art. 315.
The check must be genuine, and not falsified. The check must be postdated or for an obligation contracted at the time of the issuance and delivery of the check and not for pre-existing obligation.
Estafa by issuing a bad check is a continuing crime.
Exception: (1) When postdated checks are issued and intended by the parties only as promissory notes (2) When the check is issued by a guarantor
BP 22 (ANTI-BOUNCING CHECKS LAW) Punishable Acts (1) (a) A person makes or draws and issues any check to apply on account or for value; (b) He knows at the time of issuance that he does not have sufficient funds in or credit with the drawee
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bank for the payment of such check in full upon its presentment; and (c) (c)The check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment.
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B.P. Blg. 22 by deleting the penalty of imprisonment and imposing only the penalty of fine in an amount double the amount of the check. In justification thereof, the Court said: Petitioner are first-time offenders. In Lim vs. People of the Philippines, the Court deleted the penalty of imprisonment and sentenced the drawer of the bounced check to the maximum of the fine allowed by B.P. Blg. 22, i.e., P200,000, and concluded that “such would best serve the ends of criminal justice. (A.C. 122000 Re: Penalty for Violation of B.P. 22)
(2) (a) A person has sufficient funds in or credit with the drawee bank when he makes or draws and issues a check; (b) He fails to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon; (c) For which reason, the check is dishonored by the drawee bank. Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable.
In a subsequent Administrative Circular (Administrative Circular No. 13-2001 Re Clarification for Admin. Circular 12-2000), the Court clarified that: (1) A.C. 12-2000 does not remove imprisonment as an alternative penalty for violations of B.P. Blg. 22; (2) The Judges concerned may, in the exercise of sound discretion, and taking into consideration the peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve the interests of justice or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice; (3) Should only a fine be imposed and the accused be unable to pay the fine, there is no legal obstacle to the application of the Revised Penal Code provisions on subsidiary imprisonment.
Evidence of Knowledge of Insufficient Funds The making, drawing and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within (5) banking days after receiving notice that such check has not been paid by the drawee.
Double jeopardy does not apply because estafa in RPC is a distinct crime from BP 22. Deceit and damage are essential elements of RPC, which are not required in BP 22. [Nierras vs Dacuycuy (1990)]
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ESTAFA THROUGH OTHER FRAUDULENT MEANS (315 PAR 3 (A) (B) (C))
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If there is neither deceit nor abuse of confidence, it is not estafa, even if there is damage. There is only civil liability.
Par 3 (a): By inducing another, through deceit, to sign any document Elements: (a) Offender induced the offended party to sign a document. (b) Deceit was eployed to make offended party sign the document. (c) Offended party personally signed the document. (d) Prejudice was caused.
Deceit through Infidelity in Custody Fraudulent Means of Documents Offender is a private Offender is a public person OR a public person entrusted person not entrusted w/ with the documents documents There is intent to defraud Intent to defraud is not required
Offender must induce the offended party to sign the document. If offended party is willing from the start to sign the document, because the contents are different from those which the offended told the accused to state in the document, the crime is falsification.
The element of damage or prejudice capable of pecuniary estimation may consist in: (1) The offended party being deprived of his money or property, as result of the fraud; (2) Disturbance in property right; or (3) Temporary prejudice
There can be no conviction for estafa in the absence of proof that defendant made statements tending to mislead complainant.
Payment subsequent to the commission of estafa does not extinguish criminal liability or reduce the penalty. The crime of estafa is not obliterated by acceptance of promissory note.
Par.3 (b): By resorting to some fraudulent practice to ensure success in a gambling game
A private person who procures a loan by means of deceit through a falsified public document of mortgage, but paid loan within the period agreed upon, is not guilty of estafa but only falsification of a public document.
Par.3 (c): By removing, concealing or destroying any court record, office files, document or any other papers Elements: (a) There are court record, office files, documents or any other papers. (b) The offender removed, concealed or destroyed any of them. (c) The offender had Intent to defraud another.
Accused cannot be convicted of estafa with abuse of confidence if charged w/ estafa by means of deceit
If there is no malicious intent to defraud, the destruction of court record is malicious mischief. Elements of deceit and abuse of confidence may co-exist. 416
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ARTICLE 316 - OTHER SWINDLING AND DECEITS
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FORMS
OF
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Act constituting the offense is disposing of the real property representing that it is free from encumbrance.
Par 1. By conveying, selling, encumbering, or mortgaging any real property, pretending to be the owner of the same Elements: (a) The thing is immovable, such as a parcel of land or a building. (b) Offender who is not the owner of said property represents that he is the owner thereof. (c) Offender executed an act of ownership (selling, encumbering or mortgaging the real property). (d) The act was made to the prejudice of the owner or a third person.
“Dispose” – mortgaging.
includes
encumbering
or
“Encumbrance” – includes every right or interest in the land which exists in favor of third persons. The offended party would not have granted the loan had he known that the property was already encumbered. When the loan had already been granted when defendant offered the property as security for the loan, Art. 316 par. 2 is not applicable. Usurious loan with equitable mortgage is not an encumbrance on the property.
The thing disposed of must be real property. If it is chattel, crime is Estafa.
If 3rd element not established, there is no crime. There must be existing real property. There must be damage caused. It is not necessary that act prejudice the owner of the land.
Even if the deceit is practiced against the second purchaser but damage is incurred by the first purchaser, there is violation of par.1 of Art. 316.
The omitted phrase “as free from encumbrance” in par 2 of Art. 316 is the basis of the ruling that silence as to such encumbrance does not involve a crime.
Since the penalty is based on the “value of the damage” there must be actual damage caused. Par. 2. By disposing of real property as free from encumbrance, although such encumbrance be not recorded Elements: (a) The thing disposed of is real property. (b) Offender knew that the real property was encumbered, whether the encumbrance is recorded or not. (c) There was express representation by the offender that the real property is free from encumbrance. (d) Act of disposing of the real property was made to the damage of another.
Par. 3. By wrongfully taking by the owner of his personal property from its lawful possessor Elements: (a) Offender is the owner of personal property. (b) Said property is in the lawful possession of another. (c) Offender wrongfully takes it from its lawful possessor. (d) Prejudice is thereby caused to the lawful possessor or third person. Offender must wrongfully take the personal property from the lawful possessor. Wrongfully 417
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take does not include the use of violence or intimidation.
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In case the person who received it later refused or failed to return it to the owner of the money, Art. 315 subdivision 1(b) is applicable.
If the thing is taken by means of violence, without intent to gain, it is not estafa, but grave coercion.
Par. 6. By selling, mortgaging or encumbering real property or properties with which the offender guaranteed the fulfilment of his obligation as surety Elements: (a) Offender is a surety in a bond given in a criminal or civil action. (b) He guaranteed the fulfillment of such obligation with his real property or properties. (c) He sells, mortgages, or, in any other manner encumbers said real property. (d) That such sale, mortgage, or encumbrance is (1) Without express authority from the court, or (2) Made before the cancellation of his bond, or (3) Before being relieved from the obligation contracted by him.
If the owner took the personal property from its lawful possessor without the latter’s knowledge and later charged him with the value of the property, the crime is theft. If there is intent to charge the bailee with its value, the crime is robbery. [US v Albao] Par. 4. By executing any fictitious contract to the prejudice of another Elements: (a) Offender executes a contract (b) Contract is fictitious (c) Prejudice is caused. Illustration: A person who simulates a conveyance of his property to another to defraud his creditors. If the conveyance is real and not simulated, the crime is fraudulent insolvency.
There must be damage caused under Art. 316.
Par. 5. By accepting any compensation for services not rendered or for labor not performed Elements: (a) Offender accepts any compensation for services or labor (b) He did not render any service or perform any labor
Estafa under PD 1689: Increasing the Penalty for Certain Forms of Swindling or Estafa Syndicated estafa (1) Estafa or other forms of swindling as defined by Art. 315 and 316 RPC was committed; (2) The swindling is committed by a syndicate consisting of five or more persons formed with the intention of carrying the unlawful or illegal act/transaction/enterprise/scheme; and (3) The defraudation results in the misappropriation of money contributed by stockholders, or members of rural banks, cooperative, “samahang nayon(s)”, or farmers association, or of funds solicited by
There must be fraud. Otherwise, it will only be solutio indebiti, with civil obligation to return the wrong payment. If the money in payment of a debt was delivered to a wrong person, Art. 316 par 5 is not applicable.
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corporations/associations from the general public. Penalty: Life imprisonment to death
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Acts punished: (1) By defrauding or damaging another by any other deceit not mentioned in the preceding articles. (2) By interpreting dreams, by making forecasts, by telling fortunes, or by taking advantage of the credulity of the public in any other manner, for profit or gain.
Large-scale Estafa (1) Estafa or other forms of swindling as defined by Art. 315 and 316 RPC was committed; (2) The swindling is NOT committed by a syndicate as defined above; (3) The defraudation results in the misappropriation of money contributed by stockholders, or members of rural banks, cooperative, “samahang nayon(s)”, or farmers association, or of funds solicited by corporations/associations from the general public; and (4) Amount of fraud exceeds Php. 100,000 Penalty: Reclusion temporal to reclusion perpetua
Any other kind of conceivable deceit may fall under this article. As in other cases of estafa, damage to the offended party is required. The deceits in this article include false pretenses and fraudulent acts. Chattel Mortgage The object of the Chattel Mortgage Law is to give the necessary sanction to the statute, so that mortgage debtors may be deterred from violating its provisions and mortgage creditors may be protected against loss or inconvenience from wrongful removal or sale of mortgaged property.
ARTICLE 317 - SWINDLING OF A MINOR Elements: (a) Offender takes advantage of the inexperience or emotions or feelings of a minor. (b) He induces such minor (1) to Assume an obligation, or (2) to Give release, or (3) to Execute a transfer of any property right. (d) That the consideration is (1) some loan of money, (2) Credit, or (3) Other personal property. (e) That the transaction is to the detriment of such minor.
CHAPTER 7: CHATTEL MORTGAGE ARTICLE 319 - REMOVAL, SALE, OR PLEDGE OF MORTGAGED PROPERTY Acts punishable under Art. 319: (3) By knowingly removing any personal property mortgaged under the Chattel Mortgage Law to any province or city other than the one in which it was located at the time of execution of the mortgage, without the written consent of the mortgagee or his executors, administrators or assigns. (4) By selling or pledging personal property already pledged, or any part thereof, under the terms of the Chattel Mortgage Law, without the consent of the mortgagee written on the back of the mortgage and noted on the record thereof in the office of
Real property is not included because only money, credit and personal property are enumerated, and because a minor cannot convey real property without judicial authority.
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the register of deeds of the province where such property is located.
