Criminal Law 2 - Amurao Notes

CRIMINAL LAW II BLOCK 1-K AY 2011-2012

RECITATION AND LECTURE NOTES FROM THE CLASSES OF PROFESSOR MAXIMO AMURAO SAN BEDA COLLEGE OF LAW MENDIOLA, MANILA

In Loving Memory of Marvin ‘Marvs’ P. Reglos – Block mate, Brother and Friend

CRIMINAL LAW II 2 K notes

ART. 114 TREASON Q: who may commit treason? Filipinos and aliens residing within the country Q: if the offender is a Filipino Citizen, where may he commit treason? Anywhere Q: So Filipinos who commit treason abroad may be held criminally liable under Philippine laws? Yes Q: Does this not violate the principle of territoriality? It does Q: What is the principle of territoriality? The penal laws of a State extend only as far as its territory Philippine penal laws punish crimes committed only within Philippine territory Q: Is there a conflict between the principle of territoriality and the fact that a Filipino who commits treason abroad may be liable under Philippine laws? Yes, there is. Q: How would you then resolve the conflict? State your legal bases. 1. Under par.5, art.2 of the RPC, treason is a crime against national security. It falls within the exceptions to the doctrine of territoriality. 2. Art.114 uses the phrase ‘Any Filipino citizen who levies war against the Philippines or adheres to her enemies, giving them aid and comfort within the Philippines or elsewhere’ Q: What’s the principle behind the fact that a Filipino Citizen, as opposed to an alien, may be held liable for treason even if he happens to commit it outside Philippine shores? 1. Because treason is a crime against national security and the State 2. and his CITIZENSHIP requires him to owe permanent allegiance to his State Q: As far as the alien is concerned, where may he commit treason? Only within the Philippines Q: Why is that? Because the ‘Treason’ he commits is treason against the host state, and he may only commit it during his actual residence within that state.

Q: What do you mean by ‘temporary’? He only owes it to the state during his actual residence there, in return for the protection he receives from the state. Q: How long does he (the alien) have to stay in the Philippines in order to be held liable for the Commission of treason? Any length of time would suffice for the liability to attach. Q: Even if he stays for only a day and commits treason within that day? Yes, even then. Q: But doesn’t ‘residence’ entail a longer period of time?

HIRYU KIMIKO OKUBO

Q: Doesn’t an alien residing in the Philippines owe the state his allegiance, too? Yes, he does. But the allegiance he owes to the state is temporary.

CRIMINAL LAW II 3 K notes Not in this case. ‘Residence’ as contemplated by the provision on treason is not synonymous to ‘residence’ contemplated by civil law. The alien may be held liable even if his ‘residence’ within the country is only for a day. *NB: ‘residence’ here does not connote any definite length of time. The raison de etre of the law is to make any alien who betrays the state liable. Theoretically, even if he stays for an hour, and commits treason within that hour, he may still be held liable. What is meant by ‘residence’ is the stay of the alien within the country, during which stay he shares our resources, and the protection afforded to us by the State. Q: What if the alien was a former Japanese citizen when he committed treason, and then he becomes Naturalized. May he still be held liable? Yes. Q: How is treason committed? 1. By levying war against the government 2. By adhering to her (the Philippines’) enemies, giving them aid and comfort Q: Treason in the first mode (Levying war). How is this committed? Through the assembling of persons for the purpose of delivering the government to a foreign country Q: What are the elements of committing treason by levying war against the government? 1. There is an assembling of persons 2. The purpose is to execute a treasonable design against the government Q: In levying war, should there be an actual military encounter with the government forces? Not necessarily. The mere assembly of persons for the purpose of executing a treasonable design is already made punishable. Q: Can this be committed by a single person? No. The law speaks of ‘men’. There is a presupposition of the plurality of offenders. Q: Is it necessary that this assembly of men be armed? No, the law does not qualify. Q: Supposing the Philippine government was at war with Japan. We were all unarmed inside this classroom and were discussing ways and means of effectively delivering the government into the hands of a foreign power. May we be held liable for treason? Yes. There is compliance with all the elements of levying war against the government.

Q: What do you mean by ‘adhere’? Favouring the enemy either mentally, psychologically, or emotionally. Q: If that’s the case, then you mean that mere adherence – the favouring of the enemy mentally – is punishable? No. Mere mental adherence is not punishable. The adherence has to be coupled with a physical, overt act. Adherence is qualified by the phrase ‘giving them aid and comfort’. Q: What do you mean by ‘giving them aid’? The act of strengthening or aiding to strengthen the enemy The act of weakening or aiding to weaken the Philippines *NB: note the bipolar consequence. You aid the enemy, you weaken our defence.

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Q: Treason in the 2nd mode (adhering to the enemies and giving them aid and comfort), does the ‘adherence’ have to be a physical act? Yes, it does.


Q: Supposing that during the Japanese occupation, certain Filipinos were moving around, convincing the people that the principles of the Japanese government were better than those of the Philippines. Is this treasonous? No. There is only adherence in this case. Adherence and giving aid or comfort must concur to consummate the crime of treason in the second mode. Q: Supposing during that same occupation you were a merchant engaged in the selling of weapons. You had transactions with the Japanese involving those weapons. Is this treasonous? Yes. Arming them augments their capability for war and is analogous to adhering to them and giving them aid or comfort. Q: How is ‘adherence’ proven? It may be implied by the nature of the act. Q: Suppose that you were engaged in the transportation business. Japanese hired your buses to transport their troops to another province. Are you liable? Yes. The act directly strengthens the enemy. Q: Suppose you were a rice dealer and the Japanese bought rice from you. Are you liable? No. The purpose here is purely commercial. *NB: unless I exclusively supply it to them. Q: Why not? Won’t the selling of rice to them operate to strengthen them? It will, but there is no adherence on my part. Aid or comfort must be extended to the enemies in their capacity as enemies, not as regular or paying customers or individuals. Q: And if you were supplying the Japanese troops with comfort women? I will not be liable. This does not aid them in war. Q: Supposing you performed an act of duty in favour of the enemy government (i.e.: serving as an official under their regime), will you be liable? It depends. If the position is a highly-responsible one (think: policy-determining), I am liable. If the duty contemplated is purely a ministerial one, I am not liable. Q: In the prosecution for treason, what is necessary to secure a conviction? 1. The testimony of AT LEAST TWO witnesses to the SAME overt act or 2. The confession of the accused of his guilt in the commission of the crime

*NB: If you present 2 witnesses, but only one is believed, there is no compliance. The two requirements must concur. Q: Is it necessary that those 2 witnesses testify to the same overt act? Yes Q: Why? (Ah, the killer question. 3 rounds of shotgun recits for us here, mates. Be careful) Because… 1. The law requires it 2. The seriousness of the offense of treason and its corresponding afflictive penalties need to be proven by evidence greater than proof beyond reasonable doubt. 3. The crime of treason is a continuing crime composed of many acts 4. Treason is committed in time of war and under abnormal circumstances 5. To prevent to miscarriage of justice

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Q: How is compliance with the with the 2-witness rule achieved? 1. By the presentation of at least 2 witnesses who testify to the same overt act AND 2. These 2 witnesses’ testimonies must be lent credence by the court


Q: You mean to say ‘proof beyond reasonable doubt’ is not enough? Yes, it isn’t enough. There must be compliance with the 2-witness rule. *NB: Treason is the only crime where proof beyond reasonable is not sufficient. Q: Is a plea of ‘guilty’ mitigating in treason? Yes, it is. Q: When should this plea be made? During Arraignment, for it to be mitigating under Article 13, par.7 *NB: During arraignment, the contents of the information are read to the accused in a language Or dialect known to him. He is asked whether or not he understands the charges levied against Him, then he is asked how he pleads: guilty or not guilty. THIS is the ‘confession of guilt’ contemplated by Art.13, par.7 Q: What is the legal effect of a plea of guilty? It serves as an admission by the accused of the veracity of ALL the facts and charges alleged in the information Q: If the accused pleads guilty, does the prosecution still need to present evidence against him to prove his culpability? Not anymore Q: What about the defence? What proof may it present, assuming the accused pleads guilty? The defence may present evidence to mitigate or justify the act. *NB: this is known as a reverse trial. Defence presents evidence of mitigation, Prosecution refutes the evidence of the defence. Q: If during arraignment, the accused is asked if he understands the charges read to him and he says no, what should the court do? Exert effort to make him understand (think: translators, sign language experts etc.) Q: And if after those efforts, he still does not understand, may the court proceed with trial? No. *NB: to proceed at this stage would violate the accused’s constitutional right to be informed of the nature and cause of the accusations against him. (Btw this may sound ridiculous, but there you have it.)

Q: Does the two-witness rule apply in proving adherence? No. Adherence may be proved by the testimony of only one witness. NOTES: *Treason, definition: a breach of allegiance to the government, committed by a person who owes allegiance to it. *Allegiance: the obligation of fidelity and obedience owed by a citizen to his state, and the alien to the host state. It may be permanent or temporary.

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Q: If the accused pleads guilty at another time, will it still be considered mitigating? Not anymore. The plea of guilty must be done in open court before the prosecution presents its Evidence

CRIMINAL LAW II 6 K notes *The following circumstances are inherent in treason and are therefore not aggravating: evident premeditation, abuse of superior strength and treachery. *Treason is a war crime. It cannot be committed during times of peace. It is, however, not necessary that there be a formal declaration of war. *Treason cannot be proved by circumstantial evidence or by extra-judicial confessions *There is no such thing as ‘attempted treason’. The mere attempt to commit it is punishable. *Treason absorbs other common crimes committed in furtherance of its goals. It may not be complexed with them.

ART. 115 CONSPIRACY AND PROPOSAL TO COMMIT TREASON Q: What are the elements? a. In the time of war b. 2 or more persons come to an agreement to – 1. Levy war against the government 2. Adhere to the enemies and give them aid or comfort c. They decide to commit it Q: Can a foreigner be held liable for conspiracy or proposal to commit treason? Yes. Q: Elements of Proposal to commit treason a. In time of war b. A person who has decided to levy war against the government, or to adhere to the enemies to give them aid and comfort proposes its execution to some other person/s NOTES: *Mere agreement and decision to commit ~ consummates the crime *Mere proposal, even without acceptance, is punishable too. If the other person accepts, the crime is already conspiracy to commit treason.

Q: Does mere silence make a person criminally liable? Generally, No. Q: Are there any exceptions to the rule? Yes. When the law specifically provides. Q: Why then is failure to disclose knowledge of a conspiracy to commit treason punishable? 1. Because the very existence of the state itself threatened 2. Because conspiracy to commit treason is mired in secrecy, hence the need for disclosure (and a mechanism to ensure disclosure). Q: Why is there no punishment for failure to disclose knowledge of actual treason? Because in full blown treason, the overt acts are plain for the government to see.

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ART. 116 MISPRISION OF TREASON

CRIMINAL LAW II 7 K notes Q: Will the two-witness rule apply to the prosecution of this crime? No. This is a distinct offence from that of reason. Q: May a foreigner be held liable for misprision of treason? No. The offender must be a Filipino citizen owing full and permanent allegiance to the Republic. Q: Does this violate the principle of generality? Yes, it does. Q: What is the principle of generality? All persons within a state’s criminal jurisdiction are equally liable for acts committed against That state’s laws. Q: How then would you resolve the conflict? The principle of generality has certain exceptions: 1. Treaties 2. The law of nations (international law) 3. Express provisions to this effect in our own laws Q: What is concealed in misprision in treason? Knowledge of the conspiracy to commit treason Q: Who are the authorities to whom this knowledge should be disclosed? Mayors, Judges, City Fiscals/Prosecutors Q: Supposing you have knowledge of a conspiracy to commit treason. You did not disclose it to the authorities because to your mind, they are all corrupt. You disclosed the information instead to the Chief of Staff. Are you liable? No. There is no intention to keep the secret. No criminal intent Q: How soon should the disclosure be made? Within a reasonable period. The actual time depends on the sound discretion of the court. Q: The accused is prosecuted for MT, it was alleged in the information that, being a Filipino citizen, he owed permanent allegiance to the Philippines and yet, having knowledge of persons who were armed and who performed acts with the view of overthrowing the government, he did not disclose the same. May he be held liable? No. The knowledge he had was knowledge of full-blown treason already, and not a mere conspiracy.

NOTES: *Art.116 does not apply when the crime of treason is already committed because Art.116 speaks of ‘knowledge of conspiracy against… xxx’ *The offender in Art.116 is punished as an accessory (penalty: 2 degrees lower than that for principals in treason), although he is a principal in the crime of misprision of treason. *Art.116 is an exception to the rule that mere silence does not make a person criminally liable.

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Q: The accused is a resident of a city, has knowledge of a conspiracy to commit treason, but refused to disclose the same to the proper authorities because they are among the most corrupt. He disclosed his knowledge to the AFP. Is he liable? No. There was no intent to NOT disclose the information he had.


Art. 117 ESPIONAGE Q: How is this committed? 1. By entering without authority therefor, any 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; or 2. By disclosing to the representatives of a foreign nation the contents of the articles, data, or information referred to in par.1, art.117, which the offender had in his possession by reason of the public office he holds Q: Under the 1st mode of commission, who may be held liable? Any person Q: You mean to say that in this first manner of commission, liability is not conditioned by citizenship? Yes Q: When is the crime consummated? When the offender has entered any of the enumerated places in par.1, art.117 and has taken the articles, data or information with intent to gain the same Q: Is it necessary that the offender possess intent to gain? Yes, intent is necessary. Refer to the phrasing: ‘for the purpose of… xxx’. Q: Is it necessary that he succeeds? No, it isn’t. Mere entrance with purpose to obtain classified information is enough for liability to attach Q: Supposing the US donated armaments, etc. to the RP for us to use against Malaysia. These arms were stored in a warehouse in Nueva Ecija. A newspaper reporter, without permission from the government, entered the place in order to take pictures. On his way out, he was apprehended. Is he liable? Yes. The elements of espionage in the first mode are complete. Q: What if he chartered a private helicopter to take aerial pictures? Liable. Q: Under the RPC? No, the law that governs in this case is CA 616

Q: Suppose a journalist who was accosted told the authorities that he only wanted to take pictures of modern war machines he previously read about in the Manila Bulletin? No. The information he intends to obtain is no longer confidential. It has been declassified. (think: publication in a newspaper) Q: What is the second manner of commission? By disclosing to the representatives of a foreign nation the contents of the articles, data or information referred to in par.1, art.117, which the offender had in his possession by reason of his public office. Q: A high-ranking official has possession of classified information. In order to impress a foreign beauty candidate, he shared the information with her. May he be criminally liable under the second manner of commission? Yes. The law speaks of ‘representatives’. It makes no distinction as to what kind of representative. A foreign beauty candidate is a representative of her nation.

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Q: What if he climbed a tree to get a better view? Liable. (CA 616)


Art. 118 INCITING TO WAR OR GIVING MOTIVES FOR REPRISALS Q: How is this committed? The offender performs unlawful or unauthorized acts, and such acts provoke or give occasion for a war involving or liable to involve the Philippines or expose Filipino citizens to reprisals in their persons and property. Q: Can you give an example Burning another country’s flag, if the act results in a war that involves or is liable to involve the Philippines Q: The US is involved in a war. Suppose the Philippines trained a battalion of soldiers to be deployed in Iraq; if the person training those soldiers has no authority to do so, will he be liable? No. He becomes liable if he is authorized to train those soldiers.

Art. 119 VIOLATION OF NEUTRALITY Q: How is this committed? There is a war in which the Philippines is involved, there is a regulation issued by competent authority for the purpose of enforcing neutrality, and the offender violates such regulation. Q: Can you give an example Q: What is neutrality? The state of taking no part in a contest of arms going on between others. A condition of abstinence from armed hostilities. Q: Is it necessary for there to be a government regulation? Yes. Q: Are you saying it is the regulation that you actually violate? Yes. Q: So you mean that without a regulation, a person will not be liable under this provision? Yes.

Q: Who declares our neutrality? Congress.

Art. 120 CORRESPONDENCE WITH HOSTILE COUNTRY Q: How is this committed? It is in time of war in which the Philippines is involved, the offender makes correspondence with an enemy country or a territory occupied by enemy troops; and the correspondence is either a)prohibited by Government; b)carried on in ciphers or conventional signs; or c)containing notice or information which might be useful to the enemy

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Q: Whose neutrality is violated when a person commits this crime? The Philippines’ neutrality.

CRIMINAL LAW II 10 K notes Q: Supposing the Phils is at war with Malaysia. Mindanao is under control of Malaysia. You left your boyfriend in Davao, you wrote a letter to him and sent it. The government previously restricted all mail into Mindanao. Will you be liable? Yes. Q: Supposing you wrote a letter with a heart and an arrow drawn on the paper. No words were used. Will you be liable? Yes. ‘Ciphers and conventional signs’. Q: Is intent material here? No. Q: May a person be held liable even if the correspondence contains innocent matters? Even if the matters are innocent, so long as it is prohibited by the government and you send it or commit the prohibited act, you are liable. Q: Why is intent immaterial when the government has expressly prohibited correspondence? Because of the possibility that some information that might prove useful to the enemy might be unwittingly revealed. Q: So it is the possibility of revealing that information that is sought to be pre-empted? Yes. NOTE: *If ciphers were used, there is no need for prohibition

Art. 121 FLIGHT TO ENEMY’S COUNTRY Q: How is this committed? There is a war in which the Philippines is involved; the offender must be owing allegiance to the Government; the offender attempts to flee or to go to enemy country; that going is prohibited by competent authority. Q: Can you give an example Q: What consummates the crime? The mere attempt to flee

Q: May resident aliens be held liable? Yes. ‘Allegiance’ may be temporary or permanent. The law does not qualify. Q: Supposing you fly to enemy country. The act is not prohibited by the government. May you be liable? No. There must be prohibition by competent authority. Q: So you mean the prohibition defines the crime? Yes.