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Elements of selling or pledging personal property already pledged: (a) Personal property is already pledged under the terms of the Chattel Mortgage Law. (b) The offender, who is the mortgagor of such property, sells or pledges the same or any part thereof. (c) There is no consent of the mortgagee written on the back of the mortgage and noted on the record thereof in the office of the register of deeds.
Chattel mortgage must be valid and subsisting. If chattel mortgage does not contain an affidavit of good faith and is not registered, it is void and cannot be prosecuted under Art 319 Elements of knowingly removing mortgaged personal property: (a) Personal property is mortgaged under the Chatter Mortgage Law. (b) Offender knows that such property is so mortgaged. (c) He removes such mortgaged personal property to any province or city other than the one in which it was located at the time of the execution of the mortgage. (d) The removal is permanent. (e) There is no written consent of the mortgagee or his executors, administrators or assigns to such removal.
The consent of the mortgagee must be (1) in writing, (2) on the back of the mortgage, and (3) noted on the record thereof in the office of the register of deeds. Damage is NOT essential. Chattel mortgage may give rise to estafa by means of deceit. Art 319
A person other than the mortgagor who removed the property to another province, knowing it to be mortgaged, may be liable. The removal of the mortgaged personal property must be coupled with intent to defraud.
Art 316 Estafa
In both there is selling of a mortgaged property.
No felonious intent if transfer of personal property is due to change of residence. If the mortgagee opted to file for collection, not foreclosure, abandoning the mortgage as basis for relief, the removal of property to another province is not a violation of Art 319 par1. In estafa, the property involved is real property. In sale of mortgaged property, it is personal property.
Personal property
Property involved is real property(Art. 316 par 2)
Committed by the mere failure to obtain consent of the mortgagee in writing, even if offender should inform the purchaser that the thing sold is mortgaged
Committed by selling real property mortgaged as free, even though the vendor may have obtained the consent of the mortgagee in writing.
Purpose: to protect the Purpose: to protect the mortgagee purchaser (1st or 2nd)
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CHAPTER 8: ARSON AND OTHER CRIMES INVOLVING DESTRUCTION
occupied by one or more persons and the offender knew it when the house was burned.
Articles 320-326-B have been repealed by PD 1613 (Amending the Law on Arson)
No complex crime of arson with homicide. If by reason of or on the occasion of arson death results, the penalty of reclusion perpetua to death shall be imposed. Homicide is absorbed.
KINDS OF ARSON: (1) Arson (PD 1613, Sec. 1) (2) Destructive arson (Art. 320, as amended by RA 7659) (3) Other cases of arson (Sec. 3, PD 1613)
Any of 7 circumstances in Sec. 6 of PD 1613 is sufficient to establish fact of arson if unexplained.
PD 1613, §1. ARSON
How is the crime of Arson proved?
Section 1. Arson. Any person who burns or sets fire to the property of another shall be punished by Prision Mayor.
In the prosecution for Arson, proof of the crime charged is complete where the evidence establishes: (1) the corpus delicti, i.e., a fire because of criminal agency; and (2) the identity of the defendant as the one responsible for the crime.
The same penalty shall be imposed when a person sets fire to his own property under circumstances which expose to danger the life or property of another.
In Arson, the corpus delicti rule is satisfied by proof of the bare fact of the fire and of it having been intentionally caused. [Gonzales, Jr. v. People, 2007]
Attempted, Frustrated, and Consummated Arson Attempted arson – A person, intending to burn a wooden structure, collects some rags, soaks them in gasoline and places them beside the wooden wall of the building. When he was about to light a match to set fire to the rags, he is discovered by another who chases him away. In attempted arson, it is not necessary that there be a fire.
PD 1613, §2. DESTRUCTIVE ARSON SEC. 2. Destructive Arson—The penalty of Reclusion Temporal in its maximum period to Reclusion Perpetua shall be imposed if the property burned is any of the following: (1) Any ammunition factory and other establishment where explosives, inflammable or combustible materials are stored. (2) Any archive, museum, whether public or private, or any edifice devoted to culture, education or social services. (3) Any church or place of worship or other building where people usually assemble.
Frustrated arson – If that person is able to light or set fire to the rags, but the fire was put out before any part of the building was burned. Consummated arson – If before the fire was put out, it had burned a part of the building. If the property burned is an inhabited house or dwelling, it is not required that the house be
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(4) Any train, airplane or any aircraft, vessel or watercraft, or conveyance for transportation of persons or property. (5) Any building where evidence is kept for use in any legislative, judicial, or administrative or other official proceeding. (6) Any hospital, hotel, dormitory, lodging house, housing tenement, shopping center, public or private market, theater or movie house or any similar place or building. (7) Any building, whether used as a dwelling or not, situated in a populated or congested area.
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(a) if the main objective is the burning of the building or edifice, but death results by reason or on the occasion of arson, the crime is simply Arson, and the resulting homicide is absorbed; (b) if, on the other hand, the main objective is to kill a particular person who may be in a building or edifice, when fire is resorted to as the means to accomplish such goal, the crime committed is Murder only; and lastly, (c) if the objective is, likewise, to kill a particular person, and in fact the offender has already done so, but fire is resorted to as means to cover up the killing, then there are two separate and distinct crimes committed – Homicide/Murder and Arson
SEC. 3. Other Cases of Arson—The penalty of Reclusion Temporal to Reclusion Perpetua shall be imposed if the property burned is any of the following: (1) Any building used as offices of the government or any of its agencies (2) Any inhabited house or dwelling (3) Any industrial establishment, shipyard, oil well or mine shaft, platform or tunnel (4) Any plantation, farm, pasture land, growing crop, grain field, orchard, bamboo grove or forest; (5) Any rice mill, sugar mill, cane mill or mill central (6) Any railway or bus station, airport, wharf or warehouse
CHAPTER 9 MALICIOUS MISCHIEF Malicious Mischief – It is the willful causing of damage to another’s property for the sake of causing damage because of hate, revenge or other evil motive.
ARTICLE 327 - WHO ARE RESPONSIBLE Elements of malicious mischief: (a) Offender deliberately caused damage to the property of another. (b) Such act does not constitute arson or other crimes involving destruction (c) The act of damaging another’s property was committed merely for the sake of damaging it.
Article 320, RPC, as amended, with respect to destructive arson, and the provisions of PD 1613 respecting other cases of arson provide only one penalty for the commission of arson, whether destructive or otherwise, where death results therefrom. The raison d’etre is that arson is itself the end and death is simply the consequence.
If there is no malice in causing damage, the obligation to pay for the damages is only civil (Art. 2176) Damage means not only loss but also diminution of what is a man’s own. Thus, damage to another’s house includes defacing it. [People v Asido]
In cases where both burning and death occur, in order to determine what crime/crimes was/were perpetrated – whether arson, murder, or arson and homicide/murder, it is de rigueur to ascertain the main objective of the malefactor: 422
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ARTICLE 328 - SPECIAL CASES OF MALICIOUS MISCHIEF
Q: What is the crime when, as a result of the damage caused to railway, certain passengers of the train are killed? A: It depends. Art. 330 says “without prejudice to the criminal liability of the offender for other consequences of his criminal act.”
Special cases of malicious mischief: (qualified malicious mischief) (1) Causing damage to obstruct the performance of public functions (2) Using any poisonous or corrosive substance (3) Spreading infection or contagion among cattle (4) Causing damage to property of the National Museum or National Library, or to any archive or registry, waterworks, road, promenade, or any other thing used in common by the public.
If there is no intent to kill, the crime is “damages to means of communication” with homicide because of the first paragraph of Art. 4 and Art. 48. If there is intent to kill, and damaging the railways was the means to accomplish the criminal purpose, the crime is murder
ARTICLE 329 - OTHER MISCHIEFS
ARTICLE 331 – DESTROYING OR DAMAGING STATUES, PUBLIC MONUMENTS OR PAINTINGS
Other mischiefs not included in Art. 328 are punished based on value of the damage caused.
Acts punished: (1) Destroying or damaging statues or any other useful or ornamental public monument (2) Destroying or damaging any useful or ornamental painting of a public nature.
If the amount involved cannot be estimated, the penalty of arresto menor or fine not exceeding P200 is fixed by law. When several persons scattered coconut remnants which contained human excrement on the stairs and floor of the municipal building, including its interior, the crime committed is malicious mischief under Art. 329. [People v Dumlao]
ARTICLE 330 DAMAGE OBSTRUCTION TO MEANS COMMUNICATION
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The penalty is lower if the thing destroyed is a public painting, rather than a public monument.
CHAPTER 10: EXEMPTION CRIMINAL LIABILITY
AND OF
FROM
ARTICLE 332 - EXEMPTION FROM CRIMINAL LIABILITY IN CRIMES AGAINST PROPERTY
Committed by damaging any railway, telegraph, or telephone lines. If the damage shall result in any derailment of cars, collision, or other accident, a higher penalty shall be imposed. (Qualifying Circumstance)
Crimes involved in the exemption: (1) Theft (2) Swindling (estafa) (3) Malicious mischief
Telegraph/phone lines must pertain to railways.
If the crime is robbery, exemption does not lie.
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Persons exempt from criminal liability: (1) Spouses, ascendants and descendants, or relatives by affinity in the same line. (2) The widowed spouse with respect to the property which belonged to the deceased spouse before the same passed into the possession of another. (3) Brothers and sisters and brothers-in-law and sisters-in-law, if living together.
(7) Art. 340: Corruption of minors (8) Art. 341: White Slave Trade (9) Art. 342: Forcible Abduction (10) Art. 343: Consented Abduction (11) Art. 344: Prosecution of the crimes of Adultery (12) Art. 345: Civil Liability (13) Art. 346: Liability of ascendants, guardians, teachers, or other persons entrusted with custody of the offended party
The law recognizes the presumed co-ownership of the property between the offender and the offended party. There is no criminal, but only civil liability.
ARTICLE 333 - ADULTERY Elements: (a) The woman is married; (b) She has sexual intercourse with a man not her husband; (c) As regards the man with whom she has sexual intercourse: he knows her to be married.
Art. 332 does not apply to a stranger who participates in the commission of the crime. Stepfather and stepmother are included as ascendants by affinity. [People v Alvarez; People v Adame]
LEGENDS: H – husband; W – wife; M - marriage Offenders: Married woman and/or the man who has carnal knowledge of her, knowing her to be married, even if the M be subsequently declared void. It is not necessary that there be a valid M (i.e. void ab initio)
Guevarra: An adopted or natural child should also be considered as included in the term “descendants” and a concubine or paramour within the term “spouses”. Art. 332 also applies to common-law spouses. [Art. 144, CC; People v Constantino]
Essence of adultery: violation of the marital vow
See again: RA 9372: Human Security Act on Punishable Acts of Terrorism, supra
Gist of the crime: the danger of introducing spurious heirs into the family, where the rights of the real heirs may be impaired and a man may be charged with the maintenance of a family not his own. (US v. Mata)
Title XI. Crimes against Chastity (1) (2) (3) (4) (5) (6)
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The offended party must be legally married to the offender at the time of the filing of the complaint, even if the marriage be subsequently declared void.
Art. 333: Adultery Art. 334: Concubinage Art. 336: Acts of Lasciviousness Art. 337: Qualified Seduction Art. 338: Simple Seduction Art. 339: Acts of Lasciviousness with the consent of the offended party
Each sexual intercourse constitutes a crime of adultery.
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Abandonment without justification is not exempting, but only mitigating. Both defendants are entitled to this mitigating circumstance.
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Effect of consent: The husband, knowing that his wife, after serving sentence for adultery, resumed living with her co-defendant, did nothing to interfere with their relations or to assert his rights as husband. The second charge of adultery should be dismissed because of consent. [People v. Sensano and Ramos]
The man, to be guilty of adultery, must have knowledge of the married status of the woman. A married man who is not liable for adultery, because he did not know that the woman is married, may be held liable for concubinage.
Agreement to separate may be used as evidence to show consent by the husband to the infidelity of his wife.
Acquittal of one of the defendants does not operate as a cause of acquittal of the other.
Effect of death of paramour: Offending wife may still be prosecuted. The requirement that both offenders should be included in the complaint is absolute only when the two offenders are alive.
Under the law, there is no accomplice in adultery. Direct proof of carnal knowledge is not necessary. Circumstantial evidence is sufficient. (i.e. love letters signed by the paramour, photos showing intimate relations, testimony of witnesses)
Effect of death of offended party: The proceedings may continue. Art. 353 seeks to protect the honor and reputation not only of the living but of dead persons as well.
ARTICLE 334 - CONCUBINAGE
Pardon by the H does not exempt the adulterous W and her paramour from criminal liability for adulterous acts committed subsequent to such pardon, because the pardon refers to previous and not to subsequent adulterous acts
Elements: (1) The man is married; (2) He is either: (a) keeping a mistress in the conjugal dwelling; (b) Having sexual intercourse under scandalous circumstance with a woman not his wife; (c) Cohabiting with her in any other place; (3) As regards the woman, she knows him to be married.
Effect of Pardon - applies to Concubinage as well: (1) The pardon must come before the institution of the criminal prosecution; and (2) Both the offenders must be pardoned by the offended party. Act of sexual intercourse subsequent to adulterous conduct is considered as an implied pardon. (3) Pardon of the offenders by the offended party is a bar to prosecution for adultery or concubinage. (4) Delay in the filing of complaint, if satisfactorily explained, does not indicate pardon.
Offenders: married man and the woman who knows him to be married. The woman only becomes liable if she knew him to be married prior to the commission of the crime.
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In the 3rd way of committing the crime, mere cohabitation is sufficient; Proof of scandalous circumstances not necessary. [People v. Pitoc, et. al.]
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occasion to the neighbors’ spiritual damage or ruin. [People v. Santos] It is only when the mistress is kept elsewhere (outside the conjugal dwelling) that “scandalous circumstances” become an element of the crime. [US v. Macabagbag]
A married man is not liable for concubinage for mere sexual relations with a woman not his wife. A man would only be guilty of concubinage if he appeared to be guilty of any of the acts punished in Art. 334.
Qualifying expression: Sexual act which may be proved by circumstantial evidence
A married man who is not liable for adultery because he did not know that the woman was married, may be held liable for concubinage. If the woman knew that the man was married, she may be held liable for concubinage as well.
Scandal produced by the concubinage of H: (1) H and mistress live in the same room of a house (2) They appear together in public, (3) Perform acts in sight of the community which give rise to criticism and general protest among the neighbors.
Mistress – a woman taken by the accused to live with him in the conjugal dwelling as his mistress/concubine. [People v. Bacon and People v. Hilao]
When spies are employed for the purpose of watching the conduct of the accused and it appearing that none of the people living in the vicinity has observed any suspicious conduct, there is no evidence of scandalous circumstances. [US v. Campos Rueda]
Keeping a mistress in the conjugal dwelling – no positive proof of sexual intercourse is necessary Conjugal Dwelling – the home of the H and the W even if the wife appears to be temporarily absent on any account.
Reason: Adultery is punished more severely than concubinage because adultery makes possible the introduction of another man’s offspring into the family so that the offended H may have another man’s son bearing H’s name and receiving support from him.
The dwelling of the spouses was constructed from the proceeds of the sale of their conjugal properties. The fact that W never had a chance to reside therein and that H used it with his mistress instead, does not detract from its nature. [People v. Cordova (1959)]
ARTICLE 336 - ACTS OF LASCIVIOUSNESS Elements: (a) The offender commits any act of lasciviousness or lewdness; (b) The act is committed against a person of either sex; (c) It is done under any of the ff. circumstances: (1) By using force or intimidation; or (2) When the offended party is deprived of reason or otherwise unconscious;
Cohabit – to dwell together as H and W for a period of time (i.e. A week, a month, year or longer) Scandalous circumstances – Scandal consists in any reprehensible word or deed that offends public conscience, redounds to the detriment of the feelings of honest persons, and gives 426
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(3) By means of fraudulent machination or grave abuse of authority (4) When the offended party is under 12 years of age or is demented. Lewd – obscene, lustful, indecent, lecherous; signifies form of immorality which has relation to moral impurity or that which is carried in wanton manner
Lascivious intent is implied from the nature of the act and the surrounding circumstances.
Must be accompanied by acts of lasciviousness or lewdness.
Moral compulsion amounting to intimidation is sufficient.
Attempted Rape
The performance of acts of lascivious character Acts performed do not indicate that the accused was to lie w/ the offended party.
of
Acts performed clearly indicate that the accused’s purpose was to lie w/ the offended woman.
Lascivious acts are the Lascivious acts are final objective sought only the preparatory by the offender. acts to the commission of rape.
Acts of Lasciviousness v. Grave Coercion Acts of Lasciviousness
grave
Offended party is a person of either sex.
Consider the act and the environment to distinguish between Acts of Lasciviousness and Attempted Rape. Desistance in the commission of attempted rape may constitute acts of lasciviousness. acts
of
Same means of committing the crime: (1) Force, threat, or intimidation is employed; or (2) By means of fraudulent machination or grave abuse of authority; or (3) The offended party is deprived of reason or otherwise unconscious; or (4) Victim is under 12 yrs. of age or is demented
Absent any of the circumstances of rape under the 3rd element, the crime is UNJUST VEXATION. (e.g. touching of breast)
frustrated
offense coercion.
Acts of Lasciviousness
Example: If the kissing etc. was done inside church (which is a public place), absence of lewd designs may be proven, and the crime is unjust vexation only. But if the kissing was done in the house of a woman when she was alone, the circumstances may prove the accused’s lewd designs.
and
force.
Acts of Lasciviousness v. Attempted Rape
Motive of lascivious acts is not important because the essence of lewdness is in the very act itself.
No attempted lasciviousness.
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Grave Coercion
Compulsion or force is Compulsion or force is included in the the very act constructive element of constituting the 427
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Abuses against chastity (Art. 245) v Acts of lasciviousness (Art. 336) Offenses Chastity
against Abuses Chastity
to the elements of acts of lasciviousness are as follows: (1) The accused commits the act of sexual intercourse or lascivious conduct. (2) The said act is performed with a child exploited in prostitution or subjected to other sexual abuse. (3) The child, whether male or female, is below 18 years of age. [Navarrete vs. People (2007)]
against
Committed by a private Committed by a public individual, in most officer only cases Some act of lasciviousness should have been executed by the offender.
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Mere immoral or indecent proposal made earnestly and persistently is sufficient.
“Lascivious conduct” is defined under Section 2 (h) of the rules and regulations of RA 7610 as: (1) The intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, OR the introduction of any object into the genitalia, anus or mouth, of any person, (2) whether of the same or opposite sex, (3) with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, (4) bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person
The accused followed the victim, held her, embraced her, tore her dress, and tried to touch her breast. When a complaint for acts of lasciviousness was filed against him, accused claimed that he had no intention of having sexual intercourse with her and that he did the acts only as revenge. TC found the accused guilty of FRUSTRATED ACTS OF LASCIVIOUSNESS. SC held that there is no frustrated crime against chastity which includes acts of lasciviousness, adultery, and rape. [People v. Famularcano]
Comparison with art. 366, RPC Acts of lasciviousness is punished under RA 7610 when performed on a child below 18 years of age exploited in prostitution or subjected to other sexual abuse.
From the moment the offender performs all the elements necessary for the existence of the felony, he actually attains his purpose. Motive of revenge is of no consequence since the element of lewdness is in the very act itself. Example: Compelling a girl to dance naked before a man is an act of lasciviousness, even if the dominant motive is revenge, for her failure to pay a debt.
See discussion above for other acts of abuse The sweetheart theory applies in acts of lasciviousness and rape, felonies committed against or without the consent of the victim. It operates on the theory that the sexual act was consensual. It requires proof that the accused and the victim were lovers and that she consented to the sexual relations.
TWO KINDS OF SEDUCTION: (1) Qualified seduction (Art. 337) (2) Simple seduction (Art. 338)
For purposes of sexual intercourse and lascivious conduct in child abuse cases under RA 7610, the sweetheart defense is
“Lascivious Conduct” under RA 7610 The elements of sexual abuse under Section 5 (b) of RA 7610 that must be proven in addition 428
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unacceptable. A child exploited in prostitution or subjected to other sexual abuse cannot validly give consent to sexual intercourse with another person. [Malto v. People (2007)]
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Virgin - a woman of chaste character and of good reputation. The offended party need not be physically a virgin.
ARTICLE 337 - QUALIFIED SEDUCTION
If there is no sexual intercourse and only acts of lewdness are performed, the crime is acts of lasciviousness. If any of the circumstances in the crime of rape is present, the crime is not to be punished under Art. 337.
Seduction - enticing a woman to unlawful sexual intercourse by promise of marriage or other means of persuasion without use of force. It applies when there is abuse of authority (qualified seduction) or deceit (simple seduction).
The accused charged with rape cannot be convicted of qualified seduction under the same information.
Two classes of Qualified Seduction and their elements: (1) Seduction of a virgin over 12 years and under 18 years of age by certain persons such as, a person in authority, priest, teacher or any person who, in any capacity shall be entrusted with the education or custody of the woman seduced. Elements: (a) Offended party is a virgin, which is presumed if she is unmarried and of good reputation; (b) She is over 12 and under 18 yrs. of age; (13-17 years 11 months 29 days) (c) Offender has sexual intercourse with her; (d) There is abuse of authority, confidence, or relationship on the part of the offender.
Offenders in Qualified Seduction: (1) Those who abused their authority: (a) Person in public authority; (b) Guardian; (c) Teacher; (2) Person who, in any capacity, is entrusted with the education or custody of the woman seduced. (a) Those who abused confidence reposed in them: (b) Priest; (c) House servant; (d) Domestic (3) Those who abused their relationship: (a) Brother who seduced his sister; (b) Ascendant who seduced his descendant.