Art. 122 PIRACY IN GENERAL AND MUTINY ON THE HIGH SEAS OR IN PHILIPPINE WATERS

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Q: Who may be held liable? Persons owing allegiance to the government

CRIMINAL LAW II 11 K notes Q: How is this committed? 1. By attacking or seizing a vessel on the high seas or in PH waters 2. By seizing in the vessel while on the high seas or in PH waters the whole or part of its cargo, its equivalent or the personal belongings of its complement or passengers Q: What is piracy? Robbery or forcible depredation on the high seas or in PH waters without lawful authority, and done with animo furandi and in the spirit of universal hostility. Q: Where may piracy be committed? On the High Seas or in PH waters Q: What are the 2 kinds of piracy punished by our laws? 1. Piracy under the RPC (art. 122) 2. Piracy under Presidential Decree 532 Q: Under the RPC, may piracy be committed by a stranger? Yes. Q: Under the same law, may it be committed by a crew member of passenger? Yes. Q: Define ‘high seas’ Any waters on the sea coast which are without the boundaries of the low-water marks although those waters may be in the jurisdictional limits of a foreign country. Q: Is the term synonymous with ‘international waters’? No. Q: What are included in the definition of ‘Philippine waters’? All bodies of water such as but not limited to seas, bays, gulfs around, between and connecting each of the islands of the Philippine archipelago, irrespective of their depth or breadth over which the Philippines has sovereignty or jurisdiction Q: What is a vessel? Any craft used for the transport of passengers and cargo from one place to another through PH waters, including all kinds and types of vessels or boats used in fishing (sec.3, PD 532) Q: May piracy be committed in the Pasig river? Yes

Q: Is the banca considered a vessel? Yes Q: Is Burnham lake considered a body of water? Yes Q: Even if it happens to be man-made? Yes Q: Is the phone personal property? Yes Q: The person who took your phone, was he a member of the complement or a passenger?

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Q: Suppose you were on board a banca in Burnham lake (Baguio City); you took out your phone and a person suddenly seized it from you. What crime was committed? Piracy under the RPC (because the offender was a stranger)

CRIMINAL LAW II 12 K notes He was a stranger Q: May piracy be committed in the Estero de San Miguel, beneath the Mendiola Bridge? Yes Q: Suppose the estero was full of garbage, may piracy still be committed? No, the waters must at least be navigable Q: On a banca from Mandaluyong to Makati, one of the passengers was a hold-upper, in the middle of the river, he announced a hold-up and demanded that you give your belongings to him. What crime did he commit? Piracy under PD 532 Q: On a ship from Manila to Cebu: while waiting for the departure of the ship, a person suddenly boarded the ship, pointed a knife at you, demanded that you surrender your belongings, after which, he got off. What crime was committed? Piracy under RPC Q: Even if the ship was not sailing then? Yes Q: What if it was a fellow passenger who took your belongings? The crime is piracy under the RPC Q: Supposing you are in a floating casino in Manila Bay. While you were there, a person pointed a revolver at you and demanded that you give him your winnings. What crime was committed? Piracy under the RPC and PD 532 Q: Who decides which crime is to be alleged in the information sheet? The prosecutor / fiscal Q: So you file both and let the fiscal decide? Yes Q: Supposing Indonesian pirates committed the crime in Malaysian waters. They fled and encountered engine trouble. They were brought by the Philippine Coastguard to Manila. May they be prosecuted in a Regional Trial Court in Manila? Yes

Q: When is piracy qualified? 1. Whenever the pirates have seized a vessel by boarding or firing upon the same; 2. Whenever they have abandoned their victims without any means of saving themselves; 3. Whenever the crime is accompanied by murder, homicide, physical injuries or rape Q: Can you give an example Q: Is there a complex crime of piracy with rape? None. Qualified piracy is a separate crime in itself

RA 6235 THE ANTI-HIJACKING LAW Q: What are the punishable acts, as far as an aircraft of Philippine registry is concerned?

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*NB: Piracy is a crime against the law of nations and pirates are hostes humani generis (enemies of the human race)

CRIMINAL LAW II 13 K notes 1.

Compelling a change in the course or destination of an aircraft (whether the aircraft is in flight or not) 2. Seizing or usurping control of an aircraft while it is in flight Q: When is an aircraft considered to be ‘in flight’? From the moment all its external doors are closed following embarkation until any of such doors is opened for disembarkation *NB: ‘flight’ as far as an aircraft of PH registry is concerned is the crucial time element which would determine the commission of the crime of hijacking Q: On a PAL flight from Manila to Davao: the accused compelled the pilot to veer the plane a little to the right for a couple of minutes. Is this a violation of RA 6235? Yes, the accused compelled to pilot to change the course of the plane for a few minutes Q: The accused bribed the pilot to veer the plane a little to the left in exchange for money. Is he liable under this law? No. There was no compulsion involved. Q: May a plane be considered in flight when its doors are already closed but the plane itself is still on the ground because there happens to be an engine problem? Yes Q: Supposing the doors were already closed, the passengers were already on board but the pilot was still waiting for instructions from the control tower. The accused seized control of the plane during this interval. Is he liable? Yes Q: You mean to say the plane was already in flight? Yes Q: Are you saying that the legal definition of ‘flight’ is different from the scientific definition of ‘flight’? Yes Q: Is that not ridiculous? (trolling moment, mates. Say the answer loud and clear: ) Yes, sir.It isridiculous :D Q: Supposing a group of skydivers on board a PH plane were about to stage an exhibition. At an altitude of 15,000 ft. the door of the plane opened and the divers jumped out. The last person, instead of jumping, seized control of the plane instead. Is he liable? No. Legally speaking, the plane is no longer in flight, notwithstanding the fact that it is actually flying.

Q: What are the punishable acts, as far as a plane of foreign registry is concerned? 1. Landing the plane anywhere within the Philippines 2. Seizing of usurping control of the plane while it is within the Philippines Q: Is it necessary that the usurping or seizing of control be done while the foreign plane is legally in flight? No Q: Japan Airlines. After the plane has landed, the external doors were opened and the accused barged into the cockpit and seized control of the plane. Is he liable? Yes

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Q: What crime was committed, if not hijacking? Grave coercion

CRIMINAL LAW II 14 K notes Q: Under the same circumstances, except that the plane was one of PAL. Is the accused liable for hijacking? No Q: What are the other punishable acts under RA 6235? Shipping, Loading, Carrying in any passenger aircraft operating as a public utility within the Philippines any explosive, flammable, corrosive or poisonous substance or material Q: May the offenders still be held liable for shipping/loading/carrying any explosive… material if they did so on a chartered plane? Yes Q: Why? The character of a public utility is NOT changed by a mere contract (i.e. the fact that it was chartered). It remains a public utility. Q: Why won’t an offender be held liable if the acts were to be committed on a private aircraft? Because there is no threat to innocent passengers, and this threat is what the law seeks to avoid. (if you do this on your own plane, go ahead. Pakamatay ka mag isa –Atty. A) Q: What are the qualifying circumstances under this special law? -When the offender has fired upon the pilot, members of passengers -When the crime was accompanied by murder, homicide, serious physical injuries or rape

ART. 123 QUALIFIED PIRACY Q: What are the qualifying circumstances? 1. Whenever the offenders have seized a vessel by boarding or firing upon the same 2. Whenever the pirates have abandoned their victims without means of saving themselves 3. Whenever the crime is accompanied by murder, homicide, physical injuries or rape

PEOPLE v. CATANTAN 278 SCRA 761 Bellosillo, J. Emiliano Catantan was found guilty of piracy for having attacked Eugene and Juan Pilapil, Jr., who were then fishing. He allegedly boarded the Pilapils’ pump boat, levelled his gun at Eugene, struck the latter on the cheek and ordered Juan, Jr. to lie down. When they were far out into sea, the engine stalled and the brothers were directed to row the boat. They saw another boat and Catantan ordered them to approach it. He boarded the new boat, along with his co-accused, Ursal. The outrigger of the new boat caught the front part of the Pilapils’ boat and Catantan kicked it hard, causing the prow to break. The Pilapil brothers ended in the sea, where they swam together, clinging to their boat. Catantan argues that his actions merely constituted Grave Coercion and not Piracy; and that in order for Piracy to be committed, it is essential that there is an attack and seizure of a vessel. He claims that he and Ursal merely boarded the Pilapils’ boat and when aboard, used force to compel the brothers to take them to some other place. Catantan insists that he and Ursal had no intention of permanently taking possession or depriving the Pilapils of their boat. ISSUE: Did the actions of Catantan constitute Piracy as defined by Section 2, par.(d) of Presidential Decree No. 532? HELD:

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FACTS:

CRIMINAL LAW II 15 K notes YES. Sec.2, par.(d) of PD 532 defines piracy as ‘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 the complement or passengers, irrespective of the value thereof, by means of violence against or intimidation of persons, including a passenger or member of the complement of said vessel in Philippine waters.’ The compulsion on the Pilapils was obviously part of the act of seizing the boat. Catantan and Ursal abandoned the Pilapils only because their pump boat broke down and it was necessary to transfer to another boat.

- oOo PEOPLE v. TULIN 364 SCRA 10 Melo, J. FACTS: ‘M/T Tabangao’ was sailing of the coast of Mindoro, carrying a total value of Php 40.4 Million in petroleum products. It was suddenly boarded by seven fully armed pirates led by Emilio Changco. The pirates detained the crew and took complete control of the vessel. The crew was ordered to paint over the name ‘M/T Tabangao’ on the front and rear portions of the vessel as well as the logo on its chimney. They were then ordered to paint the name ‘Galilee’. The crew was forced to sail to Singapore where, following a failed attempt to anchor, it returned to Batangas. A few days later, it sailed again to Singapore and anchored a few miles from the shoreline where another vessel named ‘Navi Pride’ anchored beside it, to which the captive crew was ordered by Changco to transfer the petroleum products. ‘M/T Tabangao’ returned to Batangas, but remained at sea. 2 days later, the members of the crew were released in 3 batches, the 1st and 2nd batches were fetched from the shoreline by Cecilio Changco, Emilio Changco’s brother. The crew called their employer and reported the incident. A series of arrests were made and accused-appellants Tulin, Loyola, Changco, Infante and Hiong were apprehended and charged with Qualified Piracy, to which they pleaded not guilty. Tulin, Infante and Loyola claimed that they were standing by the beach, conversing, when ‘M/T Tabangao’s Captain and 2nd Mate approached them and asked if they wanted to work on the vessel, to which they allegedly agreed even if they had no sea-going experience. The trial court found them guilty beyond reasonable doubt and convicted them to Reclusion Perpetua.

HELD: 1. NO. Art.122 of the RPC, before its amendment, provided that piracy must be committed on the high seas by any person not a member of a ship’s complement nor a passenger. Upon its amendment by RA 7659, the coverage of the pertinent provision was widened to include offenses committed ‘in Philippine waters’. On the other hand, under PD 532, the coverage of the law on piracy embraces any person, ‘including a passenger or member of the complement.’ RA 7659 neither superseded not amended the provisions on piracy under PD 532. Art.122, as amended; and PD 532 exist harmoniously as separate laws. 2. YES. Although PD 532 requires that the attack and seizure of the vessel and its cargo be committed in Philippine waters, the disposition by the pirates of the vessel and its cargo is still deemed part of the act of piracy, hence the same need not be committed in Philippine waters. Piracy falls under Title One, Book Two of the Revised Penal Code. As such, it is an exception to the rule on territoriality in criminal law.

HIRYU KIMIKO OKUBO

ISSUES: 1. Did Republic Act 7659, amending Art.122 of the Revised Penal Code, obliterate the crime of Piracy under PD 532? 2. Can Accused-Appellant Cheong be convicted as an accomplice despite the fact that the actions he allegedly committed were executed outside Philippine waters and territory?


TITLE II CRIMES COMMITTED BY PUBLIC OFFICERS ART. 124 ARBITRARY DETENTION Q: What are the classes of arbitrary detention? 1. Detaining a person without legal ground 2. Delay in the delivery of detained persons to the proper judicial authorities 3. Delaying release Q: Manner of commission (elements) 1. The offender is a public officer or employee 2. He detains a person 3. The detention is without legal grounds Q: May this be committed by ANY public officer? No – only those vested with authority to detain a person Q: And who are those public officers? Those who have a duty to make an arrest; or those who may recommend an arrest or detention; or those who may order an arrest or detention Q: May a private individual be liable for arbitrary detention? Yes Q: How? By proving him to be an accomplice, accessory or a principal (by inducement/indispensable cooperation) Q: May a private person be held liable as a principal by direct participation? Yes Q: How? By proving a conspiracy between the private individual and the public officer

Q: What are the instances when a warrantless arrest may be considered lawful? 1. When the offender has committed, is actually committing, or is attempting to commit an offense in the presence of the arresting officer 2. When the arresting officer has personal knowledge of the facts and circumstances of the commission of the crime 3. When the person arrested is a prisoner who has escaped Q: Give an example of the first instance Q: May a crime be committed in the presence of an officer who is blind? Deaf? Both? Yes; Yes; and Yes. Q: Explain. Said officer still has other senses with which to determine the commission of a crime.

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Q: May this be committed by an officer who arrested and detained a person by virtue of a warrant issued by court? No. The moment there is a warrant, no arbitrary detention can be committed. A warrant grants the authority to arrest a person.

CRIMINAL LAW II 17 K notes Q: Under arbitrary detention, is it necessary that the arrest is without legal ground? Yes Q: And if the arrest is with legal ground? There is no crime of arbitrary detention Q: Give examples of ‘legal grounds’ 1. Commission of a crime 2. Ailments requiring compulsory confinement 3. Violent insanity NB: violent insanity. Not plain insanity. The law specifies the degree of insanity required. Q: Under the 1st manner, suppose you were walking home and you saw A,B,C entering the house of your neighbor, carrying out their plan to rob the latter. May you as a private individual arrest them? Yes. The crime is being committed in my presence. Q: Supposing one night, while on your way home, you saw Pedro tinkering with the padlock of your gate. May you arrest him? Yes. He is attempting to commit an offense. Q: Are you sure that he is? Suppose he told you he was merely curious. May you still arrest him? Yes. I can link the overt act of tinkering with the gate to the commission of robbery or trespass to dwelling. It’s also illogical for him to be tinkering with a padlock at that time of the night. The circumstances tend to prove robbery. Q: Under the first instance of a warrantless arrest (i.e: the offender has committed a crime). Give an example Q: Supposing on your way to San Beda, you saw a commotion. A was stabbed by B. They were 5 meters away from you. B starts to run. You stopped him and proceeded to arrest him. Were your actions lawful? Yes. A crime was just committed in my presence. Q: One day you saw Juan stab Pedro. You failed to arrest him. After a month, you saw Juan walking near your house. May you arrest him? Yes. The crime was committed in my presence Q: Even if the crime was committed a month ago? Yes, the lapse of time is immaterial

Q: There was a commotion in front of UE. While on your way there, you saw people running towards your direction. You asked them what happened. They told you that a person was stabbed in front of the university. You reached UE and saw the victim. He pointed to a running figure and told you that the said figure was the stabber. You ran after the suspect but lost him in the crowd. When you reached Morayta, you saw a man wearing a bloody shirt. May you arrest him? Yes. There is probable cause to believe that he was the one who committed the offense. I talked to the victim and obtained personal knowledge of the facts of the crime. I can link the bloody shirt to the facts. This gives me probable cause to believe that the man was indeed the stabber. Q: Supposing you did not get to talk to the victim, you simply heard the shouts about the fleeing stabber. You saw a man with a knife somewhere along Morayta. He was cleaning his knife. May you arrest him?

HIRYU KIMIKO OKUBO

Q: What is the second instance of a warrantless arrest? When an offense has in fact just been committed and the officer has probable cause to believe that the person was the one who committed it, and the officer has personal knowledge of the facts indicating that the person to be arrested has committed it.

CRIMINAL LAW II 18 K notes No. I do not have personal knowledge of the facts of the crime. I may not unilaterally assume that he committed the stabbing simply because I saw him cleaning a knife. Q: Supposing the victim told you the man that stabbed him is tall, white, with a prominent chin and dressed in a white shirt. When you reached Morayta, you saw a man fitting the description. May you arrest him? No. The facts are too general. They are not what the law contemplates by ‘personal knowledge of facts’ – they aren’t enough to sustain a lawful warrantless arrest. They do not constitute probable cause. *NB: going by the above description, anybody can be the stabber. ‘Tall, white, with a prominent chin and wearing a white shirt’ – perhaps half the male population of metro manila can fit the description Q: Ms. Palay is a victim of rape. Together with her parents, she proceeded to the NBI to report the incident. Due to the influence of the media, the case became well-known. A task force was organized, this task force was independent of the NBI. The task force learned that the rapist was in Bacolod. They went there, and found him. May the lawfully arrest him without a warrant? No. There is no personal knowledge, merely hearsay knowledge. Q: Under the same facts, you were in Bacolod airport and saw a man wearing a jacket with the name ‘Mabelle Palay’ embroidered on it. May you arrest him? No. I have no personal knowledge of the facts. *NB: the jacket alone is not a sufficient basis for probable cause. Q: 10 cars were carnapped from the Toyota showroom. The incident was reported to your office. The following morning, Manila PD received a call from a secret informant that the carnappers were on their way to Binondo and will have dinner at one of the restaurants there. 5 officers were dispatched to the scene and at 8pm, the carnappers arrived. May the officers effect an arrest? No. They merely have hearsay knowledge. Q: Define ‘probable cause’ Q: Is probable cause the same as suspicion? No Q: Can a person be arrested based on suspicion? No

Q: X stabbed someone and was chased by people as he fled. He was holding a knife and wearing a shirt stained with blood. From the opposite direction, a police officer saw the commotion. He arrested X. Is the arrest a lawful one? Yes Q: Your house was robbed. You saw the robbers as they fled. You were able to give a description of them to the police. After 3 days, the officers saw a person who fitted the descriptions you gave. Is the warrantless arrest lawful? No. The officers had enough time to secure a warrant. Q: Can arbitrary detention be committed through imprudence? Yes Q: What are the periods of detention which the law penalizes? -Not exceeding 3 days

HIRYU KIMIKO OKUBO

Q: Why not? Because suspicion is not the same as probable cause.

CRIMINAL LAW II 19 K notes -More than 3 days but less than 15 days -More than 15 days but less than 6 months -More than 6 months Q: In the case of an escaped prisoner, why is a warrantless arrest not unlawful? Because the escapee is already in the act of committing a continuous crime: evasion of the service of sentence Q: What are the legal grounds for detaining a person? -commission of a crime -violent insanity -ailments requiring compulsory confinement (nb: not just any ailment) Q: Y was killed by an unknown assailant. The officers got a tip that X was the offender. They arrested him. X voluntarily admitted that he did it although he was not asked by the officers to do so. He was detained. Was there arbitrary detention? None. Once X made the confession, the officers had a right to arrest him. NOTES: *There is detention when a person is placed in confinement or there is restraint on his liberty *The person detained need not be ‘restrained’ literally. He may even be able to walk around. The essence of detention is that the person is not allowed to leave of his own volition and his liberty is curtailed. *Although the primary persons liable for this crime are public officers/employees, private individuals who conspire with public officers may also be liable

ART. 125 DELAY IN THE DELIVERY OF DETAINED PERSONS TO THE PROPER JUDICIAL AUTHORITIES

Q: What is meant by ‘delay in delivery’ here? The delay in delivery refers to the filing of the proper complaint/information or charge against the person detained before a court. *NB: the filing of the information may be waived if a preliminary investigation is asked for Q: So you’re saying that the delivery here does not pertain to actual physical delivery? Yes. What is meant by delivery is the filing of the complaint/information/charge Q: Why does the law punish the delay in filing? To protect the accused Q: How is that?

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Q: What are the elements? 1. The offender is a public officer/employee 2. He has detained a person for some legal ground 3. He fails to deliver such person to the proper judicial authorities within – a. 12 hrs, for crimes/offenses punishable by light penalties or their equivalent b. 18 hrs, for crimes/offenses punishable by correctional penalties/their equivalent c. 36hrs, for crimes/offenses punishable by capital punishment or afflictive penalties, or their equivalent

CRIMINAL LAW II 20 K notes The filing of the proper complaint puts the accused under the ambit of judicial protection. The courts will take it from there. If certain actions (i.e.: conveyance to prison or facilities like an asylum) is necessary, the courts may order them. Without the complaint, and the protection of the law, the accused is open to all sorts of abuse. Q: If the detention was illegal to begin with (i.e.: done in excess of the period for filing the complaint/information allowed by law), does a subsequent filing cure the illegality? No Q: May the officers ask the accused to sign a waiver concerning the detention? Yes, but the waiver must be executed by the accused under oath and with the assistance of counsel, in order to avoid a violation of the accused’s constitutional rights. Q: What is the length of the waiver of arbitrary detention? -5 days for light offenses -7 to 10 days for serious and less serious offenses *NB: Beyond this, arbitrary detention is committed. Q: If the offender is not a public officer, or is a public officer acting in a private capacity, what is the crime committed? Illegal detention Q: distinguish arbitrary detention from illegal detention Q: May a public officer who arrested an offender by virtue of a warrant of arrest be held liable for arbitrary detention? No. The presence of a warrant takes the act out of the contemplation of Art. 125 Q: Who may issue a warrant of arrest? A competent court Q: What do you mean by ‘competent’? The court is vested with jurisdiction over the offense committed Q: When does the delay become illegal? Upon the expiration of the specified periods Q: What are the periods? *NB: Art.125 applies only when the arrest is made without a valid warrant of arrest AND the subsequent warrantless arrest is a lawful one.

Q: Is a turnover to the PNP sufficient compliance with the law? The Ombudsman? The Public Prosecutor? The Provincial Governnor? No to all the above-mentioned officials, they are not part of the judiciary Q: Suppose you arrested a robber by virtue of a warrant of arrest. Due to bad weather conditions, you failed to deliver him to the proper authorities. May you be held liable? No, there is a warrant of arrest, I can detain him for as long as the circumstances warrant Q: Suppose you killed a neighbour in the course of your town fiesta. There was a police officer present and he arrested you because he saw the killing happen. Within how many hours must he deliver you to the proper authorities? 36 hours, the crime I committed is punishable by an afflictive penalty (homicide/murder)

HIRYU KIMIKO OKUBO

Q: Supposing the accused was delivered to the fiscal/prosecutor, does art.125 still apply? Yes. The fiscal is not part of the judiciary.


Q: And if you were delivered within 48 hours, what crime did the officer commit? Violation of Art. 125 Q: Supposing the police officer could not deliver you within 36 hours, what should he do? Release me. Q: Assuming that the detention was illegal to begin with, does this affect the validity of your arrest? Not necessarily. The arrest may have been valid at its inception, notwithstanding that the subsequent detention was illegal. Q: As a police officer, you validly arrested a murderer. Instead of delivering him to the proper judicial authorities, you proposed a different deal: he would serve as your manservant for a year. He agreed. What crime may you be charged with? Art.125 Q: Why isn’t a public officer liable if he failed to deliver the accused to the judicial authorities beyond the specified periods in Art. 125 when the arrest was effected by virtue of a valid warrant? Because the accused is already within the sphere of judicial protection. The issuance of a warrant presupposes that a criminal information sheet was already filed before a competent court. Q: Illustrate the ‘judicial protection’ contemplated by this article The accused, when placed under judicial protection may safely exercise his rights (i.e.: the right to bail/ preliminary investigation/ speedy, impartial and public trial ++ ) and can be monitored by the court. He is no longer vulnerable to abuse in the hands of the arresting officers. Q: A police officer delivered a murderer to the public prosecutor on the 37 th hour following the incident. The prosecutor filed an information 3 days later. Is the police officer liable under this provision? Yes Q: Is the prosecutor liable? No Q: When an officer releases a person because he could not deliver that person to the proper judicial authorities within the timeframe provided for in this provision, may he be held criminally liable? No, but he may be held administratively liable

ART. 126 DELAYING RELEASE

Q: When is there a release in delay? (elements) 1. The offender is a public officer/employee 2. a. there is a judicial or executive order for the release of a prisoner b. there is a proceeding upon a petition for the liberation of such person 3. The offender without good reason delays a. the service of notice of such order to the prisoner b. the performance of such judicial/executive order for the release of the prisoner c. the proceedings upon a petition for the liberation of such person Q: Upon whom is the notice served? The jailer or warden Q: Give an example of a proceeding for the liberation of a person contemplated by this provision

HIRYU KIMIKO OKUBO

Q: Who are the public officers most likely to violate this provision? Wardens and jailers; bailiffs, sheriffs, and clerks of court as far as service of notice is concerned

CRIMINAL LAW II 22 K notes Proceedings for Habeas Corpus *NB: It helps to know the definition of Habeas Corpus ;)

ART. 127 EXPULSION Q: What are the elements? 1. Offender = public officer/employee 2. He expels a person from the Philippines or compels a person to change his residence 3. The offender is not authorized by law to do so Q: Who may be validly expelled from the PH? Aliens ONLY (a citizen may not be expelled) Q: Who may order the expulsion? The President, as recommended by the Commission on Immigration and Deportation Q: Suppose there is a convict who has already served the minimum of his sentence and was allowed parole. The condition of his parole fixes his residence in a different place, against his own will. Is the condition valid? Yes, the law on probation allows the court to fix conditions for a person’s parole. The compulsion is authorized by law. Q: The Mayor of Manila ordered the arrest of prostitutes in order to clean up the city and to stop prostitution. He had them brought to Mindanao. Is he liable? Yes *NB: Actual case: Villavicencio v. Lukban Q: May an alien be deported by the Commission on Immigration and Deportation without violating this provision? Yes, if the alien is an undesirable alien Q: Suppose X, a Filipino citizen, was refused re-entry into the PH after he had voluntarily left the country a year before. May the act of refusal be considered as forcing him to change his residence? Yes Q: Is a threat to national security a valid reason for expelling a citizen? No

Q: Give instances when a person may be lawfully compelled to change his address -By virtue of a judicial order/final judgment -Expropriation proceedings -Ejectment proceedings -Destierro -As a condition for parole/probation/pardon -By virtue of a barangay protection order, in relation to the Anti-Violence against Women and Children Law (RA 9262)

SECTION TWO – VIOLATION OF DOMICILE

HIRYU KIMIKO OKUBO

Q: Why can’t a Filipino citizen be expelled? Because it is his legal and natural right – conferred upon birth – to live and die in the Philippines


ART.128 VIOLATION OF DOMICILE *NB: Pay special attention to this provision. It almost always comes up in the Midterm Exam Q: How is this committed? 1. By entering any dwelling against the will of the owner thereof; or 2. By searching papers or other effects found therein without the previous consent of the owner; or 3. By refusing to leave the premises after having surreptitiously entered the said dwelling and after having been required the leave the same Q: Who may be held liable for this crime? Public officers/employees who are vested with authority to conduct a search Q: Under the first manner, must entry be done against the owner’s will? Yes Q: Suppose there is a judicial order for the entry, May the officer be liable? No Q: What do you mean by ‘judicial order’? A search warrant Q: Define a search warrant It is an order in writing issued in the name of the People of the Philippines, signed by the Judge and directed to a peace officer, commanding him to search for personal property described therein and to bring it before the court (Sec.1, Rule 126, Revised Rules of Criminal Procedure) Q: When is this issued? Upon probable cause Q: Define ‘probable cause’ Q: What do you mean by ‘dwelling’? A place of rest and comfort Q: (Trolling moment :P ) So a comfort room is a dwelling? No Q: You said ‘place of rest and comfort’. The place must satisfy the domestic life of a person

Q: Suppose the house was made of cardboard. May the officer still be held liable? Yes Q: What are the requisites of a valid search warrant? 1. It must be issued upon probable cause 2. It must be issued for a single offense 3. The probable cause must be determined personally by the issuing judge 4. It must contain a particular description of the place, persons or things to be seized Q: Suppose one of the requisites is missing, what is the legal effect on the warrant? The warrant becomes null and void

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Q: Must the dwelling be a concrete house? No

CRIMINAL LAW II 24 K notes Q: How does the issuing judge determine probable cause? Through the use of searching questions Q: May he delegate this task to somebody else? No, he must perform it personally Q: Suppose the search warrant was not obtained lawfully, what is its effect on the personal property seized? The things seized are inadmissible as evidence against the accused *NB: Recall the Doctrine of the Fruit of the Poisonous Tree (you can thank Justice Holmes for the cheesy label btw) Q: The NBI conducted a surveillance operation for 2 weeks, after which the agents were convinced that there is indeed a shabu lab inside a certain compound. They applied for a search warrant for a violation of the Comprehensive Dangerous Drugs Act (CDDA) and for Illegal Possession of Firearms. Is the warrant issued by the court a valid one? No, it was issued for 2 offenses. The agents should have applied for 2 separate warrants. Q: A warrant was issued for a violation of the CDDA. When the agents entered the compound, they saw a warehouse whose door was open, through which they could see high-powered firearms. They seized the firearms. May those same firearms be used as evidence against the owners of the compound? Yes. Although the warrant specified a search for illicit drugs only, the seizure of the firearms may be justified under the Plain View Doctrine *NB: The Plain View Doctrine allows officers to seize incriminating evidence so long as the items seized were within their plain view. What is meant by ‘plain view’ however is that the items must be (1)open to eye and hand and that (2)the incriminating nature of the items is obvious or apparent to the officers seizing them. It does NOT allow the officers to SEARCH for the items if the same items are not included in the warrant and are not within plain view. Q: Suppose the warrant issued was for the seizure of equipment etc for the production of shabu, and stated the location of the shabu lab as being ‘inside a compound, within a white house with a blue gate’. Is the warrant valid? No. There is no particularity of description. Any compound or house could fit the description.

Q: A warrant was issued against 4 accused for violation of the internal revenue law. It ordered the seizure of ‘all documents contained inside 2 cabinets in the office of the accused’, the agents implemented the warrant and seized each piece of paper found within the cabinets. The prosecutor sifted through the papers and chose the relevant ones and then presented them as evidence. May the papers be admitted as evidence against the accused, in view of their relevance to the offense charged? No. They were illegally obtained. The warrant was in the nature of a general warrant, it did not contain a particularity of description of things to be seized. Q: NBI agents applied for a search warrant in order to search a house said to be a shabu lab. It was almost 5pm when they arrived at the sala of the judge. The judge was in a hurry and instructed the clerk of court to receive whatever evidence the agents were to present in support of their application for the warrant, to draft the warrant, and to bring the same to the judge. Everything was done by the clerk,

HIRYU KIMIKO OKUBO

Q: A warrant was issued for Illegal Possession of Firearms. It ordered the peace officers to seize highpowered firearms in the condominium unit of the accused located on the 5 th floor of a building. The agents saw that there were several other units on that floor, so they knocked on the door of the 1 st unit there and inquired about the one they were searching for. The tenant pointed to the one on the far end. The agents raided that unit and seized the firearms. May the firearms be used as evidence? No. There was an intervention of a third person in conducting the search and seizure. The warrant did not fulfill the requirements for validity. It did not state with particularity the place to be searched.

CRIMINAL LAW II 25 K notes who left a blank space for the signature of the judge. The clerk brought the order to the judge who signed it. The NBI agents implemented the warrant. Is the warrant valid? No, probable cause was not determined by the judge Q: Suppose the judge was not in his sala. You were one of the NBI agents. You were pressed for time so you asked the judge’s wife – who was present –to sign the warrant. The wife happened to be an Associate Justice of the Supreme Court. Is the search warrant valid? No, the duty to determine probable cause is a personal one. The only person who could have issued it was the judge, not his wife. Q: But his wife was is a Supreme Court Justice Her position is immaterial. Only her husband could have issued the warrant, even if he did happen to occupy a lower position. Q: In the course of a search for violation of the CDDA, NBI agents inadvertently came across unlicensed firearms. May the seize the guns and use them as evidence? No Q: A SW was issued directing officers to seize firearms in a unit on the 3rd floor of ABC Condominium. When the NBI agents got there, they found many units. They searched every room until they found the one containing the firearms. Was the search and subsequent seizure valid? No, the fact that they had to search roomtoroom presupposes that the warrant did not contain a sufficiently particular description of the place to be searched Q: Suppose the accused owned the entire 3rd floor. Was the room-to-room search valid? Yes Q: A SW was issued. The place described was a ‘2-storey blue house within XYZ compound’. When the officers arrived there, they found 3 two-storey houses. They entered each of the houses and served the warrant. Were their actions lawful? No Q: Suppose then that when the officers arrived at XYZ compound, they found no 2-storey blue house. One officer asked the guard on duty and the guard told them the house they were looking for was on the other street. They followed the guard’s instructions and found the house. They served the warrant. Was the service of warrant lawful? No

*NB: Why the outlandish hypotheticals, you ask. Simple enough: He’s drilling it into you: the NBI agent/ officers implementing the warrant should NOT need nor ask any help in identifying the place to be searched because once they do;the warrant does not contain a sufficient description of the locale to be searched. Q: May vessels (i.e.: boats) be searched without a warrant? Aircraft? Yes to both. The nature of these vessels/aircraft makes them easy to move. Q: Suppose the person who committed the punishable acts under this provision is a private individual, what crime did he commit? Trespass to dwelling Q: When may we say that there has been entry against the will of the owner? When the entry is effected against an express or implied prohibition

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Q: Suppose the warrant described the place to be searched as a ‘rainbow painted house – blue door, pink roof, yellow windows’. When the officers arrived, they served the warrant. Was the service valid? Yes (‘hard to miss a house painted so garishly’ –Atty A.)

CRIMINAL LAW II 26 K notes Q: A police officer who is your neighbour noticed that the front door to your house was slightly ajar. HE entered to investigate what was going on because it aroused his suspicion. Is this a violation? No Q: There was a sign on the door ‘DO NOT ENTER AT ALL TIMES’ but the door was slightly open. Would entry be a violation? Yes, the sign constitutes an express prohibition Q: Give an example of an implied prohibition A locked door Q: Suppose the door was locked, and the police officer picked the lock in order to enter and investigate. Is he liable? Yes Q: A sign says ‘NO TRESPASSING’ and the officer entered. Is he liable? Yes Q: Suppose the sign says ‘ENTER AT YOUR OWN RISK’. Would entry make the officer liable? No Q: What if it said ‘BEWARE OF DOGS’? No. (‘The sign is merely a warning.. that there are.. dogs.’ :D –Jaika Dublado, 1k) Q: An officer saw your younger brother enter your house with an unlicensed firearm. The door was halfopen but a sign said ‘Strangers Keep Out’. The officer entered. Is he liable? Yes – express prohibition Q: Suppose there was no sign The officer is not liable Q: Suppose the officer entered and sat on the sofa. The door was closed but not locked. Is he liable? Yes, closed door = implied prohibition Q: Under the second manner of commission (searching papers and effects without the owner’s previous consent), is it necessary that the entry be done without the consent of the owner? No. What is punished here is an unconsented search, not entry.