(3) Seduction of a sister by her brother, or descendant by her ascendant, regardless
“Domestic” - a person usually living under the same roof, pertaining to the same house.
of her age or reputation. Not necessary that the offender be the teacher of the offended party; it is sufficient that he is a teacher in the same school.
Elements (a) Offended party need not be a virgin or she may be over 18 years old (b) Offender has sexual intercourse with her (c) Offender is her brother or ascendant by consanguinity, whether legitimate or illegitimate.
Qualified seduction may also be committed by a master to his servant, or a head of the family to any of its members.
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Qualified seduction of a sister or descendant, also known as INCEST, is punished by a penalty next higher in degree.
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charge of Consented Abduction. Mendoza then filed a complaint for Qualified Seduction. Perez moved to dismiss the case on the grounds of double jeopardy.
The age, reputation, or virginity of the sister or descendant is irrelevant. The relationship need not be legitimate.
HELD: There are similar elements between consented abduction and qualified seduction, namely: (1) the offended party is a virgin, and (2) over 12 but under 18 yrs. of age
A 15-year old virgin, who was brought by her mother to the house of the accused and his wife to serve as a helper, repeatedly yielded to the carnal desires of the accused, as she was induced by his promises of marriage and frightened by his acts of intimidation.
However, an acquittal for CONSENTED ABDUCTION will not preclude the filing of a charge for QUALIFIED SEDUCTION because the elements of the two crimes are different. [Perez v. CA]
HELD: DECEIT, although an essential element of ordinary or simple seduction, does not need to be proved or established in a charge of qualified seduction. It is replaced by ABUSE OF CONFIDENCE. [People v. Fontanilla]
NOTE: The fact that the girl gave consent to the sexual intercourse is not a defense.
ARTICLE 338 - SIMPLE SEDUCTION The accused, a policeman, brought a 13-year old girl with low mentality, to the ABC Hall where he succeeded in having sexual intercourse with her. The complaint did not allege that the girl was a virgin. The accused was charged with RAPE but convicted of QUALIFIED SEDUCTION.
Elements: (a) Offended party is over 12 and under 18 years of age; (b) She is of good reputation, single or widow; (c) Offender has sexual intercourse with her; (d) It is committed by means of deceit.
HELD: Though it is true that virginity is presumed if the girl is over 12 but under 18, unmarried and of good reputation, virginity is still an essential element of the crime of qualified seduction and must be alleged in the complaint. Accused is guilty of RAPE, considering the victim’s age, mental abnormality and deficiency. There was also intimidation with the accused wearing his uniform. [Babanto v. Zosa]
Purpose of the law - To punish the seducer who by means of promise of marriage, destroys the chastity of an unmarried female of previous chaste character Virginity of offended party is not essential, good reputation is sufficient. Virginity of offended party is not required. Deceit generally takes the form of unfulfilled promise of marriage. Promise of marriage must be the inducement and the woman must yield because of the promise or other inducement.
Perez succeeded in having sexual intercourse with Mendoza after he promised to marry her. As he did not make good on said promise, Mendoza filed a complaint for Consented Abduction. Trial Court found that the acts constituted seduction, acquitting him on the 430
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What about unfulfilled promise of material things, as when the woman agrees to sexual intercourse in exchange for jewelry? This is not seduction because she is a woman of loose morals.
circumstances w/c, had there been carnal knowledge, would amount to rape
Promise of marriage after sexual intercourse does not constitute deceit. Promise of marriage by a married man is not a deceit, if the woman knew him to be married.
Offended party is a Offended party should female or male only be female
Seduction is not a continuing offense.
ARTICLE 340 - CORRUPTION OF MINORS
ARTICLE 339 - ACTS OF LASCIVIOUSNESS WITH THE CONSENT OF THE OFFENDED PARTY
Elements: (a) Offender promotes or facilitates the prostitution or corruption of persons under age (minors), (b) Purpose is to satisfy the lust of another
Elements: (a) Offender commits acts of lasciviousness or lewdness; (b) The acts are committed upon a woman who is a virgin or single or widow of good reputation, under 18 yrs. of age but over 12 yrs., or a sister or descendant, regardless of her reputation or age; (c) The offender accomplishes the acts by abuse of authority, confidence, relationship, or deceit.
Habituality or abuse of authority or confidence is not necessary. It is not necessary that the unchaste acts shall have been done. Mere proposal will consummate the offense. The victim must be of good reputation, not a prostitute or corrupted person.
It is necessary that it be committed under circumstances which would make it qualified or simple seduction had there been sexual intercourse, instead of acts of lewdness only.
There is a crime of Attempted Child Prostitution. (Sec. 6, RA 7610) See again: RA 7610: Special Protection of Children against Child Abuse, Exploitation and Discrimination (supra)
When the victim is under 12 yrs., the penalty shall be one degree higher than that imposed by law. (sec. 10 of R.A. 7610)
ARTICLE 341 - WHITE SLAVE TRADE Acts punishable: (1) Engaging in business of prostitution (2) Profiting by prostitution (3) Enlisting the services of women for the purpose of prostitution. Habituality is not a necessary element of white slave trade.
Males cannot be the offended party.
Acts of Lasciviousness Acts of Lasciviousness (Art. 336) with consent (Art. 339) Committed
under Committed
circumstances w/c, had there been carnal knowledge, would amount to either qualified or simple seduction
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‘Under any pretext’ – one who engaged the services of a woman allegedly as a maid, but in reality for prostitution, is guilty under this article.
Crimes against chastity where age and reputation are immaterial: (1) Acts of lasciviousness against the will or without the consent of the offended party (2) Qualified seduction of sister or descendant (3) Forcible abduction
Victim is under 12 yrs., penalty shall be one degree higher. Offender need not be the owner of the house.
The taking away of the woman must be against her will.
Maintainer or manager of house of ill-repute need not be present therein at the time of raid or arrest. Corruption of Minors Minority essential
of
The taking away of the woman may be accomplished by means of deceit first and then by means of violence and intimidation.
White Slave Trade
If the female abducted is under 12, the crime is forcible abduction, even if she voluntarily goes with her abductor.
victims Minority is not required
Victims may be male or Applies female females
only
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to When the victim was abducted by the accused without lewd designs, but for the purpose of lending her to illicit intercourse with others, the crime is not abduction but corruption of minors.
May not necessarily be Generally for profit for profit Committed by a single Generally committed act habitually
Rape may absorb forcible abduction, if the main objective was to rape the victim.
TWO KINDS OF ABDUCTION:
Sexual intercourse is not necessary in forcible abduction.
(1) Forcible abduction (Art. 342) (2) Consented abduction (Art. 343)
Lewd designs may be shown by the conduct of the accused. When there are several defendants, it is enough that one of them had lewd designs. Husband is not liable for abduction of his wife, as lewd design is wanting.
ARTICLE 342 - FORCIBLE ABDUCTION Elements: (a) The person abducted is any woman, regardless of her age, civil status or reputation; (b) The abduction is against her will; (c) The abduction is with lewd designs.
Attempt to rape is absorbed in the crime of forcible abduction, thus there is no complex crime of forcible abduction with attempted rape.
Abduction – the taking away of a woman from her house or the place where she may be for the purpose of carrying her to another place with the intent to marry or to corrupt her.
Nature of the crime - The act of the offender is violative of the individual liberty of the abducted, her honor and reputation, and public order.
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Forcible Abduction
HELD: The elements of both rape and forcible abduction are proven. The presence of lewd designs in forcible abduction is manifested by the subsequent rape of the victim. [People v. Sunpongco]
Grave Coercion
There is violence or intimidation by the offender. The offended party is compelled to do something against her will. Abduction characterized lewd design.
Maggie was abducted and brought to a hotel, where the 4 accused took turns in raping her. HELD: While the first act of rape was being performed, the crime of forcible abduction had already been consummated, hence, forcible abduction can only be attached to the first act of rape, detached from the 3 subsequent acts of rape. The effect therefore would be one count of forcible abduction with rape and 4 counts of rape for each of the accused. [People v. Jose]
is No lewd design, by provided that there is no deprivation of liberty for an appreciable length of time.
Forcible Abduction
Corruption of Minors
Purpose is to effect Purpose is to lend the his lewd designs on victim to illicit the victim. intercourse with others. Forcible Abduction
The accused and 2 other men raped the victim. The victim was a jeepney passenger who was prevented from leaving the jeepney. She was taken to a remote place where she was raped.
Serious Illegal Detention HELD: The accused is guilty of FORCIBLE ABDUCTION WITH RAPE. It was proven that the victim was taken against her will and with lewd design, and was subsequently forced to submit to the accused’s lust, rendering her unconscious in the process. [People v. Alburo]
There is deprivation of There is deprivation of liberty and lewd liberty and no lewd designs. designs
Forcible Abduction with Rape
Kidnapping with rape so
There can only be one complex crime of forcible abduction with rape.
Crime against liberty
The victim witnessed the killing of another by the 2 accused. Upon seeing her, the accused dragged her to a vacant lot where they took turns in raping her. TC convicted them of rape.
The violent taking of the Not woman is motivated by lewd motivated designs. Crime against chastity
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Forcible Abduction with Rape - a complex crime under Art. 48, and not a special complex crime
HELD: FORCIBLE ABDUCTION is absorbed the crime of RAPE if the main objective is rape the victim. Conviction of acts lasciviousness is not a bar to conviction forcible abduction. [People v. Godines]
The victim was abducted by the accused and was brought to a hotel where the latter succeeded in having sexual intercourse with her.
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ARTICLE 343 - CONSENTED ABDUCTION
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The court motu proprio can dismiss the case for failure of the aggrieved party to file the proper complaint even if the accused never raised the question on appeal.
Elements: (a) Offended party is a virgin; (b) She is over 12 and under 18 yrs. of age; (c) Offender takes her away with her consent, after solicitation or cajolery from the offender; (d) The taking away is with lewd designs.
Crimes against chastity cannot be prosecuted de oficio. ADULTERY AND CONCUBINAGE
Purpose of the law - Not to punish the wrong done to the girl because she consents to it, but to prescribe punishment for the disgrace to her family and the alarm caused by the disappearance of one who is, by her age and sex, susceptible to cajolery and deceit.
Who may file the complaint: Adultery and Concubinage must be prosecuted upon complaint signed by the offended spouse. The offended party cannot institute criminal prosecution without including BOTH the guilty parties if they are alive. Both parties must be included in the complaint even if one of them is not guilty.
If the virgin is under 12 or is deprived of reason, the crime is forcible abduction because such is incapable of giving a valid consent.
Consent and pardon bar the filing of a criminal complaint.