Q: What if the owner consented to a search of the living room and the officer continued searching into the hallways and the bedrooms, is he liable under the second manner? Yes. The permission was only for the living room. Q: A police officer entered your house with your consent. While waiting in the sala, he saw an unlicensed firearm atop the TV. He seized the same. Were his actions valid? Yes, under the plain view doctrine Q: Suppose you allowed a police officer to enter the living room. You left to make him some coffee. When you returned, he was searching the room. You asked him what he was doing and he said ‘trying to look for shabu’. You said ‘there’s no shabu here, if you want, you can search the other rooms of the house’. Was the search in the living room valid? No, there was no previous consent

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*NB: It’s easy enough to imagine the scenario contemplated by the law. For instance, the officer entered without the owner’s consent, but when the owner saw the officer, he did not complain. The officer then proceeded to conduct a search. Notice that the owner subsequently allowed the entry, but did not give permission for a search.THATsearch is what the second manner punishes, not the earlier entry. The essence of the crime is searching without consent, regardless of whether or not the entry was done with or without permission.


Q: So he is liable for the search in the living room, but not in the other rooms? Yes Q: Suppose that while waiting for you, he opened several cabinets and drawers in your house, and was able to seize an unlicensed gun and shabu. Was the search valid? No, the items were not in plain view and are consequently inadmissible as evidence Q: Under the 3rd manner of commission (entering surreptitiously, refusing the leave the premises after having been required to do so), what consummates the crime? Refusal to leave the premises Q: What do you mean by ‘surreptitiously entering’? Entering secretly, or without the knowledge of the owner Q: Is the liability here for entry? No, it is for the refusal to leave after effecting entry Q: Give an example Q: If the entry was made through the main door which was closed but was not locked, and the owner required the officer to leave, which the officer did, is the he still liable? Yes, under the 1st manner of commission

ART.129 MALICIOUSLY OBTAINED SEARCH WARRANT AND ABUSE IN THE SERVICE OF A LEGALLY OBTAINED WARRANT Q: How is this committed? 1. Procuring a search warrant without just cause; or 2. Exceeding authority by using unnecessary severity in executing a search warrant legally obtained Q: Who may commit this? Public officers/employees vested with authority to procure or execute a search warrant Q: When may it be said that there is no ‘just cause’? By applying the Test of Lack of Cause, when perjury can be imputed on the person who executed or applied for the warrant

Q: Is perjury a necessary crime in committing the offense of maliciously obtaining a warrant? Yes Q: Does that make it a complex crime under Art.48? No, they remain separate crimes Q: What is your legal basis for saying that? By direct provision of law, Art.129 makes it a separate crime (‘In addition to… xxx’) Q: Give examples of other crimes which, by direct provision of law, may not be complexed under Art.48? -Direct Bribery (Art. 210) -Maltreatment of Prisoners (Art. 235)

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Q: What do you mean by ‘perjury’? Executing a false affidavit or making a false statement under oath (‘simply stated, it is malicious if the it based on false facts –Atty A.)

CRIMINAL LAW II 28 K notes -Usurpation of Real Rights (Art. 312) Q: What are the 2 kinds of complex crimes under Art. 48? 1. An offense is a necessary means for committing another offense; 2. A single act results in two or more grave or less grave offenses Q: Suppose NBI agents, through a false affidavit, procured a search warrant. During the search, they destroyed several furniture, committed acts of lasciviousness against the daughter of the owner and kicked the son. What crimes were committed? 1. Maliciously obtaining a search warrant 2. Perjury 3. Physical Injuries 4. Malicious Mischief (resulting in destruction of property) 5. Acts of lasciviousness *all separate crimes Q: Suppose you had a persistent suitor whom you don’t like and so rejected. He turned out to be an NBI officer. To get back at you, he caused an application for a search warrant against your brother for keeping firearms in your house, which is not true. The warrant was issued. What crimes may he be liable for? 1. Maliciously obtained search warrant and 2. Perjury *separate crimes Q: Suppose he came to you and told you that unless you answer him, he will implement the warrant. In order to save your brother, you answered him. Is he still liable for procuring a warrant without just cause? Yes, the crime is already consummated. The warrant need not be implemented for liability to attach. Q: Suppose that when he applied for a search warrant, he had no legal cause, but when the warrant was served, an unlicensed firearm was found beneath the pillow of your brother. May the officer still be liable for procuring a search warrant without just cause? No, not anymore Q: NBI agents, after conducting a surveillance operation, applied for a warrant. The application contained 2 offenses: violation of the CDDA and Illegal possession of firearms. The judge issued the search warrant. The agents raided the shabu lab and were able to seize several shabu paraphernalia and 50 unlicensed firearms. The same were deposited in the custody of the NBI. The items were sought to be used as evidence in court. Are they admissible? No, the warrant was not lawfully obtained, the application contained 2 offenses. ‘No warrant shall issue except for a single offense’ (Rule 126, Revised Rules of Court)

*NB: The rule on the validity of a search warrant is strictly construed against the State. This is because a warrant is the state’s most potent weapon for intruding into the privacy of a person. When a warrant is illegally obtained, all evidence seized by virtue of that warrant are tainted (fruits of the poisonous tree) and may not be used as evidence against the accused, regardless of their relevance or materiality to the case. Q: A warrant was issued by the RTC for the search of a house suspected to be a shabu lab. The things to be seized were particularly described and thereafter, the NBI agents conducted the search. They saw an unlicensed firearm which was not mentioned in the search warrant. They seized the same. A corresponding case for illegal possession of firearm was filed. Is the evidence admissible? Yes. The seizure of the unlicensed firearm was done because a crime was then being committed in the presence of the NBI agents and the object of the crime was the unlicensed firearm.

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Q: Even if the evidence is vital to the case and would prove the accused’s guilt beyond reasonable doubt? Yes, even if


Q: You’re saying that a continuing crime was being committed? What crime? Yes – illegal possession of firearm Q: A search warrant was issued for shabu and other paraphernalia. After digging around in the back of the house, the agents found unlicensed firearms. Are the same admissible? No, the firearms were not seized by virtue of a lawful search, they were also not within the ambit of the plain view doctrine Q: What are the instances when a warrantless search is allowed? -Consented Searches -Searches incidental to lawful arrests -Plain view -Stop-and-Frisk -Searches of moving vehicles or vessels -Searches pursuant to building, sanitary or safety (i.e.: fire) regulations -Searches pursuant to violations of customs laws

Q: Under the second manner (abuse in the service of a warrant), suppose that in the implementation of a SW lawfully obtained, an officer with his rifle hit an occupant who did not even resist the search to begin with. The occupant died. What crime/s were committed? 1. Art.129(2) – abuse in the service of a warrant; and 2. Homicide *separate crimes Q: Suppose one of the agents destroyed your things during the implementation of a search warrant lawfully obtained. What crime/s were committed? 1. Abuse in the service of a warrant; and 2. Malicious mischief *separate crimes Q: Does the law require that for abuse to be committed, the search warrant must first be lawfully obtained? Yes Q: On its face, may the warrant be presumed valid? Yes, the warrant enjoys the presumption of validity since it was issued by the court Q: What constitutional right is sought to be safeguarded by this provision? The right against unreasonable searches and seizures

PEOPLE v. SINOC 275 SCRA 357 Narvasa, C. J. FACTS: Isidoro Viacrusis was motoring on a company Pajero, driven by Tarsisio Guijapon. As they approached the public cemetery of Claver, several armed men stopped them. Claiming to be New People’s Army members, the men boarded the vehicle and ordered Guijapon to proceed. Once in Barobo, Surigao del Norte, the armed men ordered Viacrusis and Guijapon to alight, led them with their hands bound behind their backs to a coconut grove, and shot them. Viacrusis survived. Witness Marlyn Legaspi saw the victims, and the Pajero, which left the scene. The police, acting on a tip-off by a secret informant, went to the Bliss Housing Project where they found Danilo Sinoc approaching the stolen Pajero, and found on his person the keys to the

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*NB: NOT the right to privacy, do NOT say ‘right to privacy’ and ruin your recit streak :)

CRIMINAL LAW II 30 K notes vehicle. Sinoc was arrested. 4 months after the arrest, Sinoc was brought to the Public Attorney’s Office where police asked Atty. Alfredo Jalad for permission to take Sinoc’s statement in writing. Sinoc confessed to the occurrences leading up to his arrest after he was informed of his rights by Atty. Jalad. The former was then brought to the City Prosecutor that he might take oath on his statement. After having ascertained the voluntariness of the affidavit, the Prosecutor affixed his signature. During trial, Sinoc proferred an alibi and alleged further that he was not informed of his constitutional rights during custodial interrogation and that he was made to sign the affidavit of confession under duress. ISSUE: Was there a valid warrantless arrest? HELD: YES. An arrest without a warrant may be liawfully effected by a peace officer when an offense has just been committed and he has personal knowledge of the facts indicating that the person to be arrested has committed it. There is no question that the police were aware that an offense had just been committed, that an informant saw the Pajero and that Sinoc had the key to the vehicle. Sinoc’s link to the stolen vehicle was palpable and the officers had no alternative save to arrest him. It was their clear duty to do so, the omission of which would have been inexcusable.

- oOo – PEOPLE v. SALVATIERRA 276 SCRA 55 Kapunan, J. FACTS: Charlie Fernandez was walking towards the direction of Quiapo, along M. de la Fuente Street when he was met by 4 persons, one of whom was David Salvatierra. Salvatierra lunged at Fernandez with a bladed instrument, hitting him in the chest. Charlie Fernandez died of his wound. The incident was witnessed by Milagros Martinez, who at the time, was afraid and told no one save for her daughter. Meanwhile, Marciano Fernandez, Charlie’s father, reported the death of his son to the Western Police District (WPD) where an advance information was prepared, indicating that 4 unidentified persons perpetrated the crime. 3 months after the stabbing, David Salvatierra was apprehended for causing a commotion along Miguelin Street, Sampaloc, Manila. The arresting officers found out that he was a suspect in the killing of Charlie Fernandez and turned him over to the WPD. Salvatierra was charged with murder and he pleaded not guilty. The prosecution presented Milagros Martinez, who had been persuaded to testify by Marciano Fernandez, and the trial court found Salvatierra guilty as charged. On appeal, Salvatierra assigns as error the trial court’s failure to find that the warrantless arrest for the offense of malicious mischief – which led to his detention for the alleged murder of Charlie Fernandez – was unconstitutional.

Were the irregularities in the warrantless arrestof David Salvatierra for the crime of murder deemed waived by his failure to raise them before entering his plea? HELD: YES. Accused-appellant Salvatierra is estopped from questioning his arrest considering that he never raised it before entering his plea. Any objection involving a warrant of arrest or in the procedure in the acquisition of jurisdiction over the person of an accused must be made before he enters his plea. Otherwise, the objection is deemed waived. Consequently, any irregularity attendant to his arrest, if any, had been cured by his voluntary submission to the jurisdiction of the trial court when he entered his plea and participated during trial.

- oOo –

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ISSUE:

CRIMINAL LAW II 31 K notes PEOPLE v. FLORES 358 SCRA 319 Ynares-Santiago, J. FACTS: Samson Sayam was last seen drinking beer in the company of Sgt. Winnie Tampioc, and Citizens Armed Force Geographical Unit (CAFGU) members Aaron Flores, Sulpecio Silpao and Edgar Villeran. They left the store where they were drinking and walked towards the direction of the military detachment headquarters, after which, witnesses heard gunshots. Despite diligent efforts by Sayam’s mother and relatives to locate him, he has not been found. The prosecution contends that Sayam was kidnapped and illegally detained pursuant to a conspiracy among the accused. The trial court rendered a decision acquitting Sgt. Tampioc on the grounds of reasonable doubt, and convicting Flores, Villeran and Silpao of the crime of kidnapping and serious illegal detention. ISSUES: 1. Did the trial court err in ruling that the accused-appellants committed kidnapping and serious illegal detention? 2. Are the accused guilty of arbitrary detention under Art.124? HELD: 1. YES. The crime of kidnapping and serious illegal detention has the following elements: (a) the 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; and (d)in the commission of the offense, the following circumstances are present: (i) the kidnapping or detention lasts for more than 3 days; (ii) it is committed simulating public authority; (iii) any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or (iv) the person kidnapped is a minor, female, or public officer. Accusedappellants, being members of the local Citizen Armed Force Geographical Unit (CAFGU), are not private individuals but public officers. As such, they can only be held liable for the crime of arbitrary detention.

NOTES *On warrants. A question was once asked in Constitutional Law II (under the coverage of ‘Search and Seizure’) whether or not a warrant could in fact contain more than one offense. The class suffered a shotgun round, and was made to say ‘yes’ despite deep instincts to the contrary. It was said that a warrant could in fact contain more than one offense IF it was issued for (1) complex crimes; or (2) special complex crimes. We asked Atty. A for clarification and he spent 30 whole minutes drilling it into us: a warrant CANNOT – EVER – contain more than A SINGLE offense. *Notwithstanding the presence of art.48, RPC on complex crimes, a warrant may still NOT contain two or more offenses. The complexing is done by the PROSECUTOR, NOT the arresting officers; and it’s done AFTER a warrant has been served because the Prosecutor looks at the evidence obtained through that very warrant and determines the degree of perversion – and hence, culpability – of the

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2. NO. Detention is defined as the actual confinement of a person in an enclosure or in any manner depriving him of his liberty. The records show no evidence sufficient to prove that Samson Sayam was detained arbitrarily by accused-appellants. While the prosecution witness testified that they were seen walking with Sayam toward the direction of the detachment headquarters, there is no evidence that he was actually confined there or anywhere else. The fact that Sayam has not been seen or heard from since he was last seen with the accused-appellants does not prove that he was detained and deprived of his liberty. The fact of detention, whether illegal or arbitrary, was not clearly established by credible evidence. Likewise, there was no proof that there was actual intent on the part of the accused-appellants to deprive Sayam of his liberty. That Sayam is missing up to this date cannot be a basis for the trial court to render conviction. Mere suspicion is insufficient to convict the accused-appellants.

CRIMINAL LAW II 32 K notes accusedfollowing the formula: did one offense result in two or more grave or less grave offenses? Was one a necessary means to commit the other? Beyond that, complexing cannot be assumed. Besides, what is the basis of the arresting officers to apply for a warrant in connection with a complex or special complex crime? And what basis would the issuing Judge have to find probable cause for a complex or special complex crime? ‘If I were counsel for the defence, I would move for the nullification of your warrant. The best remedy is to apply for TWO separate warrants’ –Atty. A

ART.130 SEARCHING DOMICILE WITHOUT A WITNESS Q: How is this committed? 1. The offender = public officer/employee 2. He is armed with a search warrant legally obtained 3. He searches the domicile, papers or other belongings of any person 4. The owner or any member of his family, or 2 witnesses residing in the same locality are not present Q: What is the order of the people who must witness the search? 1. Homeowner 2. Members of the family who are of sufficient age and discretion 3. Responsible members of the community (2) Q: Who may commit this? Public officers/employees authorized to conduct a search Q: Can you give an example Q: Are 2 housemaids considered ‘witnesses’, in the event that the owner and blood relatives are not present? Yes Q: 2 Barangay tanods? Yes Q: 2 members of the police team? No Q: Suppose the owner was not present, but his 2 daughters aged 12 and 8 respectively were there. May the search be made? No

Q: What about 2 neighbors whom you were not in good terms with? They may be witnesses. The law does not require that the owner be on good terms with them.

SECTION THREE – PROHIBITION, INTERRUPTION AND DISSOLUTION OF PEACEFUL MEETINGS

ART.131 PROHIBITION, INTERRUPTION AND DISSOLUTION OF PEACEFUL MEETINGS

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Q: Why not? The members of the family must be of sufficient age or discretion

CRIMINAL LAW II 33 K notes Q: How is this committed? 1. By prohibiting or interrupting without legal ground, the holding of a peaceful meeting; or by dissolving the same 2. By hindering any person from joining any lawful association or from attending any of its meetings 3. By 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 Q: Under the 1st mode of commission (prohibiting or interruption the holding of an assembly without legal ground/dissolving the same), what constitutional right is safeguarded? The right to peaceful assembly Q: Is this right absolute? No Q: May it be regulated? How? Yes, it may be regulated. The regulation may be done in exercise of police power. Q: If the offender is a private individual, what crime does he commit? Disturbance of Public Order (Art. 153) Q: If the meeting is no longer peaceful, may it be dissolved? Yes Q: If the meeting that was interrupted or dissolved is a session of the city council, and the dissolution is done by a public officer, is Art. 131 applicable? No, the crime in this case is a crime against a legislative body, not punishable under this article Q: If the officer stops a meeting because of a city ordinance, is he liable? No Q: suppose he does so in a private residence? He is liable Q: May a police officer stop a peaceful meeting taking place in a freedom park? No. By law (BP 880), meetings in freedom parks need not be conducted pursuant to a permit. The officer has no lawful cause to interrupt the peaceful meeting Q: What is a freedom park? An area established by law as such, where one can peaceably assemble at any time without having to procure a permit from the government for that purpose

Q: Under what law? Batas Pambansa 880 – The Public Assembly Act of 1985 Q: In what manner are you liable? For conducting an assembly without a permit and in an area not designated as a freedom park Q: What if you conducted your rally in Liwasang, Bonifacio? We are not liable – The area is a designated freedom park Q: If you conducted it in front of the San Beda gate, may you be arrested without a warrant? Yes

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Q: Suppose you and your classmates are failing Criminal Law 2. You assembled in front of San Beda without a permit, demanding the removal of Atty. Amurao. Are you liable? Yes

CRIMINAL LAW II 34 K notes Q: You decided to start the rally from España to Mendiola. It was a spontaneous decision. May you be intercepted anywhere between those areas and arrested? Yes Q: What is the reason for requiring a permit? The state seeks to ensure the maintenance of public order and safety and does so in exercise of its sovereign police power Q: You conducted a rally at a freedom park. In the course of the rally, you uttered libellous speeches. May the rally be dispersed? Yes, it has ceased to be peaceful Q: But it was done in a freedom park What is controlling as far as the dispersal goes is the nature of the rally. Even if it was done in a freedom park, it had ceased to be peaceful. A freedom park may be used subject to the qualification that the assembly must be a peaceful one Q: So the right to a peaceful assembly in a freedom park is also not absolute? Yes, it is not absolute. The right to use a freedom park is also regulated Q: Under the 2nd mode of commission (hindering a person from joining any lawful association/attending any of its meetings), what constitutional right is safeguarded? The right to association Q: What are the 2 punishable acts under this manner of commission? 1. Hindering someone from joining a lawful association 2. Preventing him from attending any of its meetings Q: Give an example of the 1st act Q: Your distant relative, a police officer, prevented you from joining an unrecognized fraternity within San Beda College of Law. Is he liable? Yes, the fraternity is not necessarily an unlawful association, notwithstanding the fact that San Beda Law does not recognize it Q: Same facts, except that the organization you wanted to join was the Abu Sayyaf. Is your relative liabel? No Q: And if you wanted to join the National Democratic Front-New People’s Army (NDF-NPA)? He is not liable Q: Give an example of the 2nd manner of commission

Q: Under the 3rd manner, what constitutional right is safeguarded? The right to petition the government for redress of grievances

BATAS PAMBANSA BLG. 880 THE PUBLIC ASSEMBLY ACT OF 1985 Outline of Definitions  Public Assembly:  Public Place:Includes any highway, boulevard, avenue, road, street, bridge, or other thoroughfare,

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Q: Give an example of the 3rd manner of commission

CRIMINAL LAW II 35 K notes park, plaza, square and/or any open space of public ownership where the people are allowed access  Freedom Parks: Parks duly established by every City or Municipality where demonstrations and meetings may be held at any time without the need of any prior permit  Maximum Tolerance: The highest degree of restraint that the military, police and other peacekeeping authorities shall observe during a public assembly or in the dispersal of the same  When Permits are required: organization and holding of a public assembly in a public place  No permits required for the use of freedom parks duly established by law  When the assembly is to be held on private property, the consent of the owner is needed

Salient Provisions  Sec.5 – Application Requirements: The application shall be in writing, shall include the names of the leaders/organizers; the purpose of the assembly; date, time, duration thereof; the place/streets to be used; and the probable number of persons participating; and the transport and public address system to be used. The application shall be filed with the office of the Mayor of the city of municipality in whose jurisdiction the intended activity is to be held, at least 5 working days before the scheduled activity.  Sec.6 – Action to be taken on the Application: The Mayor/any official acting in his behalf has the duty to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals and public health. The Mayor/official acting in his behalf shall act on the application within 2 working days from the date the application was filed, failing which, the permit shall be deemed granted. Should for any reason, the Mayor/official refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of the office of the Mayor and it shall be deemed to have been filed. If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial/modification of the permit, he shall immediately inform the applicant who must be heard on the matter. Action on the permit shall be in writing and served on the applicant within 24hrs. If the mayor/acting official denies the application/modifies the terms thereof, the applicant may contest the decision in an appropriate court of law.

 Sec.10 – Police Assistance when requested: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; and they shall observe the policy of Maximum Tolerance. They shall not carry any kind of firearms, but may be equipped with baton, riot sticks, and shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards. 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.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 it as follows: At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention of the leaders of the public assembly and ask the latter to prevent any possible disturbance. 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, the ranking officer shall audibly warn the participants that if the disturbance persists, the assembly will be dispersed. If the violence/disturbance does not stop or abate, the ranking officer shall audibly

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 Sec.9 – Non-interference of law enforcement authorities:Law enforcement authorities shall not interfere with the holding of a public assembly. To adequately ensure public safety, a contingent under the command of a responsible police officer may be detailed and stationed at least 100 meters away from the area of activity to maintain peace and order at all times.

CRIMINAL LAW II 36 K notes issue a warning to the participants and after allowing a reasonable period of time to lapse, shall immediate order it to forthwith disperse. No arrest of any leader, organizer or participant shall also be made during the public assembly unless he violates during that assembly a law, statute, ordinance, or any provision of this Act. Such arrest shall be governed by Art.125 of the RPC as amended. Isolated acts/incidents of disorders or breach of the peace during the assembly shall not constitute a ground for dispersal.  Sec.13 – Prohibited Acts:The following shall constitute violations of this Act: a. The holding of any public assembly as defined in this act by any leader/organizer without having first secured that written permit where a permit is required, 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/attending an otherwise peaceful assembly b. Arbitrary and unjustified denial/modification of a permit in violation of the provisions of this Act by the Mayor or any other official acting in his behalf c. Unjustified/arbitrary refusal to accept or acknowledge receipt of the application for a permit d. Obstructing, impeding, disrupting, or otherwise denying the exercise of the right to peaceful assembly e. Unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the assembly f. Acts in violation of Sec.10 hereof g. Acts described hereunder, if committed within 100 meters from the area of activity of the public assembly or on occasion thereof: 1. Carrying of a deadly or offensive weapon/device such as firearm, pillbox, bomb and the like 2. Carrying of a bladed weapon and the like 3. Malicious burning of any object in the streets or thoroughfares 4. Carrying of firearms by members of the law enforcement unit 5. Interfering with or intentionally disturbing the holding of a public assembly, by the use of a motor vehicle, its horns, and loud sound systems.

ART.132 INTERRUPTION OF RELIGIOUS WORSHIP Q: How is this committed? 1. The offender = public official/employee 2. Religious ceremonies or manifestations of any religion are about to take place or are going on 3. The offender prevents or disturbs the same Q: Is it necessary that this be committed in an actual place of worship? No, the manifestations or ceremonies may be taking place outside a religious structure

Q: What are the circumstances qualifying the crime? The presence of violence or threats in the commission of the crime Q: Suppose there was a mass going on in Luneta. A public officer fired shots in the air and the people scattered. Is he liable? Yes Q: Suppose the mass was over and a politician was giving a speech He is no longer liable under Art.132 Q: Same facts. You learned of the mass in Luneta and you wanted to join. You were not allowed to join by a police officer guarding the entrance. Is he liable?

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Q: Give an example

CRIMINAL LAW II 37 K notes Yes, but under Art.131, not 132 Q: What constitutional right is safeguarded here? The Right to Freedom of Religion Q: Is a mere disturbance sufficient? No, the disturbance has to be notoriously offensive to the feelings of the faithful

ART.133 OFFENDING THE RELIGIOUS FEELINGS Q: How is this committed? Q: Who may commit it? Q: When is the act considered to be ‘notoriously offensive’? Q: Give an example Q: From whose viewpoint is the concept of ‘notoriously offensive’ judged? From the viewpoint of the offended party Q: The accused took a statue of the virgin mary and chopped it into pieces in front of a group that was praying. He considered the statue to be merely a piece of wood. Is he liable? Yes Q: Would such an act be considered notoriously offensive? Yes NATURE OF THE CRIME

PERSONS LIABLE

Prohibition, Interruption and Dissolution of a Peaceful Meeting (ART. 131)

Crime against the fundamental law of the State

Public Officers, Outsiders

Interruption of Religious Worship (ART.132)

Crime against the fundamental law of the state

Public Officers

LEGAL EFFECT OF A MISSING ELEMENT If not committed by a public officer, the crime is Tumults and Public Disorders or Grave Coercion If committed by a member of the meeting = Unjust Vexation If the meeting is not religious = Tumults or Alarms If the act is not notoriously offensive to the feelings of the faithful = Unjust Vexation If the offender is a private person who is not a member of the meeting = Disturbance of Public Order

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CRIME COMMITTED


Offending the Religious Crime against Public Feelings Order (ART.133)

Public Officers, Private Persons who are members of the meeting, Outsiders

If the crime is not Tumults = Alarms and Scandals If the meeting is illegal from the onset = Inciting to Rebellion

NOTES: *If the crime is conducted in a place devoted to a religious purpose, there is no need for an on-going and actual ceremony *Religious ceremonies… well… think: acts performed (not necessarily) inside the church, i.e.: processions and special prayers for burying the dead but NOT prayer rallies *The offensive acts must be directed against religious practice or dogma or a ritual of the same nature for the purpose of ridicule i.e.: mocking or scoffing at, or attempting to damage an object of religious veneration *There must be deliberate intent to hurt the feelings of the faithful. Mere arrogance or rudeness is not enough

CHAPTER ONE REBELLION, COUP D’ETAT, SEDITION AND DISLOYALTY

Q: How is this committed? 1. There is – a. A public uprising AND (*whatever you do, do NOT forget the conjunctive) b. A taking up of arms against the government 2. The purpose of the uprising or movement is either – a. To remove from the allegiance to said Government or its laws… i. The territory of the Philippines OR any part thereof (*do NOT forget the disjunctive); or ii. Any body of land, naval, or other Armed Forces b. To deprive the Chief Executive or Congress wholly or partially of any of their powers of prerogatives Q: Differentiate this from Treason

RE: Manner of Prosecution

TREASON (ART.114) Two-Witness Rule

REBELLION (ART.134) Ordinary Rules of Evidence

RE: Time of Commission

Time of War

Time of Peace

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ART.134 REBELLION OR INSURRECTION

CRIMINAL LAW II 39 K notes Q: Give an example of Rebellion in the Philippines Q: Can this be committed by a single person? No, it is a crime of masses Q: Who may be liable? The Leaders and the Participants Q: Suppose an NPA officer asked you to encash some of their checks and deliver the money to them. Are you liable? No, mere adherence to the enemy by giving them aid or comfort is NOT punishable in rebellion Q: Members of the NPA kidnapped a Chinese merchant and demanded ransom. Upon payment, the merchant was released and the ransom was used by the NPA to finance its activities. What crime/s was committed? Rebellion ONLY Q: Why is that? Because Rebellion ABSORBS common crimes committed in furtherance of its goals. It may not be complexed with those crimes in order to aggravate the liability of the accused *NB: Absorption of crimes is NOT synonymous with Complex Crimes. In complexing, the liability of the accused is the one for the greater offense. In Absorption, the liability is set by law and may not be aggravated by the commission of another crime. Why? Because penal laws should be construed liberally in favour of the accused and strictly against the State. That’s just the way it is. Q: Suppose the kidnappers distributed the ransom amongst themselves and did not remit the money to their higher-ups, what crime was committed? Kidnapping, the crime is not absorbed by rebellion because it was not committed in furtherance of the political goals of rebellion Q: The NPA ambushed the Governor and killed him for being corrupt. What crime was committed? Rebellion Q: May they be prosecuted for Murder? No, the crime is absorbed in Rebellion

Q: Factory employees organized themselves as an armed group and become so powerful they had a strike and declared their factory as being under their own laws. They killed 10 persons in the process. What crime was committed? Rebellion Q: Suppose the leader of the Rebellion is unknown. Who may be held liable? Any person who speaks for signs receipts for, or directs the Rebellion, or performs similar acts on behalf of the rebels Q: Will conspiracy to commit Rebellion make you liable? Yes Q: How about proposal to commit it? No

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Q: Suppose they raped the daughter of the Governor, What crime/crimes were committed? 1. Rebellion 2. Rape *separate, not absorbed – because the rape was not committed in furtherance of rebellion

CRIMINAL LAW II 40 K notes NOTES: *The success of a rebellion is immaterial. Whether it failed or not does not affect the liability of the accused *The purpose of rebellion is always political *The term ‘Rebellion’ is used when the object is to completely overthrow the government and supersede it *Insurrection refers to a movement which seeks merely to effect some change of minor importance to prevent the exercise of government authority with respect to particular matters or subjects *An actual clash of arms between government forces and the rebels is not necessary to convict the accused who is in conspiracy with others actually taking arms against the government *The purpose of the uprising must be shown although it is not necessary that it is actually achieved *Rebellion refers to the armed act of seeking a change of government without external participation *Actual participation here refers to rising publicly and taking up arms against the government. If there doesn’t happen to be a public uprising, the crime is direct assault *Mere giving of aid or comfort is not a criminal act in the case of rebellion. Merely sympathizing with the rebels is not considered as participation in the rebellion. There must be actual participation in the uprising. *There doesn’t have to be actual killing of any person. The mere threat of removing the Philippines from the control of the government through force or violence is sufficient *Rebellion cannot be complexed with other common crimes, HOWEVER, illegal possession of firearms in furtherance of rebellion is DISTINCT from the crime of rebellion. *Rebellion is a CONTINUING CRIME *A private crime (aka. crimes against chastity - note that RAPE is no longer a private crime by virtue of RA 8353) may be committed during rebellion

FACTS: Senate Minority floor leader Juan Ponce Enrile was arrested on the strength of a warrant issued on an information charging him and the spouses Rebecco and Erlinda Panlilio, and Gregorio Honasan for the crime of ‘rebellion with murder and multiple frustrated murder’ which they allegedly committed during the period of the failed coup attempt from November 29 to December 10, 1990. Enrile was taken and held overnight at the NBI Headquarters in Taft Avenue without bail, none having been recommended by the Prosecutor. The following morning he was brought to Camp Tomas Karingal in Quezon City, and given over to the custody of the Superintendent of the Northern Police District. Enrile filed for Habeas Corpus, alleging that he was being held to answer for a criminal offense not contained in the statute books, that he was charged in an information for which no complaint was initially filed or preliminary investigation conducted, that he was denied his right to bail and arrested and detained on the strength of a warrant issued without the judge having first personally determined the existence of probable cause. ISSUES: 1. Can Senator Enrile be held liable for the complex crime of ‘Rebellion with murder and multiple frustrated murder’? 2. Was the arrest warrant issued without the judge’s personal determination of probable cause?

HIRYU KIMIKO OKUBO

PONCE-ENRILE v. SALAZAR Narvasa, J.


HELD: 1. NO. As held in the Hernandez case, rebellion cannot be complexed with any other offense committed on the occasion thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes rebellion. The information filed against him does in fact charge an offense. Read in the context of Hernandez, the information charges Enrile with a crime defined and punished by the Revised Penal Code: simple rebellion. 2. NO. It is sufficient that the Judge follows established procedure by personally evaluating the report and supporting documents submitted by the Prosecutor. Merely because respondent Judge Salazar had what some might consider a relatively brief period (1 hour and 20mins) within which to comply with the duty gives no reason to assume that he had not, or could not have so complied; nor does that single circumstance suffice to overcome the legal presumption that official duty has been regularly performed.

- oOo – PONCE-ENRILE v. AMIN Gutierrez, Jr., J. FACTS: Together with the filing of an information charging Sen. Enrile with ‘Rebellion complexed with Murder and Multiple Frustrated Murder’ in the Regional Trial Court of Quezon City, Government Prosecutors filed another information charging him with a violation of Presidential Decree 1829. The information alleged that Enrile, who had reasonable ground to believe or suspect that exColonel Gregorio Honasan had committed a crime, voluntarily concealed the ex-Colonel in his own residence in Dasmariñas Village, Makati. Enrile filed an omnibus motion to quash or dismiss on the ground, among others, that the pending charge of rebellion complexed with murder and frustrated murder precluded the prosecution of a violation of PD 1829. His motion was denied. The respondent Judge upheld the prosecution’s contention that simultaneous proceedings are permissible because Rebellion is based on the Revised Penal Code; where the instant case is based on a special law. Enrile appealed to the Supreme Court, and the High Court issued a Temporary Restraining order enjoining proceedings in the instant case. ISSUE: Can Senator Enrile be simultaneously charged withobstruction of justice, a violation of Presidential Decree 1829; and the Revised Penal Code, with regards to Rebellion?

NO. If a person cannot be charged with the complex crime of rebellion for the greater penalty to be applied, neither can he be charged separately for two different offenses where one is a constitutive or component element of, or committed in furtherance of rebellion. Being in conspiracy with Honasan, Enrile’s alleged act of harbouring/concealing was for no other purpose but to further the crime of rebellion, thus constituting a component thereof. The crime of rebellion consists of many acts. The acts committed in furtherance of it, though crimes in themselves are deemed absorbed in the one single crime of rebellion. They cannot, therefore, be made the basis of separate charges. The rationale remains the same: all crimes, whether punishable under a special law or general law, which are components or ingredients, or committed in furtherance thereof, become absorbed in rebellion and cannot be isolated and charged as separate crimes. The theory of absorption in rebellion cases must not confine itself to common crimes but also to offenses under special laws which are perpetrated in furtherance of the political offense.

- oOo –

HIRYU KIMIKO OKUBO

HELD:

CRIMINAL LAW II 42 K notes UMIL v. RAMOS Per Curiam FACTS: Consolidated cases for Habeas Corpus. RE: ROLANDO DURAL Ronnie Javellon was arrested without a warrant while he was confined at the Saint Agnes Hospital and receiving treatment for gunshot wounds. The doctors alerted the military to his presence there. He was identified the day before as being one of the people who shot 2 CAPCOM policemen in their patrol car. Javellon later turned out to be Rolando Dural, a known NPA member. RE: AMELIA ROQUE, WILFREDO BUENAOBRA, DOMINGO ANONUEVO, RAMON CASIPLE, AND VICKY OCAYA The accused were arrested after military agents received information from a former NPA member that two houses – one occupied by Renato Constantine and located in Molave Street, Marikina Heights, Marikina; and one occupied by Benito Tiamzon – were being used as NPA safehouses. The houses were put under military surveillance. Pursuant to a search warrant, Renato Constantine was confronted. He could not produce any permit for the firearms in his house, as well as the ammunitions, radio and other equipment in the residence. He also admitted that he was a ranking member of the NPA. Wilfredo Buenaobra arrived at the safehouse and had letters for Constantine and other rebels. He also admitted to being an NPA courier. Amelia Roque was arrested in consequence to Buenaobra’s arrest because he had in his possession papers leading to her whereabouts. Subversive documents and live ammunition were found in her possession and she admitted to belonging to the group. Domingo Anonuevo and Ramon Casiple arrived at the safehouse and agents frisked them, finding subversive documents, and loaded guns without permits. Vicky Ocaya was arrested without a warrant when she arrived at the house of Benito Tiamzon. Tiamzon’s house was the subject of a search warrant. Ammunition and subversive documents were thereafter found in Ocaya’s car. RE: DEOGRACIAS ESPIRITU The accused was arrested without a warrant on the basis of the attestation of certain witnesses that at 5:00pm, at the corner of Magsaysay Boulevard and Velencia Street, Sta. Mesa, Manila, and on November 22, 1988, Espiritu spoke at a gathering of drivers and sympathizers, saying ‘Bukas tuloy ang welga natin, hanggang sa magkagulo na.’ RE: NARCISO NAZARENO Romulo Bunye II was killed by a group of men in Alabang, Muntinlupa. 14 days later, Ramil Regala, one of the suspects, was arrested and he pointed out Narciso Nazareno as one of his companions during the killing. That same morning, Nazareno was arrested without a warrant. ISSUE: Were the arrests validly effected?