The taking away of the girl need not be with some character of permanence. Offended party need not be taken from her house.
The imputation of a crime of prostitution against a woman can be prosecuted de oficio, but crimes against chastity cannot.
When there was no solicitation or cajolery and no deceit and the girl voluntarily went with the man, there is no crime committed even if they had sexual intercourse.
ARTICLE 344 - PROSECUTION PRIVATE OFFENSES (1) (2) (3) (4) (5)
Prosecution of rape may be made upon complaint by any person.
OF
Effect of Pardon: (1) Effect of Pardon in Adultery applies also to Concubinage (2) Condonation or forgiveness of one act of adultery or concubinage is not a bar to prosecution of similar acts that may be committed by the offender in the future. Consent: (1) May be express or implied (2) Given before the adultery or concubinage was committed (3) Agreement to live separately may be evidence of consent.
Adultery Concubinage Seduction Abduction Acts of lasciviousness
Nature of the complaint: The complaint must be filed in court, not with the fiscal. In case of complex crimes, where one of the component offenses is a public crime, the criminal prosecution may be instituted by the fiscal.
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(4) Affidavit showing consent may be a basis for new trial. SEDUCTION, ABDUCTION, LASCIVIOUSNESS
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(4) Pardon by the offended party who is a minor must have the concurrence of parents, EXCEPT when the offended party has no parents.
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Rape complexed with another crime against chastity need NOT be signed by the offended woman, since rape is a public crime. When the evidence fails to prove a complex crime of rape with another crime, and there is no complaint signed by the offended woman, the accused CANNOT be convicted of rape.
Seduction, abduction, or acts of lasciviousness must be prosecuted upon complaint signed by— (1) Offended party - When the offended party is a minor, her parents may file the complaint. (2) When the offended party is of age and is in complete possession of her mental and physical faculties, she alone can file the complaint. (3) Parents, Grandparents or Guardian in that order –
Marriage of the offender with the offended party in seduction, abduction, acts of lasciviousness and rape, extinguishes criminal action or remits the penalty already imposed.
When the offended is a minor or incapacitated and refuses to file the complaint, any of the persons mentioned could file.
Marriage (in cases of seduction, abduction, and acts of lasciviousness) extinguishes the criminal action even as to co-principals, accomplices, and accessories.
The term “guardian” refers to legal guardian. He must be legally appointed by the Court.
Marriage must be entered into in good faith.
The State may also file the complaint as parens patriae when the offended party dies or becomes incapacitated before she could file the complaint and has no known parents, grandparents, or guardians
Marriage may take place AFTER criminal proceedings have commenced, or even after conviction (extinguishes criminal action and remits penalty).
ARTICLE 345: CIVIL LIABILITY OF PERSONS GUILTY OF CRIMES AGAINST CHASTITY
Effect of Pardon: (1) Offended party cannot institute criminal proceedings if the offender has been EXPRESSLY pardoned by the offended party, or her parents, grandparents or guardian. (2) Pardon by the parent, grandparent, or guardian must be accompanied by the express pardon of the offended woman. (3) The right to file action of the parents, grandparents and guardian shall be EXCLUSIVE of other persons and shall be exercised successively in the order provided.
Those guilty of rape, seduction or abduction: (1) Indemnify the offended woman (2) Acknowledge the offspring, unless the law should prevent him from doing so (3) In every case to support the offspring, EXCEPT: (a) in cases of adultery and concubinage (b) where either of the offended party or accused is married (c) when paternity cannot be determined, such as in multiple rape 435
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(d) other instances where the law prevents such
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SPECIAL LAWS RA 9995: ANTI-PHOTO AND VIDEO VOYEURISM ACT OF 2009
The adulterer and the concubine can be sentenced only to indemnify for damages caused to the offended spouse. Acknowledgment of offsrpring is not legally possible, because only children born of parents who could marry at the time of conception may be acknowledged. Support of the offspring is also not included, because the person who gives birth is one of the offenders.
Punishable Acts Section 4. Prohibited Acts. - It is hereby prohibited and declared unlawful for any person: (e) To take photo or video coverage of a person or group of persons performing sexual act or any similar activity or to capture an image of the private area of a person/s such as the naked or undergarment clad genitals, public area, buttocks or female breast without the consent of the person/s involved and under circumstances in which the person/s has/have a reasonable expectation of privacy; (f) To copy or reproduce, or to cause to be copied or reproduced, such photo or video or recording of sexual act or any similar activity with or without consideration; (g) To sell or distribute, or cause to be sold or distributed, such photo or video or recording of sexual act, whether it be the original copy or reproduction thereof; or (h) To publish or broadcast, or cause to be published or broadcast, whether in print or broadcast media, or show or exhibit the photo or video coverage or recordings of such sexual act or any similar activity through VCD/DVD, internet, cellular phones and other similar means or device.
In rape of a married woman, only indemnity is allowed.
ARTICLE 346 – LIABILITY OF ASCENDANTS, GUARDIANS, TEACHERS AND OTHER PERSONS ENTRUSTED WITH THE CUSTODY OF THE OFFENDED PARTY (5) Persons who cooperate as accomplices but are punished as principals in rape, seduction, abduction, etc. (e) Ascendants (f) Guardians (g) Curators (h) Teachers, and (6) any other person, who cooperate as accomplice with abuse of authority or confidential relationship (7) The teachers or persons entrusted with education and guidance of the youth shall also be penalized with disqualification. (8) Any person falling within the terms of this article, and any other person guilty of corruption of minors for the benefit of another, shall be punished by special disqualification from filling the office of guardian.
See again: RA 9208: Anti-Trafficking in Persons Act of 2003: Punishable acts (supra) See again: RA 9262 Anti-Violence Against Women and Their Children Act of 2004: Punishable acts (supra)
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Title XII. Crimes against the Civil Status of Persons
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Simulation of birth Takes place when the woman pretends to be pregnant when in fact she is not, and on the day of the supposed delivery, takes the child of another as her own. The simulation of birth which is a crime is that which alters the civil status of a person.
Chapter I: Simulation of Births and Usurpation of Civil Status (1) Art 347: Simulation of births, substitution of one child for another and concealment or abandonment of a legitimate child (2) Art 348: Usurpation of civil status
The fact that the child will be benefited by the simulation of its birth is not a defense. Substitution of one child for another This is committed when a child of a couple is exchanged with a child of another couple without the knowledge of the respective parents.
Chapter II: Illegal Marriages (1) Art 349: Bigamy (2) Art 350: Marriage contracted against provisions of law (3) Art 351: Premature marriages (4) Art 352: Performance of illegal marriage ceremony
The substitution can also happen by placing a live child of a woman in place of another’s dead child. Concealing or abandoning any legitimate child Requisites: (4) The child must be legitimate (5) The offender conceals or abandons such child; and (6) The offender has the intent to cause such child to lose its civil status.
CHAPTER I: SIMULATION OF BIRTHS AND USURPATION OF CIVIL STATUS ARTICLE 347 - SIMULATION OF BIRTHS, SUBSTITUTION OF ONE CHILD FOR ANOTHER, AND CONCEALMENT OR ABANDONMENT OF A LEGITIMATE CHILD
The unlawful sale of a child by his father is not a crime under this article.
Mode 1. Simulation of births; Mode 2. Substitution of one child for another;
“Abandon” as used in Art. 347 - The practice of abandoning newly born infants and very young child at the door of hospitals and churches.
Mode 3. Concealing or abandoning any legitimate child with intent to cause such child to lose its civil status.
Art. 347
Art. 246
Offender: Any person Offender: The one who has the custody of the child
The object of the crime under Art. 347 is the creation of false, or the causing of loss of, civil status.
Purpose: To cause Purpose: To avoid the child to lose his obligation of rearing and civil status. caring for the child.
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A physician or surgeon or public officer, who cooperates in the execution of these crimes, is also liable if he acts in violation of the duties of his profession or office.
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Good faith is a defense in bigamy. Failure to exercise due diligence to ascertain the whereabouts of the first wife is bigamy through reckless imprudence.
ARTICLE 348 - USURPATION OF CIVIL STATUS
One who contracted a subsequent marriage before the declaration of presumptive death of the absent spouse is guilty of bigamy.
This crime is committed when a person represents himself to be another and assumes the filiation or the parental or conjugal rights of such another person.
The second marriage must have all the essential requisites for validity. One convicted of bigamy may also be prosecuted for concubinage as both are distinct offenses. The first is an offense against civil status, which may be prosecuted at the instance of the state; the second is an offense against chastity, and may be prosecuted only at the instance of the offended party.
Usurpation of profession may be punished under Art. 348. There must be an intent to enjoy the rights arising from the civil status of another. The purpose of defrauding the offended party or his heirs qualifies the crime.
The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense.
CHAPTER II: ILLEGAL MARRIAGES ARTICLE 349 – BIGAMY Elements: (a) Offender has been legally married; (b) The marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code (c) He contracts a second or subsequent marriage (d) The second or subsequent marriage has all the essential requisites for validity.
The second spouse is not necessarily liable for bigamy. Whether the second spouse should be included in the information is a question of fact that was to be determined by the fiscal who conducted the preliminary investigation. (People v. Nepomuceno, Jr., 64 SCRA 518)
The first marriage must be valid.
The witness who falsely vouched for the capacity of either of the contracting parties is also an accomplice.
The second husband or wife who knew of first marriage is an accomplice.
Nullity of marriage, not a defense in bigamy. The fact that the first marriage is void from the beginning is not a defense. As with voidable marriage, there must be a judicial declaration of nullity of marriage before contracting the second marriage.
Bigamy is not a private crime.
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Jurisprudence The subsequent judicial declaration of the nullity of the first marriage was immaterial because prior to the declaration of nullity, the crime had already been consummated. Moreover, petitioner's assertion would only delay the prosecution of bigamy cases considering that an accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that.
In Marbella-Bobis v. Bobis, we laid down the elements of bigamy thus: (1) The offender has been legally married; (2) The first marriage has not been legally dissolved, or in case his or her spouse is absent, the absent spouse has not been judicially declared presumptively dead; (3) He contracts a subsequent marriage; and (4) The subsequent marriage would have been valid had it not been for the existence of the first.
The outcome of the civil case for annulment of petitioner's marriage to Narcisa had no bearing upon the determination of petitioner's innocence or guilt in the criminal case for bigamy, because all that is required for the charge of bigamy to prosper is that the first marriage be subsisting at the time the second marriage is contracted. Thus, under the law, a marriage, even one which is void or voidable, shall be deemed valid until declared otherwise in a judicial proceeding.
Applying the foregoing test to the instant case, we note that the trial court found that there was no actual marriage ceremony performed between Lucio and Lucia by a solemnizing officer. Instead, what transpired was a mere signing of the marriage contract by the two, without the presence of a solemnizing officer. The first element of bigamy as a crime requires that the accused must have been legally married. But in this case, legally speaking, the petitioner was never married to Lucia Barrete. Thus, there is no first marriage to speak of.
In this case, even if petitioner eventually obtained a declaration that his first marriage was void ab initio, the point is, both the first and the second marriage were subsisting before the first marriage was annulled. [Abunado v. People (2004)]
Under the principle of retroactivity of a marriage being declared void ab initio, the two were never married “from the beginning.” The contract of marriage is null; it bears no legal effect.
A careful study of the disputed decision reveals that respondent Judge had been less than circumspect in his study of the law and jurisprudence applicable to the bigamy case. In his comment, respondent Judge stated: “That the accused married Manuel P. Diego in the honest belief that she was free to do so by virtue of the decree of divorce is a mistake of fact.”
Taking this argument to its logical conclusion, for legal purposes, petitioner was not married to Lucia at the time he contracted the marriage with Maria Jececha. The existence and the validity of the first marriage being an essential element of the crime of bigamy, it is but logical that a conviction for said offense cannot be sustained where there is no first marriage to speak of. The petitioner, must, perforce be acquitted of the instant charge. [Lucio Morigo v. People (2002)]
This Court, in People v. Bitdu, carefully distinguished between a mistake of fact, which could be a basis for the defense of good faith in a bigamy case, from a mistake of law, which 439
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does not excuse a person, even a lay person, from liability. Bitdu held that even if the accused, who had obtained a divorce under the Mohammedan custom, honestly believed that in contracting her second marriage she was not committing any violation of the law, and that she had no criminal intent, the same does not justify her act.
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solemnized by one who is not authorized to solemnize the same. Conviction of a violation of Art. 350 involves a crime of moral turpitude. (Villasanta v. Peralta)
ARTICLE 351 - PREMATURE MARRIAGE This provision has been repealed on 13 March 2015 when President Benigno Aquino III signed into law RA 10655. Said law reads: “Without prejudice to the provisions of the Family Code on paternity and filiation, Article 351 of the Revised Penal Code, punishing the crime of premature marriage committed by a woman, is hereby repealed.”
This Court further stated therein that with respect to the contention that the accused acted in good faith in contracting the second marriage, believing that she had been validly divorced from her first husband, it is sufficient to say that everyone is presumed to know the law, and the fact that one does not know that his act constitutes a violation of the law does not exempt him from the consequences thereof.
The author of RA 10655 explained that the law on premature marriages “is discriminatory for it curtails the right of a woman to marry under the stated circumstances when no such penalty is imposed on the man who does the same. Similarly, the effect of the provision is an enforced mourning period on the part of the woman although none is imposed on the man.”
Moreover, squarely applicable to the criminal case for bigamy, is People v. Schneckenburger, where it was held that the accused who secured a foreign divorce, and later remarried in the Philippines, in the belief that the foreign divorce was valid, is liable for bigamy. [Diego v. Castillo (2004)]
BEFORE REPEAL: Persons liable: (1) A widow who is married within 301 days from the date of the death of her husband, or before having delivered if she is pregnant at the time of his death; (2) A woman who, her marriage having been annulled or dissolved, married before her delivery or before the expiration of the period of 301 days after the date of the legal separation.
ARTICLE 350 - MARRIAGE CONTRACTED AGAINST PROVISIONS OF LAWS Elements: (1) Offender contracted marriage; (2) He knew at the time that – (a) The requirements of the law were not complied with; or (b) The marriage was in disregard of a legal impediment. Bigamy is a form of illegal marriage.
The purpose of the law punishing premature marriages is to prevent doubtful paternity. (People v. Rosal, 49 Phil. 509)
Illegal marriage includes also such other marriages which are performed without complying with the requirements of law, or marriages where the consent of the other is vitiated, or such marriage which was 440
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ARTICLE 352 - PERFORMANCE ILLEGAL MARRIAGE CEREMONY
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(d) The imputation must be directed at a natural or juridical person, or one who is dead; and (e) The imputation must tend to cause dishonor, discredit or contempt of the offended party.
PERSONS LIABLE: Priests or ministers of any religious denomination or sect, or civil authorities who shall perform or authorize any illegal marriage ceremony
Defamation is composed of: (1) Libel – written defamation (2) Slander- oral defamation (3) Slander by deed – defamation through acts
The offender must be authorized to solemnize marriages.
Title XIII. Crimes against Honor
Test of the defamatory character of words used: Whether they are calculated to induce the hearers to suppose and understand that the person against whom they (i.e. the defamatory words) were uttered was guilty of certain offenses; OR are sufficient to impeach his honesty, virtue or reputation, or to hold him up to public ridicule. (U.S. vs. O’Connell)
Chapter I: Libel (1) Art 353: Definition of Libel (2) Art 354: Privileged communication (3) Art 355: Libel by means of writings or similar means (4) Art 356: Threatening to publish and offer to prevent such publication for a compensation (5) Art. 357: Prohibited Publication of Acts Referred to in the course of Official Proceedings (6) Art 358: Slander (7) Art 359: Slander by Deed
First element: There must be an imputation of a crime, a vice or defect, real or imaginary, OR any act, omission, condition, status, or circumstance; Imputation of a criminal act may be implied from the acts and statements of the accused.
Chapter II: Incriminatory Machinations (1) Art 363: Incriminating innocent person (2) Art 364: Intriguing against honor
Imputation of criminal intention is not libelous. An expression of opinion by one affected by the act of another and based on actual fact is not libelous.
CHAPTER I LIBEL
Second element: The imputation must be made publicly.
ARTICLE 353 - DEFINITION OF LIBEL Elements: (a) There must be an imputation of– (1) a crime, (2) a vice or defect, real or imaginary, OR (3) any act, omission, condition, status, or circumstance; (b) The imputation must be made publicly; (c) It must be malicious;
Publication: communication of the defamatory matter to some third person or persons. There is no crime if the defamatory imputation is not published.
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Sending an unsealed libelous letter to the offended party constitutes publication. [Magno vs. People (2006)]
Fourth element: The imputation must be directed at a natural or juridical person, or one who is dead.
In libel, publication means making the defamatory matter, after it is written, known to someone other than the person against whom it has been written.
In order to maintain a libel suit, it is essential that the victim be identifiable, although it is not necessary that the person be named. It is enough if by intrinsic reference the allusion is apparent or if the publication contains matters of description or reference to facts and circumstances from which others reading the article may know the person alluded to, or if the latter is pointed out by extraneous circumstances so that those knowing such person could and did understand that he was the person referred to.
Petitioner’s subject letter-reply itself states that the same was copy furnished to all concerned. Also, petitioner had dictated the letter to his secretary. It is enough that the author of the libel complained of has communicated it to a third person. Furthermore, the letter, when found in the mailbox, was open, not contained in an envelope thus, open to public. [Buatis vs. People (2006)]
Kunkle v. Cablenews-American and Lyons laid the rule that this requirement is complied with where a third person recognized or could identify the party vilified in the article. [People vs. Ogie Diaz (2007)]
Third element: The publication must be malicious. Malice in fact – may be shown by proof of ill-will, hatred or purpose to injure.
Defamatory remarks directed at a group of persons is not actionable unless the statements are all-embracing or sufficiently specific for the victim to be identifiable.
Malice in law – presumed from a defamatory imputation. Proof of malice is not required. (Art. 354, par.1)
Libel published in different places may be taken together to establish the identification of the offended party.
But where the communication is privileged, malice is not presumed from the defamatory words.
While it is true that a publication's libelous nature depends on its scope, spirit and motive taken in their entirety, the article in question as a whole explicitly makes mention of private complainant Rivera all throughout. It cannot be said that the article was a mere general commentary on the alleged existing state of affairs at the aforementioned public market. Rivera was not only specifically pointed out several times therein but was even tagged with derogatory names. Indubitably, this namecalling was, as correctly found by the two courts
Malice in law is not necessarily inconsistent with honest or laudable purpose. Even if the publication is injurious, the presumption of malice disappears upon proof of good intentions and justifiable motive. But where malice in fact is present, justifiable motive cannot exist, and the imputations become actionable.
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below, directed at the very person of Rivera himself. [Figueroa vs. People (2006)]
ARTICLE 354 - REQUIREMENT FOR PUBLICITY
Fifth element: The imputation must tend to cause dishonor, discredit or contempt of the offended party.
General rule: MALICE IS PRESUMED in every defamatory imputation, even if it be true, if no good intention and justifiable motive for making it is shown.
Dishonor – disgrace, shame or ignominy Discredit – loss of credit of reputation; disesteem Contempt – state of being despised
Exceptions: In privileged communications, namely: (1) A private communication made by any person to another in the performance of any legal, moral, or social duty; (2) A fair and true report, made in good faith, without any comments or remarks, of (a) any judicial, legislative or other official proceedings which are not of confidential nature, OR (b) any statement, report or speech delivered in said proceedings, OR (c) any other act performed by public officers in the exercise of their functions.
For a statement to be considered malicious, it must be shown that it was written or published with the knowledge that they are false OR in reckless disregard of WON they were false. Reckless disregard – the defendant entertains serious doubt as to the truth of the publication, OR that he possesses a high degree of awareness of their probable falsity. To avoid self-censorship that would necessarily accompany strict liability for erroneous statements, rules governing liability for injury to reputation are required to allow an adequate margin of error by protecting some inaccuracies. [Borjal v. CA (1999)]
Defamatory remarks are PRESUMED malicious. The presumption of malice is REBUTTED, if it is shown by the accused that – (see discussion of Art. 361) (1) The defamatory imputation is true, IN CASE the law allows proof of the truth of the imputation; (2) It is published with good intention; AND (3) There is justifiable motive for making it
Fine preferred penalty in libel cases Administrative Circular No. 08-2008 stated the rule of preference of fine only rather than imprisonment in libel cases, having in mind the ff. principles: 1) The circular does not remove imprisonment as an alternative penalty 2) Judges may, in the exercise of their discretion, determine whether the imposition of fine alone would best serve the interest of justice. 3) Should only a fine be imposed and the accused unable to pay the fine, there is no legal obstacle to the application of the RPC on subsidiary imprisonment.
Privileged communication is NOT PRESUMED malicious. Kinds of Privilege:
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NOT actionable. Narrow and few: (1) Privileged speeches in Congress (2) Statements made in judicial proceedings as
Actionable IF Malice or Bad faith is proven (malice in fact) Based on par 1 and 2
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The rule is that a communication loses its privileged character and is actionable on proof of actual malice.
long as they are relevant of Art 354, although to the issue the list is not (3) Military affairs exclusive
That the statement is a privileged communication is a matter of defense. To overcome the defense of privileged communication under par. 1 of Art. 354, it must be shown that: 1) The defendant acted with malice in fact; or 2) There is no reasonable ground for believing the charge to be true.