RE: ROLANDO DURAL YES, the warrantless arrest was valid. He was committing an offense when he was arrested – being an NPA member. The NPA is an outlawed organization and membership therein is a continuing crime. He did not cease to be a subversive for purposes of arrest simply because he was confined at St. Agnes Hospital. Military agents were dispatched on confidential information to verify if an NPA member had indeed been admitted for a gunshot wound. The information was based on actual facts, supported by circumstances sufficient to engender a belief that an NPA member truly was in that hospital. RE: AMELIA ROQUE, WILFREDO BUENAOBRA, DOMINGO ANONUEVO, RAMON CASIPLE, AND VICKY OCAYA YES, their arrests were all valid. They were searched pursuant to search warrants and were found with unlicensed firearms, explosives and ammunition. They were caught in flagrante

HIRYU KIMIKO OKUBO

HELD:

CRIMINAL LAW II 43 K notes delicto. The reason for all their arrests was that military authorities received information about 2 safehouses being used by the NPA, with exact locations and the names of Renato Constantine and Benito Tiamzon. At the time of their arrests, they had ownership of unlicensed firearms, ammunition, subversive documents. They also admitted to membership in the NPA. There was probable cause to support their warrantless arrests. RE: DEOGRACIAS ESPIRITU YES, the warrantless arrest was valid. He was arrested not for subversion but for uttering words which the arresting officers believed to constitute Inciting to Sedition. The case was mooted anyhow, considering the failure of the investigating officers to appear at the re-investigation. RE: NARCISO NAZARENO YES, the warrantless arrest was valid. Although Nazareno’s arrest was effected 14 days later, the arrest falls under Sec.5(b), Rule 113 of the Rules of Court since it was only then that the police came to know that Nazareno was probably one of those guilty in the killing of Bunye II. The arrest had to be made promptly, even without a warrant, to prevent possible flight.

ART.134-A COUP D’ETAT Q: Who is the offender here? Member of the military, police; public officers or employees

REBELLION (ART.134) Public Officers/Employees and Private Individuals

COUP D’ETAT (ART.134-A) Public Officers/Employees, Military men, Police Officers

RE: Manner of Commission

Rising Publicly and Taking Up Arms against the Government

A Swift attack accompanied by violence, intimidation, threat, strategy or stealth

RE: Purpose of Commission

To remove from allegiance to the Government the territory of the Philipines or any part thereof, or any body of land, naval or other armed forces;

Seizing or diminishing state power

RE: Persons Liable

To deprive the Chief Executive or Congress, wholly or partially, of any of their prerogatives or powers RE: Target of Attack

The Government

Q: May coup d’etat be commited by a single person? Yes Q: May it be committed secretly? Yes (use of stealth)

Authorities of the Philippines, Military Camps, Installations, Communications Networks, Public Utilities or other facilities

HIRYU KIMIKO OKUBO

Q: Differentiate this with Rebellion


Q: May a private individual be held liable for coup d’etat? No

Overt Acts

REBELLION (ART.134) Crime Against Public Order

COUP D’ETAT (ART.134-A) Crime Against Public Order

SEDITION (ART.139) Crime Against Public Order

Levying war against the government;

Public Uprising;

Swift attack accompanied by violence, intimidation, threat, strategy or stealth

Rising publicly or tumultuously

Seizing or diminishing state power

To prevent the promulgation or execution of any law or the holding of any popular election;

Adherence to the enemies, giving them aid or comfort

Purpose or Objective

To deliver the government, during time of war, to the enemy

Taking up arms against the government

To remove from allegiance to the Government the territory of the Philipines or any part thereof, or any body of land, naval or other armed forces; To deprive the Chief Executive or Congress, wholly or partially, of any of their prerogatives or powers

*NB: ‘tumultuously’ refers to the presence of more than 3 (i.e.: at least 4) armed men or men provided with means for violence

To prevent the National Government or any provincial/municipal government or any public officer thereof from freely exercising its or his functions; or to prevent the execution of any administrative order; To inflict any act of hate/revenge upon the person or property of any public officer/employee; To commit, for any political or social end, any act of hate/revenge against private persons or any social class; To despoil, for any political or social

HIRYU KIMIKO OKUBO

Nature of the Crime

TREASON (ART.114) Crime Against National Security

CRIMINAL LAW II 45 K notes end, any person, municipality or province, or the National Government if all or any part of its property. Q: Conspiracy to commit rebellion, how is this committed? Q: Proposal to commit rebellion, how is this committed? Q: 5 members of the NPA ambushed and killed a company manager because he was responsible for the dismissal of several workers. The workers were dismissed for union busting. What crime was committed? Rebellion Q: Prof. Amurao flunked ½ of the class. He received a threat to change the grades or else he would be killed. He refused to change the grades. The following day, he was ambushed by an NPA member who happened to be the brother of one student who failed. What crimes were committed? 1. Rebellion (brother was an NPA member, rebellion is a continuing crime) 2. Grave Coercion 3. Murder complexed with Direct Assault *All separate, not absorbed by rebellion because the common crimes were not committed in furtherance of rebellion Q: The provincial governor was liquidated by the Alex Boncayao Brigade (an NPA liquidation squad – think: people who kill other people for the NPA). The governor had been a known drug lord. He was found and killed by the Brigade. What crime was committed? Rebellion Q: 2 Victory Liner Buses were burned by the NPA because the management of Victory refused to pay revolutionary taxes. 2 passengers died. What crime was committed? Rebellion

ART.135 PENALTY FOR REBELLION, INSURRECTION OR COUP D’ETAT Q: Who are liable? 1. Any person who a. Promotes b. Maintains c. Heads a rebellion or insurrection 2. Any person who, while holding any public office or employment, takes part therein by a. Engaging in war against the forces of the government b. Destroying property or committing serious violence c. Exacting contributions or diverting public funds from the lawful purpose for which they have been appropriate 3. Any person merely participating or executing the command of another in a rebellion

HIRYU KIMIKO OKUBO

Q: The sister of an NPA officer was raped by the commanding officer of the AFP. The prosecution for rape was dismissed. To avenge the injustice, the NPA officer killed the military commander. What crime/s did he commit? 1. Rebellion 2. Murder *Separate, because the murder was committed for a personal motive


*NB: Persons Liable, as far as their occupations are concerned: A. PERSONS IN GOVERNMENT SERVICE Anyone who leads, directs, or commands others to undertake a coup d’etat B. PERSONS NOT IN GOVERNMENT SERVICE Anyone who participates or in any manner, supports, finances, abets or aids others in the commission of coup d’etat NOTES *Serious violence is that inflicted upon civilians which may result in homicide. It is not limited to hostilities against other military forces *Diversion of Public Funds is Malversation, but when committed here, it is absorbed by rebellion. *The public officer, to be liable, must take active part. Mere silence or omission is not punishable in rebellion *Common crimes committed for profit or personal motives, without any political motivation, would be separately punished and not absorbed in rebellion

ART.136 CONSPIRACY AND PROPOSAL TO COMMIT COUP D’ETAT, REBELLION OR INSURRECTION *NB: It helps to know by heart the definition of ‘conspiracy’ and ‘proposal’ Q: Suppose military officers met outside the PH and agreed and decided to seize power from the present administration. Upon arrival in the PH, they were arrested and prosecuted for conspiracy to commit a coup d’etat. Are they liable? No, the crime was committed outside the country. It cannot be prosecuted here because it is not one of the exceptions to the rule on territoriality, as enumerated under Art.2 of the RPC

ART.137 DISLOYALTY OF PUBLIC OFFICERS OF EMPLOYEES

Q: Give an example NOTES *Art.137 presupposes the existence of rebellion. No rebellion, no crimes committed under Art.137 *The public officer/employee so charged must not be in conspiracy with the rebels or coup plotters else his liability is under art.135/art.136 *If the position was accepted in order to protect the people, the official is not liable *The collaborator must not have tried to impose the wishes of the rebels on the people

HIRYU KIMIKO OKUBO

Q: How is this committed? 1. By failing to resist a rebellion by all the means within one’s power 2. Continuing to discharge the duties of office under the control of the rebels 3. Accepting appointment to office under the rebels


ART.138 INCITING TO REBELLION OR INSURRECTION Q: How is this committed? 1. The offender does not take arms, nor is he in open hostility against the government 2. He incites others to the execution of any of the acts of rebellion 3. The inciting is done by means of speeches, proclamations, writings, emblems, banners or other representations tending to the same end Q: Suppose a member of the NPA was going around, recruiting members. What crime was committed? Rebellion Q: An ordinary barangay leader, fed up with the present administration, gave speeches aimed at persuadingor convincing people to join him in the fight against the government. What crime did he commit? Inciting to rebellion Q: Suppose the audience before whom he spoke was finally induced and persuaded to join the movement to overthrow the government. What crime did he commit? Rebellion The persons induced will be principals by direct participation The offender is a principal by inducement in the crime of rebellion Q: And if the audience was not convinced? What are the respective liabilities? The speaker = Inciting to Rebellion The audience = No liability Q: You were walking along Makati, naked, with a placard saying ‘Down with the Aquino Administration’. You were distributing flyers containing pictures of a corrupt government, and inviting the reader to join you and overthrow the government. What is your liability? Inciting to Rebellion

PROPOSAL TO COMMIT REBELLION (ART.136) The person making the proposal has decided to commit the rebellion, i.e.: to take active part in it

INCITING TO REBELLION (ART.138) It is not required that the offender has decided to actually commit rebellion

The person who proposes the execution of the crime uses secret or covert means

The inciting is done publicly

Q: Give examples (*note: examples, plural) of military camps or reservations -The army reservation in Fort Bonifacio -The Philippine Military Academy -Villamor Air Base -Camp Crame -Camp Dangwa -Navy Headquarters -Poropoint in San Fernando, La Union Q: Give examples of Communications Networks *NB: this may include privately-owned companies (i.e.: PLDT, Smart, Globe, ABS-CBN etc) Q: Give examples of Public Utilities *NB: ‘public’ – mind the examples, MERALCO is now privately-owned, btw -MAYNILAD

HIRYU KIMIKO OKUBO

Q: Distinguish Art. 136 from Art. 138

CRIMINAL LAW II 48 K notes -NAIA -DMIA Q: Death occurring during a coup d’etat – is this a separate crime? No, it is absorbed. Violence is an element of coup d’etat Q: When may civilians be liable for coup d’etat? When they participate, support, finance, aid or abet the coup

ART.139 SEDITION *NB: Pay close attention to this one, it comes up during Midterm Exams Q: How is this committed? 1. The offenders rise – a. Publicly (*NB: of there is NO public uprising, the crime = tumults and other disturbances of public order); AND (*NB: conjunctive – very important) b. Tumultuously (vis-a-vis rebellion where there must be a ‘taking up of arms against the government) 2. They employ threat, intimidation, or other means outside of legal methods 3. The offenders employ any of those means to attain any of the following objects: a. To prevent the promulgation or execution of any law OR the holding of any popular election b. To prevent the national government, or any provincial or municipal government, or any public official thereof from freely exercising its or his functions, OR prevent the execution of any administrative order c. To inflict any act of hate or revenge upon the person or property of any public officer or employee d. To commit for any political or social end, any act of hate or revenge against private persons or any social class (*NB: even private individuals may be offended parties, not just the government or public officials) e. To despoil for any political or social end, any person, municipality, or province, or the national government of all its property or any part thereof Q: When is a public uprising deemed ‘tumultuous’? When there is the presence of at least 4 (and ALL four must be armed) men provided with means for violence

Q: Several members of a barangay armed themselves and proceeded to the election precincts, and prevented the election officers from performing their duty. What crime was committed? Sedition in the 1st manner Q: The city engineer of Makati issued an order for the demolition of the shantytowns in a certain area. When the demolition was about to take place, residents of the area blocked the road leading to the site, the purpose of doing so is to prevent the city engineer and his men from pushing through with the demolition. What crime was committed? Sedition in the 2nd manner Q: Suppose Bayani Fernando, pursuant to his project ‘Metro Gwapo’, relocated all the squatters in Baclaran. One morning while inside the Baclaran Church, the residents set his car on fire. What crime or crimes did they commit? 1. Sedition

HIRYU KIMIKO OKUBO

Q: 10 persons armed themselves for the purpose of preventing the holding of a referendum through violence. Are they liable for sedition? No, a referendum is different from a popular election

CRIMINAL LAW II 49 K notes 2. Arson *separate crimes: unlike rebellion or coup d’etat, sedition does NOT absorb commit crimes committed in furtherance of its goals Q: Suppose you have a grudge against your municipal mayor and you burned down his house. What crime/s may you be liable for? 1. Sedition in the 3rd manner 2. Arson *separate crimes Q: Suppose you shoot him instead 1. Sedition in the 3rd manner 2. Murder/Homicide *separate crimes Q: Give an example of the 4th objective Q: Give an example of the 5th objective Q: Conspiracy to commit sedition, how is this committed? Q: Inciting to sedition, how is this committed? Q: Give an example of inciting to sedition in the 1 st manner Q: What are the two rules in determining culpability, as far as inciting to sedition goes? 1. The Clear and Present Danger Rule 2. The Dangerous Tendency Rule Q: What is employed in this jurisdiction? Both Rules, depending on the attending circumstances Q: Is there such a crime as ‘proposal to commit sedition’? None Q: Suppose you incited others to commit sedition and they did. What crime was committed? Sedition Q: What is meant by ‘scurrilous libels’? Writings that are low, vulgar and mean Q: Give an example

Q: What is sedition? A Raising of commotion or disturbances in the State, possessing as its ultimate objective a violation of the public peace or at least such measures that evidently engender such violations Q: May sedition be committed by 3 persons? No – there must at least be 4 armed persons Q: If there are 50 persons who are not armed, is there sedition? None Q: 20 persons, with only one carrying a .45cal revolver No

HIRYU KIMIKO OKUBO

Q: May inciting to sedition be committed by mere silence? Yes, by ‘knowingly concealing such evil practices’


*NB: it doesn’t matter how many people there are, it matters how many ARMED people there are – mind the qualification for means of violence Q: If no one was carrying a gun but 5 were carrying arms Sedition Q: If 6 were carrying World War II vintage M-1 Garand Rifles that would not even fire? Sedition (trolling moment: they can still be used to hit somebody :D ) Q: What if those 6 people were armed with stones? Scissors? Needles? Yes to all the above, the crime is sedition – these items may be used for violence (trolling moment: Ever been poked in the eye with a needle? There you go – violence :D) Q: What is the liability of the participants, supposing they were not able to achieve the purpose they aimed for? Sedition, The crime is consummated once all the elements concur (think: public and tumultuous uprising + any of the 5 objects of sedition) – the success of the endeavour is not an element *NB: That’s how it works. Once ALL elements are present, criminal liability inures (automatically attaches) to the offense. Check the elements for every crime – if they are incomplete, the crime is not consummated. Q: The MMDA was set to demolish a shantytown. The residents blocked the MMDA officials’ access to the site. The police arrived and the residents dispersed, allowing the demolition officers to do their job. Are the residents liable? Yes, the crime was already consummated Q: Same facts, except that the residents held only pieces of wood. Are they liable? Still liable (trolling moment: being hit by a piece of wood… hurts. Violence, mates.) Q: In the 1st manner, is it necessary that the holding of popular elections is actually prevented? No Q: In the MMDA example, suppose there were 20 residents, only one carried a firearm, the rest were simply being rowdy and noisy. The armed resident fired at a vehicle owned by the MMDA. The driver died. What is the armed resident’s liability? Murder/Homicide

Q: Suppose that the remaining 19 residents picked up pieces of wood. What is the liability of the resident who shot a member of the demolition team? 1. Sedition 2. Murder/Homicide *separate crimes because sedition does not absorb common crimes Q: What is the legal effect of common crimes in sedition? They are not absorbed and will be prosecuted independently of the case for sedition Q: May they be complexed with sedition? No Q: Give an example of common crimes committed in sedition *trolling moment - formula: sedition (public and tumultuous uprising + any of the 5 objectives) + any of the common crimes (i.e.: murder/homicide/arson/rape/serious physical injuries etc) + a whole lot of imagination. Go for it :P

HIRYU KIMIKO OKUBO

*NB: NOT sedition. Notice, he was the only one armed


NOTES: *As differentiated with rebellion, the nature of sedition may be either political or social, whereas rebellion is always political *The offender in sedition may be either a public or private individual *A public uprising AND an object of sedition must concur, else it isn’t sedition *Common crimes are NOT absorbed by sedition *Preventing an election through legal means (i.e.: electoral contests, filing civil cases pertaining to elections) is not contemplated by sedition *Persons liable for sedition are (1) the leader/s and (2) other persons participating in the seditious act/s

ART.143 ACTS TENDING TO PREVENT THE MEETING OF THE NATIONAL ASSEMBLY AND SIMILAR BODIES Q: How is this committed? 1. There is a projected OR (*NB: disjunctive – very important) actual 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 2. The offender – who may be any person – prevents such meeting by force or fraud (*NB: mind the 2 manners of prevention: force or fraud) Q: Give an example Q: What are the legislative bodies included in the provision? Q: May this be committed by a participant of the meeting? Yes, ‘any person’

Q: How is this committed? 1. There is a meeting of Congress or any of its committees, constitutional commissions or committees or divisions thereof, or of any provincial board/city/municipal council or board 2. The offenders does any of the following acts: a. He disturbs any of such meetings b. 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 Q: Give an example Q: Meeting of a committee created by the Senate. A resource person was being interpolated. Someone in the audience shouted and booed the interpolating Senator. Is that someone liable? Yes Q: May the Senate also cite him for contempt? Yes

HIRYU KIMIKO OKUBO

ART.144 DISTURBANCE OF PROCEEDING

CRIMINAL LAW II 52 K notes Q: May the Senator also order that person’s incarceration? Yes NOTES: *The nature of the crime of ‘disturbance of proceeding’ is criminal. When the Senate cites a person in contempt, the nature of that offense (the one found to be contemptuous) is essentially legislative. Hence, the 2 offenses are independent of each other, even if they result from the same overt act. *The Senate, in the exercise of its inherent plenary powers, may also order the incarceration of the accused, notwithstanding the filing of a criminal case for Art.144

ART.145 VIOLATION OF PARLIAMENTARY IMMUNITY *NB: It helps to review the table of penalties, as well as the definition of concepts like ‘session of Congress’ and ‘parliamentary immunity’ Q: How is this committed? 1. By using force, intimidation, threats or fraud to prevent any member of Congress from – a. Attending the meeting of the assembly or any of its committees, constitutional commissions, or committees or divisions thereof, or from b. Expressing his opinions or c. Casting his vote 2. By arresting or searching any member of Congress 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. The offender = a public officer/employee b. He arrests or searches any member of Congress c. Congress, at the time of the arrest or search, is in a regular or special session; d. The member searched/arrested has not committed a crime punishable under the RPC by a penalty higher than prision mayor *NB: Under the 1987 Constitution (which, needless to say, takes precedence over the RPC), the privilege from arrest of any member of Congress while the same is in session extends to all offenses punishable by not more than 6 years of imprisonment. The ambit of the privilege, therefore, includes offenses punishable by prision mayor, which runs from 6 years and 1 day to 12 years.

Q: Is it necessary that the member is actually prevented from doing those things? No Q: May the crime be committed outside the Halls of Congress? Yes Q: Suppose the committee on public order of the House of Representatives (HR) scheduled a meeting in Basilan. The meeting was in connection to the hostages taken by the Abu Sayyaf. Because the airport was waylaid by persons, they were not able to attend the meeting. Are those persons liable? Yes Q: Give an example of preventing a legislator from expressing his opinion Q: Where should that opinion be expressed?

HIRYU KIMIKO OKUBO

Q: Give an example of the 1st manner of commission

CRIMINAL LAW II 53 K notes In the Legislature, in the halls of congress, during the meeting or session Q: And if the legislator was invited to give an graduation address? No liability for the offender under Art.145. He may be held liable, however, for grave coercion Q: Give an example of preventing a legislator from casting his vote Q: Suppose that despite the threat, the legislator still casted his vote. Is the offender still liable? Yes Q: What consummates the crime in the 1st manner? Employing force, intimidation of threat *NB: It isn’t necessary that the offender actually succeeds in preventing the legislator Q: How is the 2nd manner committed? Q: What is the duration of Prision Mayor? 6 years, 1 day to 12 years Q: So you’re saying that a legislator may only be arrested when his offense carries with it a penalty higher than 12 years? No – if the crime was committed when Congress is not in session, he may be arrested despite the fact that the penalty is not within the privileged range provided for in art.145 Q: When a member of Congress commits a crime and the penalty for it is 6 years, may he be arrested? No Q: If the penalty is higher than 6 years? Yes Q: Even if Congress is in session? Yes, even if Q: If Congress is not in session, may he be arrested, regardless of the penalty? Yes *NB: 2 important qualifications in this crime are (1) the penalty for the offense committed and (2) whether Congress happens to be in session or not

Q: The lower house is in session from July 1 to October 31. On September 15, the warrant was issued. The legislator was arrested in his house. Are the arresting officers liable? Yes *NB: By ‘session’, the law does not mean the time when the members of Congress are actually sitting in the Halls of Congress. As far as the concept goes, Congress is ‘in session’ 24/7 and is deemed to be ‘in session’ for all the days included in the period of July 1 to October 31 Q: What is meant by ‘session’? The time inclusive of the initial convening until final adjournment Q: Same facts, except that the offense committed was murder. Would the police still be liable? Not anymore, the penalty for murder is higher than 6 years

HIRYU KIMIKO OKUBO

Q: Physical Injuries committed long before the legislator was elected. A warrant of arrest was issued for the offense, which is punished by Prision Correccional. Congress is in Session. May he be arrested? No

CRIMINAL LAW II 54 K notes Q: A person committed a crime before he became a Member of Congress. When he was elected, the warrant of arrest was issued. The penalty for the crime he committed is 6 years. The officers arrested him, are the officers liable? Yes Q: A Congresswoman committed plunder long before being elected. A corresponding information was filed with the Sandiganbayan. May she be arrested, notwithstanding the fact that Congress is in session? Yes, the penalty for plunder is higher than 6 years Q: Suppose a legislator uttered gravely slanderous words against you. Can you file a case against him? Yes, the immunity is from arrest and searches only, NOT from the filing of complaints *NB: file anytime you want, but be mindful that filing is NOT the same as arrest/search. For the latter, the law imposes certain qualifications. Q: So if the court prepared a warrant of arrest but did not have it implemented, the court is not liable? Yes, the court is not liable. What is punished is actual arrest/search

ART.146 ILLEGAL ASSEMBLIES Q: What are the 2 kinds of illegal assemblies? 1. Any meeting attended by armed persons for the purpose of committing any of the crimes punishable under the RPC 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 a person in authority or his agent Q: Who may be criminally liable? 1. The leaders/organizers of the meeting 2. The persons merely present at the meeting Q: What is the presumption of the law, if a person at the meeting carries an unlicensed firearm? 1. It is presumed that the purpose of the meeting insofar as he is concerned, is to commit acts punishable under the RPC 2. He is considered a leader/organizer of the meeting Q: In the 1st form, how many persons must be armed? At least 2 since the law speaks of ‘persons’ (plural)

Q: Suppose then that 5 of them are armed and the purpose of their meeting is to sell shabu, marijuana and cocaine. Will they be liable for illegal assembly under the 1 st manner? No, the crime committed is a violation of a special law (CDDA), not the RPC Q: And if the purpose was to steal cars? They are not liable, they violated a special law (Anti-Carnapping Law) Q: What if they planned to rob a bank? They are liable, robbery is punishable under the RPC Q: What is the 2nd manner of commission? Q: Is it necessary that the persons attending the meeting be armed, under the 2nd manner?

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Q: Suppose there are 10 members, only 1 of them is armed with 10 hand grenades. Is the same considered an illegal assembly? No

CRIMINAL LAW II 55 K notes No Q: Suppose you and your classmates gathered together since the midterm exam is upcoming and you knew for a fact that all of you would fail. You planned to wipe your criminal law teacher off the face of the planet. Will you be liable for illegal assembly? Yes, under the 2nd manner Q: Why? Because the members are incited to commit the crime of direct assault upon a person in authority Q: Suppose that instead of going to class, you and 10 other classmatesgathered together for a meeting wherein you, as the leader, incited them to join the NPA. What is your liability? 1. Inciting to Rebellion (*NB: you merely incited them, no mention was made as to whether or not they actually joined) 2. Illegal Assembly in the 2nd manner *separate crimes Q: And the liability of your classmates, assuming they join the NPA? Rebellion by direct participation Q: What is your liability if your classmates end up joining the NPA? Rebellion as principal by inducement *NB: the classmates actually joined the NPA. You induced them to. Q: What would be your liability if your classmates did NOT end up joining the NPA? Illegal Assembly (only) *NB: It is important under the 2nd manner that the audience is incited to the commission the crime of treason, rebellion, insurrection, sedition or assault. If the audience ends up actually committing those crimes, the liability for those crimes attach, as far as they are concerned. As far as the person inciting them to commit those crimes, he becomes liable as a principal by inducement for having caused the actual commission. It helps to recall the particeps criminis at this point, because liabilities for crimes (as principals, accomplices and accessories) are affected by commission or non-commission. Remember also that when the audience ends up committing those crimes, the leader’s liability is for the crime they committed in addition to the liability for illegal assembly – because by the time the audience members actually commit treason/rebellion etc, the crime of illegal assembly in the 2nd manner has already been consummated. Q: What if you and your classmates met to discuss your plans for illegal recruitment? We are liable

ART.147 ILLEGAL ASSOCIATIONS Q: What are illegal associations? 1. Associations totally or partially organized for the purpose of committing any of the crimes punishable under the RPC 2. Associations totally or partially organized for purposes contrary to public morals Q: Differentiate illegal assemblies from illegal associations

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*NB: Remember that ESTAFA is a crime punishable by the RPC, and that estafa can be committed in connection with illegal recruitment

CRIMINAL LAW II 56 K notes ILLEGAL ASSEMBLIES ART.146 Meeting and Assembly per se are punishable

ILLEGAL ASSOCIATIONS ART.147 The act of forming or organizing, as well as membership in these organizations is punishable

RE: conduct of a meeting

There should be an actual meeting

There is no need for an actual meeting

RE: persons liable

Leaders Organizers Persons merely present

Founders Directors Presidents Members

RE: purpose

Commit crimes punishable under the RPC

Commit any of the crimes punishable under the RPC

Incite audience to the commission of treason,rebellion, insurrection, sedition, assault

Organizing an association or organization for purposes contrary to public morals

RE: punishable acts

Q: Give an example of illegal associations Q: You and your classmates form an association for the purpose of taking money from your clients through fraudulent acts. Are you liable? Yes, the crime we plan on committing is estafa Q: You, along with your friends, form an association called ‘Cheats, Inc.’ in order to help each other pass criminal law II. Will you be liable for illegal associations? Yes, cheating is contrary to public morals Q: An organization was formed in order to pair couples together and orchestrate false weddings. Is this punishable? Yes, the acts are contrary to public morals Q: Suppose you joined an association which propagates cohabitation without the benefit of marriage. The philosophy of the organization is that marriage is just a piece of paper, no longer practicable nor honoured by society. Are you liable? Yes, the organization’s purpose is contrary to public morals

ART.148 DIRECT ASSAULTS *NB: Pay special attention, this comes up in Midterm Exams. Also, it helps to review the elements of rebellion and sedition Q: How is this committed? 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

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Q: An association is composed of married men and women. The purpose is to ‘foster love’ among themselves. Are they liable? Not necessarily, as long as they are not committing adultery or concubinage or bigamy

CRIMINAL LAW II 57 K notes 2. Without public uprising, by attacking, employing force, seriously intimidating or seriously resisting any person in authority or his agent while the said person or agent is – a. Engaged in the actual performance of official duties; OR (*NB: disjunctive, very important) b. On the occasion of such performance (*NB: ‘on the occasion’ here does NOT refer to the time when the performance is being done. It means ‘by reason of’ or ‘because of’ the performance. Hence, the performance contemplated here has already been/has previously been done. Think: past tense, as far as the duty performed goes) *NB: Do NOT omit the ‘without public uprising’ phrase. Once there is a public uprising, the crime is no longer direct assault but rebellion/sedition as the case may be. Q: May direct assault be committed against private individuals? Yes (see: objects of sedition, ‘xxx any act of hate or revenge… against private individuals xxx’ Q: Give an example of direct assault in the 1st manner Q: There are 3 armed persons who went to Binondo, employed force and intimidation on Chinese retailers there because these retailers were dominating the retail business area. What is the liability of the 3 persons? Direct Assault in the 1st manner (see: 4th object of sedition) Q: What is the 2nd manner of committing direct assault? Q: Who do you mean by ‘on the occasion of such performance’? The impelling motive of the attack is the past performance of official duty *NB: ‘past’ because if the attack was done during the actual performance, the crime is direct assault under the 1st manner, not the 2nd Q: Who is a person in authority? (*NB: know this by heart) Any person directly vested with jurisdiction to govern or execute the laws, whether as an individual or as a member of some court or government corporation, board or commission Q: Give examples -Barangay Captains -Mayors -Governors -Municipal Councilors, etc. Q: Teachers? Yes (see: Art.152)

Q: A senator? Yes Q: The President of the Philippines? Yes Q: Former First Gentleman Miguel Arroyo? No, he is not vested with jurisdiction to execute the laws Q: And who is an agent of a person in authority? (*NB: know this by heart, too)

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Q: Lawyers? Yes (see: Art.152)

CRIMINAL LAW II 58 K notes Any person who, by direct provision of law, by election or appointment by competent authority is charged with the maintenance of public order and the protection and security of life and property Q: Give examples -Peace officers/Policemen -Barangay Tanods -Soldiers/Members of the military Q: Between the 1st and 2nd manners of commission, is there a difference in the degree of force necessary to commit the crime of direct assault? Yes – a. If the offended party is a Person in Authority, the force employed does not have to be serious b. If the offended party is an Agent of a Person in Authority, the force employed must be serious Q: When do you say that the force employed is ‘serious’? When it indicates a determination to defy the law and its representatives at all hazards Q: Can you give an example Q: Suppose you were being arrested by a police officer, you hit him with your fists. Will you be liable? No, fist blows aren’t serious Q: A warrant of arrest was issued against you. The police sought to implement the warrant and your family members blocked them from entering the house. Are they liable? Yes, Direct Assault under the 1st manner (see: objects of sedition: preventing a public officer from exercising his functions) Q: Your brother was apprehended by the police while he was in a bar fight. He was incarcerated. You asked the police for his release and they refused. You organized your friends and went to the police headquarters and fired at the officers there. Are you liable for Direct Assault? Yes Q: Under the 1st or 2nd manner? 1st – for inflicting an act of hate or revenge on an agent of a person in authority Q: Because you flunked Criminal Law I, you pushed your professor aside when you met him by the stairs leading up to 13L. He lost his balance but didn’t fall. Are you liable for direct assault? Yes, a professor is also considered a person in authority. The force necessary need not be serious

Q: You were not able to study for Criminal Law II. You came to class and pointed a rifle at Atty. Amurao. The rifle had a sign that read ‘Do not call me for recitation’. Will you be liable? Yes – serious intimidation Q: A Mayor’s mistress assaulted him in his office because the Mayor refused to support her. Is she liable? Yes Q: But the reason for the assault was because he refused to support her When the person in authority is engaged in the actual performance of duty, the motive for the attack is immaterial

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Q: Are all the elements present? Yes. The offended party is a person in authority, the force used did not have to be serious, and the attack was by reason, or on occasion of a past performance of duty

CRIMINAL LAW II 59 K notes *NB: motive only becomes material when the offense is committed under the second manner i.e.: when the person in authority is not engaged in the actual performance of duty Q: Suppose we are having class in Criminal Law II. A person suddenly came in and shot Atty. Amurao. The shot resulted in your teacher’s death. What crimes did that person commit? Direct Assault complexed with Murder/Homicide as the case may be *NB: the teacher was in the actual performance of official duties Q: For example, after our class in Criminal Law II, Atty. Amurao was walking along Mendiola when a person suddenly fired at him. He eventually dies. The reason for the attack was that Atty. Amurao had an obligation to pay the amount of Php 100,000 and he refused to honor the obligation. What is the offender’s liability? Direct Assault (in the 2 nd manner) complexed with Murder *NB: the teacher is no longer in the actual performance of official duties Q: For example, you ran into your teacher in Criminal Law II along one of the corridors. This was after your Criminal Law II class which you failed. What crime did you commit? Direct Assault in the 2nd manner Q: Suppose a lawyer made arguments that significantly strengthened the case for the prosecution during the trial. The offender saw the lawyer eating at a restaurant on the evening of the day when the judgment pronouncing the accused guilty beyond reasonable doubt was promulgated. He fired his gun at the lawyer, causing serious physical injuries. Is the offender liable? Yes, the attack was committed by reason of a past performance of duty Q: Suppose you are a governor, and you recommended your niece to the Mayor for a position in said Mayor’s office. The Mayor deferred your recommendation because the position was no longer vacant. When you saw the Mayor, you shot him but he did not die. You succeeded in merely inflicting a serious wound. What crime did you commit? Direct Assault complexed with Serious Physical Injuries Q: Say you are a Senator. You are in a hurry so you ran a red light. The traffic enforcer asked you to present your driver’s license but instead of complying, you pointed a gun at him and fired, inflicting a wound. Are you liable? Yes NOTES:

*Hitting a policeman with your fists is not direct assault because the policeman is an agent of a person in authority and the force necessary to consummate the crime must be of a serious character *Because the provision uses the phrase ‘laying hands… xxx’ on a person in authority, the force that is necessary to consummate direct assault when the offended party is a person in authority does not have to be serious *The intimidation or resistance employed against both a person in authority and his agent must be of a serious character PERSON IN AUTHORITY RE: force employed

Need not be serious

AGENT OF A PERSON IN AUTHORITY Must be of a serious character

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*Direct Assault is always complexed with the material consequence of the act (i.e.: murder, serious physical injuries, etc.) EXCEPT when it results in a light felony, in which case, the liability for the light penalty is absorbed by direct assault