Art 354 does not cover absolute privilege because character of communications mentioned therein is lost upon proof of malice in fact. MALICE IN LAW
MALICE IN FACT
Presumed from To be proved by defamatory character of prosecution ONLY IF statement malice in law has been rebutted Statement is presented to court, and the latter will decide whether it is defamatory or not
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Fair and true report of official proceedings Official proceedings refer to proceedings of the 3 branches of the government: judiciary, legislative, and executive.
Can be negated by evidence of: (1) Good motives AND Justifiable ends; or (2) Privileged character
Requisites: (1) That it is a fair and true report of a judicial, legislative, or other official proceedings which are not confidential in nature, or of a statement, report, or speech delivered in said proceedings, or of any other act performed by a public officer in the exercise of his functions. (2) That it is made in good faith; and (3) That it is without comments or remarks
Requisites of privileged communication under par. 1 of art. 354: (1) That the person who made the communication had a legal, moral or social duty to make the communication, or, at least, he had an interest to be upheld; (2) That the communication is addressed to an officer or board, or superior, having some interest or duty in the matter. (3) That the statements in the communication are made in good faith without malice in fact.
The communication must be pertinent and material to the subject matter. Doctrine of fair comment: Fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander.
Applying to the wrong person due to honest mistake does not take the case out of privilege. (US v. Bustos)
In order that a discreditable imputation to a public official may be actionable, it must either be: (1) A false allegation of fact; OR (2) A comment based on a false supposition. [People v. Velasco (2000)]
Unnecessary publicity destroys good faith. The privileged character simply does away with the presumption of malice.
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ARTICLE 356 - THREATENING TO PUBLISH AND OFFER TO PREVENT SUCH PUBLICATION FOR A COMPENSATION
PUBLIC FIGURE – one who, by his accomplishments, fame, mode of living, OR by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs and his character, has become a “public personage” [Ayer Productions v. Capulong (1988)]
Acts Punished: (1) Threatening another to publish a libel concerning – him, his parents, spouse, child or other members of his family (2) Offering to prevent the publication of such libel for compensation or money consideration.
Based on the ruling in US v. Ocampo, proof of knowledge of and participation in the publication of the offending article is not required, if the accused has been specifically identified as “author, editor, or proprietor” or “printer/publisher” of the publication.
The essence of this crime is blackmail, which is defined as any unlawful extortion of money by threats of accusation or exposure.
ARTICLE 355 - LIBEL BY WRITING OR SIMILAR MEANS
Blackmail can also be in the form of light threats, which is punished under ARTICLE 283.
Libel may be committed by means of: (1) Writing; (2) Printing; (3) Lithography; (4) Engraving; (5) Radio; (6) Photograph; (7) Painting; (8) Theatrical exhibition; (9) Cinematographic exhibition; or (10) Any similar means. (e.g. video broadcast)
ARTICLE 357 - PROHIBITED PUBLICATION OF ACTS REFERRED TO IN THE COURSE OF OFFICIAL PROCEEDINGS (GAG LAW) Elements: (a) Offender is a reporter, editor or manager of a newspaper, daily or magazine; (b) He publishes facts connected with the private life of another; (c) Such facts are offensive to the honor, virtue and reputation of said person.
Common characteristic of written libel: their permanent nature as a means of publication.
Requisites of violation: (1) That the article published contains facts connected with the private life of an individual; and (2) That such facts are offensive to the honor, virtue and reputation of said person.
Use of amplifier system is not libel but oral defamation (slander). But the defamation made in the television program is libel.
This article is referred to as the Gag Law. Prohibition applies even if the facts are involved in official proceedings.
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Newspaper reports on cases pertaining to adultery, divorce, legitimacy of children, etc. are barred from publication.
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considered view that the slander committed by petitioner can be characterized as slight slander following the doctrine that: uttering defamatory words in the heat of anger, with some provocation on the part of the offended party, constitutes only a light felony. [Villanueva vs. People (2006)]
Under RA 1477, a newspaper reporter cannot be compelled to reveal the source of the news report he made, UNLESS the court or a House or committee of Congress finds that such revelation is demanded by the security of the state.
(3) The word “putang ina mo” is a common expression in the dialect that is often employed not really to slander but rather to express anger or displeasure. It is seldom, if ever taken in its literal sense by the hearer, that is, as a reflection on the virtue of a mother. [Reyes vs. People]
ARTICLE 358 - SLANDER Slander, or oral defamation is composed of two kinds: (1) Simple slander (2) Grave slander, when it is of serious and insulting nature
The slander need not be heard by the offended party.
Factors that determine the gravity of the oral defamation: (1) Expressions used (2) Personal relations of the accused and the offended party. (3) The surrounding circumstances.
ARTICLE 359 - SLANDER BY DEED Elements (a) Offender performs any act not included in any other crime against honor; (b) Such act is performed in the presence of other person/s; and (c) Such act casts dishonor, discredit or contempt upon the offended party.
Illustration of grave slander: A woman of violent temper hurled at a respectable married lady with young daughters offensive and scurrilous epithets including words imputing unchastity to the mother and tending to injure the character of the daughters [U.S. vs. Toloso]
Slander by deed is a crime against honor which is committed by performing any act which casts dishonor, discredit, or contempt upon another person.
Illustration of simple slander: (1) Calling a person a gangster (2) Uttering defamatory words in the heat of anger with some provocation on the part of the offended party
Slander by deed is of two kinds (1) Simple slander by deed (2) Grave slander by deed There is no fixed standard in determining whether a slander is serious or not; hence the courts have sufficient discretion to determine the same, basing the finding on the attendant circumstances and matters relevant thereto.
The Court does not condone the vilification or use of scurrilous language on the part of petitioner, but following the rule that all possible circumstances favorable to the accused must be taken in his favor, it is our 446
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Slapping the face of another is slander by deed if the intention of the accused is to cause shame or humiliation.
Lack of participation in the preparation of libelous articles does not shield the persons responsible from liability.
Fighting the offended party with intention to insult him is slander by deed.
Under Republic Act 8792, otherwise known as the Electronic Commerce Act, a party or person acting as a service provider incurs NO civil or criminal liability in the making, publication, dissemination or distribution of libelous material if: (1) The service provider does not have actual knowledge, or is not aware of the facts or circumstances from which it is apparent that making, publication, dissemination or distribution of such material is unlawful or infringes any rights; (2) The service provider does not knowingly receive a financial benefit directly attributable to the infringing activity; (3) The service provider does: (a) not directly commit any infringement or other unlawful act and (b) does not induce or cause another person or party to commit any infringement or other unlawful act (c) and/or does not benefit financially from the infringing activity or unlawful act of another person or party (Section 30, in relation to Section 5, ECommerce Law).
Pointing a dirty finger constitutes simple slander by deed. Slander by deed and acts of lasciviousness – distinguished by presence of lewd designs. If such is present, it is an act of lasciviousness. Slander by deed and maltreatment – the nature and effect of maltreatment determines the crime committed. If the offended party suffered from shame or humiliation caused by the maltreatment, it is slander by deed. Slander by deed and unjust vexation – If it merely annoys and irritates, without any other concurring factor, it is unjust vexation. If the irritation or annoyance was attended by publicity and dishonor, it is slander by deed.
ARTICLE 360 - PERSONS RESPONSIBLE FOR LIBEL (1) The person who publishes, exhibits or causes the publication or exhibition of any defamation in writing or similar means. (2) The author or editor of a book or pamphlet. (3) The editor or business manager of a daily newspaper, magazine or serial publication. (4) The owner of the printing plant which publishes a libelous article with his consent and all other persons who in any way participate in or have connection with its publication.
Where to file the criminal action? It depends on who the offended party is. If he is a public officer, the criminal action can only be instituted in either: (1) RTC of the province or city where the libelous article is printed and first published, OR (2) RTC of the province or city where he held office at the time of the commission of the offense
Liability of the editor is the same as that of the author.
If he is a private person, the criminal action may be brought in: 447
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(3) RTC of the province or city where the libelous article is printed and first published, OR (4) RTC of the province or city where he actually resided at the time of the commission of the offense
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Rule of actual malice [or malice in fact]: Even if the defamatory statement is false, NO liability can attach IF it relates to official conduct, UNLESS the public official concerned proves that the statement was made with actual malice, i.e., with knowledge that it was false or with reckless disregard of WON it was false.
In order to obviate controversies as to the venue of the criminal action for written defamation, the complaint or information should contain allegations as to whether, at the time the offense was committed, the offended party was a public officer or a private individual and where he was actually residing at that time.
That the publication of the article was an honest mistake is not a complete defense but serves only to mitigate damages where article is libelous per se. Libel against a public official An open letter addressed to the stockholders of OPMC was the subject of a full-page advertisement published in 5 major daily newspapers. Coyiuto, Jr., wrote in his capacity as Chairman of the Board and President of OPMC, that there was a sweetheart deal between Commissioner Mario Jalandoni of the PCGG and Rizal Commercial Banking Corp. (RCBC) to the prejudice of the Government.
Whenever possible, the place where the written defamation was printed and first published should likewise be alleged. That allegation would be a sine qua non if the circumstance as to where the libel was printed and first published is used as the basis of the venue of the action. [Macasaet v. People (2005)] Civil and criminal action must be filed with the same court.
In the recent case of Vasquez v. Court of Appeals, et. al., the Court ruled that: "The question is whether from the fact that the statements were defamatory, malice can be presumed so that it was incumbent upon petitioner to overcome such presumption. Under Art. 361 of the Revised Penal Code, if the defamatory statement is made against a public official with respect to the discharge of his official duties and functions and the truth of the allegation is shown, the accused will be entitled to an acquittal even though he does not prove that the imputation was published with good motives and for justifiable ends."
Offended party must file the complaint for defamation imputing a crime which cannot be prosecuted de officio. Libel imputing a vice or defect, not being an imputation of a crime, is always prosecuted upon information signed and filed by the fiscal.
ARTICLE 361 - PROOF OF TRUTH When admissible? (1) When the act or omission imputed constitutes a crime regardless of whether the offended party is a private individual or a public officer. (2) When the offended party is a Government employee, even if the imputation does not constitute a crime, provided it is related to the discharge of his official duties.
Moreover, the Court has ruled in a plethora of cases that in libel cases against public officials which relate to official conduct liability will attach only if the public official concerned 448
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ARTICLE 362 - LIBELOUS REMARKS
proves that the statement was made with actual malice, that is, with knowledge that it was false.
(1) Libelous remarks or comments (2) connected with the matter privileged under the provisions of Art. 354, (3) if made with malice, (4) shall NOT exempt the author thereof nor the editor or managing editor of a newspaper from criminal liability.
Imputations regarding official conduct do not carry the presumption of malice, hence even if the defamatory statement is false, if malice was not proven, there is no libel. Here petitioner failed to prove actual malice on the part of the private respondents. Nor was the Court of the opinion that the open letter was written to cast aspersion on the good name of the petitioner.
Libelous remarks or comments on matters privileged, if made with malice in fact, do not exempt the author and editor.
The paid advertisement merely served as a vehicle to inform the stockholders of the goingson in the business world and only exposed the irregularities surrounding the PCGG and RCBC deal and the parties involved. [Mario C.V Jalandoni v Secretary of Justice (2000)]
CHAPTER II: MACHINATIONS ARTICLE 363 INNOCENT PERSON
Truth is a legitimate defense but only under the condition that the accused has been prompted in making the statement by good motives and for justifiable ends. [Disini v. Secretary of Justice (2014)]
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Elements: (1) Offender performs an act (2) By such an act, he incriminates or imputes to an innocent person the commision of a crime (3) Such act does not constitute perjury.
There must be sufficient evidence to permit the conclusion that the accused in fact entertained serious doubts as to the truth of the statement he published. Gross/extreme negligence is not sufficient to establish actual malice. The prosecution bears the burden of proving the presence of actual malice in instances where such element is required to establish guilt. The defense of absence of actual malice, even when the statement turns out to be false, is available where the offended party is a public official or public figure. Malice is presumed, however, when the offended party is a private individual. The law presumes its existence (RPC Art 354) and the accused has the burden of proof to show that he has a justifiable reason for the defamatory statement. 449
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The source of the defamatory utterance is unknown and the offender simply repeats or passes the same to blemish the honor or reputation of another
Offender made the utterance, where the source of the defamatory nature of the utterance is known, and offender makes a republication thereof
Offender performs an act by which he directly incriminates or imputes to an innocent person the commission of a crime
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As far as this crime is concerned, this has been interpreted to be possible only in the so-called planting of evidence. If this act is resorted to, to enable officers to arrest the subject, the crime is unlawful arrest through incriminating innocent persons.
Administrative Circular 08-2008 Re: Guidelines in the Observance of a Rule of Preference in the Imposition of Penalties in Libel Cases (1) This Administrative Circular does not remove imprisonment as an alternative penalty for the crime libel under Article 355 of the RPC (2) The Judges concerned may, in the exercise of sound discretion, and taking into consideration the peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve the interests of justice or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperative of justice; (3) Should only a fine be imposed and the accused be unable to pay the fine, there is no legal obstacle to the application of the RPC provision on subsidiary imprisonment.
This crime cannot be committed through verbal incriminatory statements.
PERJURY BY DEFAMATION INCRIMINATING MAKING INNOCENT FALSE PERSON ACCUSATIONS Act of planting evidence and the like in order to incriminate an innocent person
Giving of false statement under oath or making a false affidavit, imputing to the person the commission of a crime
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Public and malicious imputation calculated to cause dishonor, discredit, or contempt upon the offended party
Title XIV. Quasi-Offenses Article 365 - Imprudence and Negligence
ARTICLE 364 - INTRIGUING AGAINST HONOR
Quasi-offenses punished: (1) Committing through reckless imprudence any act which, had it been intentional, would constitute a grave or less grave felony or light felony; (2) Committing through simple imprudence or negligence an act which would otherwise constitute a grave or a less serious felony; (3) Causing damage to the property of another through reckless imprudence or simple imprudence or negligence; (4) Causing through simple imprudence or negligence some wrong which, if done maliciously, would have constituted a light felony.
Elements: (c) Offender disseminates any intrigue (d) Its principal purpose is to blemish the honor or reputation of a person. Intriguing against honor is referred to as gossiping: the offender, without ascertaining the truth of a defamatory utterance, repeats the same and pass it on to another, to the damage of the offended party
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IMPRUDENCE
NEGLIGENCE
Lack of skill Deficiency of action
Lack of foresight Deficiency of perception
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(e) There is inexcusable lack of precaution on the part of the offender, taking into consideration: (1) His employment/occupation (2) Physical condition (3) Degree of intelligence (4) Other circumstances regarding the persons, time and place
Failure in precaution Failure in advertence Imprudence or negligence is not a crime itself; it is simply a way of committing a crime. It becomes punishable only when it results in a crime.
NOTE: (1) Reckless Imprudence Resulting Homicide (2) Resulting in Physical Injuries
The rules for graduating penalties (under Art. 64) based on mitigating and aggravating circumstances are NOT applicable to offenses punishable thru criminal negligence.
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Inexcusable lack of precaution Factors to be considered in determining inexcusable lack of precaution: (1) Employment or occupation (2) Degree of intelligence and physical condition of the offender; and (3) Other circumstances regarding persons, time, and place.
QUALIFYING CIRCUMSTANCE: failure to render immediate assistance to the injured party. This qualifying circumstance must be distinguished from the punishable OMISSION under Article 275. If the danger that may result from the criminal negligence is clearly perceivable, the imprudence is reckless. If it could hardly be perceived, the criminal negligence would only be SIMPLE.
Force majeure is an event which cannot be foreseen, or which being foreseen is inevitable; it implies an extraordinary circumstance independent of the will of the actor.
Criminal negligence is only a modality in incurring criminal liability. This is so because under Article 3, a felony may result from dolo or culpa. THEREFORE, even if there are several results arising from ONLY ONE CARELESSNESS, the accused may only be prosecuted under one count for the criminal negligence. Otherwise, double jeopardy would arise.
Once malice is proven, recklessness disappears. [People v. Agliday (2001)}
Elements of Reckless Imprudence: (a) The offender does or fails to do an act (b) The doing of or the failure to do the act is voluntary (c) It is without malice (d) Material damage results
Test of negligence: Would a prudent man, in the position of the person to whom negligence is attributed, foresee harm as a result of the course actually pursued? If so, it was the duty of the actor to refrain from that course or to take precautions against its mischievous results, and the failure to do so constitutes negligence.
Elements of Simple Imprudence (c) There is lack of precaution on the part of the offender (d) The damage impending to be caused is not immediate or the danger is not clearly manifest.
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Doctrine of last clear chance The contributory negligence of the party injured will not defeat the action if it be shown that the accused might, by exercise of reasonable care and prudence, have avoided the consequences of the negligence of the injured party.
The measure of the damage should be the difference in value of property immediately before the incident and immediately after the repair. Art. 64 relative to mitigating and aggravating circumstances is not applicable to crimes committed through negligence.
Emergency rule An automobile driver who, by negligence of another and not by his own negligence, is suddenly placed in an emergency and compelled to act instantly to avoid collision or injury is not guilty of negligence if he makes such a choice which a person of ordinary prudence placed in such situation might make even though he did not make the wisest choice.
The penalties provided in Art. 365 are not applicable in the ff. cases: (1) When the penalty provided for the offense is equal to or lower than those provided in the first two paragraphs of Art. 365, in which case the courts shall impose the penalty next lower in degree that that which should be imposed, in the period which they may deem proper to apply. (2) When, by imprudence or negligence and with violation of the Automobile Law, the death of a person shall be caused, in which case the defendant shall be punished by prision correccional in its medium and maximum periods.
One who suddenly finds himself in a place of danger, and is required to act without time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence, if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence. [Gan v. CA (1988)]
When death or serious bodily injury to any person has resulted, the motor vehicle driver at fault shall be punished under the Penal Code.
Violation of a rule or regulation or law is proof of negligence. But negligence cannot be predicated upon the mere fact of minority or lack of an operator’s license.
Contributory negligence is not a defense. It only mitigates criminal liability.
The penalty next higher in degree is imposed if the offender fails to lend on the spot to the injured parties such help as may be in his hands to give.
Sec. 59 of Act 3992 (Revised Motor Vehicle Law) gives the right of way to the driver coming from the right of another, when both are travelling on intersecting streets of the same class. The grant of right of way does not relieve the motorist from the duty of keeping a lookout for motorists entering the intersection from his left or right.
Carillo v. People (1994): The gravamen of SIMPLE NEGLIGENCE is the failure to exercise the diligence necessitated or called for by the situation which was NOT immediately lifedestructive BUT which culminated, as in the present case, in the death of a human being 3 days later. 452
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was consented to by the victim's parents. With the permission of the victim's parents, accusedappellant Carmen, together with the other accused-appellants, proceeded to subject the boy to a "treatment" calculated to drive the "bad spirit" from the boy's body. Unfortunately, the strange procedure resulted in the death of the boy. Thus, accused-appellants had no criminal intent to kill the boy.
Medical malpractice, which is a form of negligence, consists in the failure of a physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions, and in like surrounding circumstances. [Garcia-Rueda v. Pascasio (1997)] Res ipsa loquitur – the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiff’s prima facie case, and present a question of fact for the defendant to meet with an explanation. [Ramos v. CA (1999)]
Their liability arises from their reckless imprudence because they ought that to know their actions would not bring about the cure. They are, therefore, guilty of reckless imprudence resulting in homicide and not of murder. Art. 365 of the Revised Penal Code, as amended, states that reckless imprudence consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing such act.
Requisites for the application of res ipsa loquitur (1) The accident was of a kind which does NOT ordinarily occur UNLESS someone is negligent; (2) The instrumentality or agency which caused the injury was under the exclusive control of the person in charge; and (3) The injury suffered must NOT have been due to any voluntary action or contribution of the person injured.
Compared to intentional felonies, such as homicide or murder, what takes the place of the element of malice or intention to commit a wrong or evil i: the failure of the offender to take precautions due to lack of skill taking into account his employment, or occupation, degree of intelligence, physical condition, and other circumstances regarding persons, time and place.
Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. HOWEVER, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are observable by any one may be given by nonexpert witnesses. [Reyes v. Sis. of Mercy Hospital (2000)]
The elements of reckless imprudence are apparent in the acts done by accusedappellants which, because of their lack of medical skill in treating the victim of his alleged ailment, resulted in the latter's death. As already stated, accused-appellants, none of whom is a medical practitioner, belong to a religious group, known as the Missionaries of Our Lady of Fatima, which is engaged in faith healing.
Illustration: People v. Carmen (2001): It would appear that accused-appellants are members of a cult and that the bizarre ritual performed over the victim 453
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Ivler v. Modesto-San Pedro (2010): The accused got involved in a car accident for which he was charged with two separate offenses (RI resulting to slight physical injuries and RI resulting to homicide and damage to property). He was convicted of the first offense and he wanted the second information quashed on the ground of double jeopardy. The Court held that the Reckless Imprudence is a single crime and the consequences on persons and property are material only to determine the penalty. The conviction or acquittal of such quasi-offense bars subsequent prosecution for the same quasi-offense, regardless of its various resulting acts. The law penalizes the negligent act and not its result. Rafael Reyes Trucking v. People (2000): Much of the confusion has arisen from the common use of such descriptive phrase as 'homicide through reckless imprudence', and the like; when the strict technical sense is, more accurately, 'reckless imprudence resulting in homicide'; or 'simple imprudence causing damages to property'."
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