CRIMINAL LAW II 60 K notes RE: intimidation or resistance

Must be of a serious character

Must be of a serious character

*Even when the person in authority/agent agrees to fight, the crime is still direct assault. Their agreement to fight does not mitigate the liability *BUT when the person in authority/agent PROVOKES the fight (i.e.: the PIA/agent attacks first), the innocent party is entitled to plead legitimate self-defence *Direct Assault cannot be committed during rebellion – recall: elements of both crimes, need for public uprising in rebellion

ART.149 INDIRECT ASSAULT Q: How is this committed? 1. A person in authority or an agent of a person in authority is a victim of any form of direct assault defined under art.148 (*NB: notice that one of the elements of this crime is a crime in and of itself – direct assault under art.148) 2. A person comes to the aid of such person in authority/agent 3. The offender makes use of force or intimidation upon the person who came to the aid of the person in authority/agent Q: Does the person coming to the aid of the Person in Authority/Agent have to be a public officer? No, even a private individual may come within the purview of the provision, as long as he came to the aid of the assaulted person in authority/agent Q: May indirect assault be committed without the crime of direct assault? No, Direct Assault is an essential element of Indirect Assault *NB: this is an example of a ‘parasite crime’ (-Atty. A). No Direct Assault, no Indirect Assault Q: Will the acquittal in Direct Assault carry with it the acquittal in Indirect Assault, as far as the offender is concerned? (*NB: pay attention to this, it can be tricky) It depends Q: Depends on what? The nature of the acquittal for the crime of Direct Assault

If the acquittal in Direct Assault is by reason of an EXEMPTING CIRCUMSTANCE, there will NOT be an acquittal for Indirect Assault *NB: Recall the nature of exempting circumstances (i.e.: minority, insanity) – unlike justifying circumstances where, in the eyes of the law, no crime was committed, there is no criminal and there is no criminal liability; in exempting circumstances, there is still a crime committed, there is still a criminal offender and there is still criminal liability, EXCEPT that the criminal offender is EXEMPTED. Think: when a person is exempted, it does NOT mean that he is innocent of the crime. It simply means that the law does not make him serve out the sentence for his crime. If the acquittal in Direct Assault is because the evidence adduced for that crime does not prove the offender’s guilt beyond reasonable doubt, there will NOT be an acquittal in Indirect Assault

HIRYU KIMIKO OKUBO

Q: Explain If the acquittal in Direct Assault is because the offender DID NOT commit the act, there will be an acquittal for Indirect Assault


*NB: Remember that Indirect Assault depends on the commission of Direct Assault. If the prosecution was not able to prove beyond reasonable doubt that the offender did in fact commit Direct Assault, it still does NOT mean that he did not commit it at all – it simply means that the prosecution was not able to meet the quantum of proof necessary for a conviction. Consequently, the case for Indirect Assault may still proceed. Q: Suppose a judge who convicted X and sentenced him to suffer 10 years of imprisonment. X served out the sentence and when he was released, the judge had already retired. X saw the judge leaving the church one morning and he attacked the judge. The mayor was also on his way out of the church and saw the commotion. He (the mayor) started to make his way to the judge in order to help the latter, but someone – a third person – prevented him from doing so by hitting him. What is the liability of X? What about the liability of the 3rd person who prevented the mayor from helping the judge? X’s liability: Direct Assault 3rd person’s liability: Direct Assault as well. The mayor is a person in authority, too Q: Same facts, except that the person coming to the aid of the judge was his neighbour, a businessman. What is the liability of the 3rd person who prevented the professor? Indirect Assault

ART.150 DISOBEDIENCE TO SUMMONS Q: How is this committed? 1. By refusing, without legal excuse, to obey the summons of Congress, its special/standing committees and subcommittees, the Constitutional Commissions and their committees, subcommittees or divisions, or by any commission of committee chairman or member authorized to summon witnesses 2. By refusing to be sworn in, or placed under affirmation while being before such legislative or constitutional body/official 3. By refusing to answer any legal inquiry or to produce any books, papers, documents or records in the offender’s possession, when required by them (Congress, constitutional commissions etc) to do so in the exercise of their functions 4. By restraining another from attending as a witness in such legislative or constitutional body 5. By inducing disobedience to a summons or refusal to be sworn in by any such body or official Q: Give an example under any of the punishable acts

Q: Bolante deposited Php 500,000,000 in several banks. The Senate required the banks to produce the papers, books and records of the accounts allegedly belonging to Bolante. The banks refused to comply and invoked the Bank Secrecy Law. Will the banks be liable? No, there is a legal excuse Q: Suppose Bolante answered all the Senate’s questions, but the Senate was not satisfied with the answers because they weren’t what the Senators expected to hear. May Bolante be held criminally liable? No, he answered all the questions Q: Suppose Bolante failed to produce the books, papers and documents required by the Senate and the Senate ordered his imprisonment unless he complied. May the Senate validly do so? No

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Q: Jocjoc Bolante was being questioned by the Senate. He refused to answer the questions and invoked his right against self-incrimination. Will he be liable? No, there is a legal excuse for his refusal

CRIMINAL LAW II 62 K notes Q: What is the difference between Contempt and Disobedience? Contempt is an offense that is Administrative in nature Disobedience is a criminal offense

ART.151 RESISTANCE AND DISOBEDIENCE TO A PERSON IN AUTHORITY OR AN AGENT OF A PERSON IN AUTHORITY Q: How is this committed? 1. A person in authority/agent of a person in authority is engaged in the performance of official duty or gives a lawful order to the offender 2. The offender resists or seriously disobeys such person in authority/agent 3. The act of the offender is NOT included in the provisions of art.148 (direct assault), 149 (indirect assault), or art.150 (disobedience to summons) Q: Give an example Q: Suppose you are arrested for jaywalking. Instead of obeying the policeman, you lay prostrated on the street. Are you liable? Yes Q: Differentiate art.148, art. 149, art.150 and art.151 INDIRECT ASSAULT ART.149

DISOBEDIENCE TO SUMMONS ART.150

Use of force is directed against the person in authority or his agent

Use of force is directed against the person coming to the aid of a person in authority/agent

No force is employed, mere disobedience/ Refusal to be sworn in/ Refusal to produce books, papers, etc.; restraining another; inducing disobedience to a summons issued by Congress/any of the bodies mentioned in the article, consummates the crime

Person in Authority/Agent must be engaged in the actual performance of official functions or assaulted by reason thereof

Person in Authority/Agent is assaulted while in the performance of official duty or by reason thereof

The summons; questions or orders must be issued in the exercise of official functions

*NB: Presumes that Direct Assault is already consummated, that is, the person in authority/agent is already assaulted while in the performance of duty or on occasion thereof

DISOBEDIENCE TO A PERSON IN AUTHORITY/HIS AGENT ART.151 No force is employed, the offender instead resists or seriously disobeys the person in authority/agent

Person in Authority/agent must be in the actual performance of his duties; or must have issued a lawful order to the offender

HIRYU KIMIKO OKUBO

DIRECT ASSAULT ART.148

CRIMINAL LAW II 63 K notes Use of force against the person in authority need not be serious Use of force against an agent of a person in authority must be serious

Mere use of force or intimidation against the person coming to the aid of a person in authority/agent consummates the crime; no qualification as to the degree of force/intimidation required

No qualifications as to the degree of refusal/disobedience required to consummate the crime

Mere putting up of resistance is punishable Disobedience, however, must be serious

ART. 153 TUMULTS AND OTHER DISTURBANCES OF PUBLIC ORDER Q: How is this committed? 1. By causing any serious disturbance in a public place, office or establishment 2. By interrupting or disturbing a public performance, function, gathering or peaceful meeting if the act is NOT included in art.131 (prohibition, interruption and dissolution of peaceful meetings) and art.132 (interruption of religious worship) 3. Making an outcry tending to incite rebellion or sedition in any meeting, association or public place 4. Displaying placards or emblems which provoke a disturbance of public order in such place 5. Burying with pomp the body of a person who has been legally executed (*NB: rendered inapplicable by the suspension of the death penalty) Q: Give an example of the 1st manner Q: Give an example of the 2nd manner Q: For instance, the person who interrupted and dissolved the rally is a public officer, will he be liable under this article? No, he will be liable under art.131 (prohibition, interruption and dissolution of peaceful meetings)

Q: For example, the person who interrupted and dissolved the rally is a public officer who also happens to be a participant of that rally, what is his liability? He is liable under art.153 because art.131 requires that the public officer-offender must not be a participant of the meeting Q: When is a meeting considered to be tumultuous? Q: When may an outcry be a crime under Inciting to Rebellion, and when may it be considered a Disturbance of Public Order? In Inciting to Rebellion, the outcry must be serious and deliberate; the offender should have done the act with the idea of inciting his listeners/readers to commit the crime of rebellion/sedition *NB: Here the inciting to rebellion/sedition is the controlling aim of the outcry

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Q: What is art.131? 132?

CRIMINAL LAW II 64 K notes In Disturbance of Public Order, the outcry is not serious and is a spontaneous, unconscious outburst which, although rebellious/seditious in nature, is not intentionally calculated to induce others to commit rebellion/sedition *NB: Here, the inciting to rebellion/sedition is not the controlling aim – there is no aim, to be exact, just that the inciting takes place as a result of a spontaneous outcry Q: Give an example Q: An Anti-Charter Change rally is on-going. Suddenly, a passer-by shouted ‘Revolution is the answer!’ What crime did he commit? Disturbance of Public Order, he made an outcry not intentionally aimed at inciting others to rebellion/sedition Q: After you gave a speech, a person shouted ‘Down with the Aquino Government!’ What crime did he commit? Disturbance of Public Order

ART.154 UNLAWFUL USE OF MEANS OF PUBLICATION Q: How is this committed? 1. By 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 2. By encouraging disobedience to the law or to the constituted authorities or by praising, justifying, or extolling any act punished by law, by the same means or by words, utterances, or speeches 3. By maliciously publishing or causing to be published any official resolution or document without proper authority or before it has been published officially 4. By 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 Q: Give an example of the 1st manner Q: May this crime be committed by any person? Yes Q: Give an example of the 2nd manner

Q: As a columnist, you wrote an article which praises and justifies the acts of Jocjoc Bolante. You described him as an honest, truthful and trustworthy public official and that he serves as an example to be followed by everyone. Will you be liable? Yes Q: Give an example of the 3rd manner Q: Suppose the Court of Appeals is set to release its resolution regarding the GSIS-MERALCO controversy. Before releasing the same to the public, you went to the Court of Appeals, obtained a copy, and gave it to GSIS and MERALCO. Will you be liable? Yes Q: Give an example of the 4th manner

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Q: As a scriptwriter, you portrayed Commander Datu in one of your films as a hero of the Muslim community. However, in the eyes of the law, he is a criminal. Will you be liable? Yes


Q: Are there any instances when a writer simply cannot include his name in his article? Yes, i.e.: when to do so would endanger his life Q: In literature, are writers required to write their real name? No, they can use pen names Q: What about actors and showbiz personalities, are they allowed to use names other than their real names? Yes, they may use screen names

ART.155 ALARMS AND SCANDALS Q: How is this committed? 1. By discharging any firearm, rocket, firecracker or other explosives within any town or public place calculated to cause alarm or danger 2. By instigating or taking an active part in any charivari or other disorderly meeting offensive to another or prejudicial to public tranquillity 3. By disturbing the public peace while wandering about at night or while engaged in any other nocturnal amusements 4. By causing disturbance or scandal in public places while intoxicated or otherwise, provided that Art.153 is not applicable Q: Will a person be liable if he discharged a firecracker during new year’s eve? No, the law exempts the celebration of new year’s eve and fiestas. By tradition, these days are considered holidays and the celebration of them through these means would not cause alarm or danger. Q: Suppose it isn’t a holiday, and at midnight, you light a firecracker in your residential subdivision. Will you be liable? Yes Q:What is a ‘charivari’? A medley of discordant voices or a mock serenade of discordant noises made on kettles, tins, or horns designed to annoy or insult Q: Under the 3rd manner, is it necessary that the offender be intoxicated? No

Q: Under the last manner (4th), does the disturbance have to be committed at night time? No Q: Can you give an example?

ART.156 DELIVERY OF PRISONERS FROM JAIL Q: How is this committed? 1. There is a person confined in jail or in a penal establishment 2. The offender removes therefrom such person, OR helps his escape

HIRYU KIMIKO OKUBO

Q: Give an example where a person will be liable for disturbing the public peace while engaged in nocturnal amusements

CRIMINAL LAW II 66 K notes Q: Does the prisoner have to be a prisoner by final judgment? No, he may be merely a detention prisoner Q: Who are the persons who may be held liable for the commission of this crime? -An outsider -A fellow prisoner -An employee of the penal establishment who does NOT have custody/charge of the prisoner *NB: if the person responsible for the crime is one who has custody/charge of the prisoner, the crime committed is Infidelity in the Custody of a Prisoner (Art. 223), not Art.156 -A guard Q: What qualifies the crime? The offender’s act of employing bribery as a means to remove a person from jail *NB: NOT the offender’s act of receiving or agreeing to receive a bribe in consideration for the commission of the offense because that is merely a generic aggravating circumstance Q: Does employment of deceit in the commission of the crime affect criminal liability? No, the employment of deceit is not an element of the offense Q: If the crime committed by the escapeehappens to be treason, murder or parricide, what is the legal effect on the liability of the person who helps his escape? The person who helps the criminal’s escape may be held liable as an accessory for assisting in the escape of a principal (see: Art.19, par.3) Q: What is the liability of the escapee if he is not a prisoner by final judgment and yet manages to escape? He has no criminal liability *NB: Evasion of the Service of Sentence requires prior conviction by final judgment Q: What is the escapee’s liability if manages to escape while his case is pending appeal? The offender has no liability, the case has not yet been decided, He has not yet been convicted by final judgment

CHAPTER SIX EVASION OF SERVICE OF SENTENCE

Art.157 EVASION OF SERVICE OF SENTENCE Q: How is this committed? 1. The offender is a convict by final judgment 2. He is serving his sentence which consists of deprivation of liberty 3. He evades the service of sentence by escaping during the term of his sentence Q: If the prisoner is merely a detention prisoner and not one by final judgment, may he be held liable for this crime? No

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*NB: It helps to review the mechanics of Pardon in relation to this Chapter

CRIMINAL LAW II 67 K notes Q: What if the person does happen to be convicted by final judgment but is a minor? He is not liable *NB: Recall the provisions of RA 9344 (Juvenile Justice and Welfare Act) – minors are NOT considered ‘convicts by final judgment’ because their sentence is suspended Q: And if the accused escaped while his conviction is on appeal? He is not liable, either. Judgment in this case is not yet final. Q: Does that hold true even if the appeal was dismissed because he escaped? Yes Q: Is Art.157 applicable to the penalty of Destierro? Yes, destierro is a deprivation of liberty, albeit partial. *NB: the Spanish text is controlling: ‘sufriendo privacion de libertad’. Destierro was meant to deprive one of his liberty Q: What circumstances qualify the offense? If the evasion of escape takes place – 1. By means of unlawful entry (i.e.: by ‘scaling’ a wall) 2. By breaking doors, windows, gates, walls, roofs or floors 3. By using picklocks, false keys, disguise, deceit, violence, intimidation 4. Through connivance with other convicts of employees of the penal institution

ART. 158 EVASION OF SERVICE OF SENTENCE ON THE OCCASION OF DISORDERS, CONFLAGRATIONS, EARTHQUAKES OR OTHER CALAMITIES Q: How is this committed? 1. The offender is a convict by final judgment, who is confined in a penal institution 2. There is disorder resulting from conflagration, earthquakes, explosions, similar catastrophes or a mutiny in which he has NOT participated 3. He evades the service of sentence by leaving the penal institution where he is confined on the occasion of such disorder or during a mutiny 4. He fails to give himself up to the authorities within 48hrs following the issuance of a proclamation by the Chief Executive announcing the passing away of such calamity

*NB: Because this provision carries with it a sort of ‘loyalty award’, a special incentive for the conscientious prisoner Q: What is the legal effect on the accused’s liability if he fails to give himself up after the specified time? An additional 1/5 of the unexpired jail time for his original offense will be added to his sentence *NB: The added jail time is not to exceed 6 months, of course Q: And if the accused does turn himself in, what is the legal effect on his liability? 1/5 of his original sentence will be deducted from his remaining jail time Q: Which is longer – the deduction or the added time?

HIRYU KIMIKO OKUBO

Q: What is being punished by this provision: the leaving of the penal institution or the failure to give oneself up within 48 hrs? The failure to give oneself up to the authorities within 48hrs after the proclamation announcing the end of the calamity

CRIMINAL LAW II 68 K notes The deduction (1/5 of the original sentence, vs. the additional penalty of 1/5 of the unexpired sentence. As always, penal laws should be construed liberally in favour of the accused) Q: What is a mutiny? An organized, unlawful resistance to a superior officer; a revolt Q: Is there a ‘mutiny’ as contemplated by the law if the accused disarmed the guards and escaped and the guards do not happen to be his superior officers? None in this event, neither will there be a reduction of sentence upon surrender

ART.159 OTHER CASES OF EVASION OF SERVICE OF SENTENCE Q: How is this committed? 1. The offender was a convict by final judgment 2. He was granted a conditional pardon by the Chief Executive 3. He violated any of the conditions of such pardon Q: Give an example of a condition appended to a pardon i.e.: ‘the accused shall not violate any of the penal laws of the Philippines’ (the usual condition fixed to a pardon granted by the President) Q: What kind of pardon is contemplated by this provision? Conditional Pardon Q: And what is the nature of a Conditional Pardon? It is in the nature of a contract between the accused and the Chief Executive Q: May the court require the convict to serve the unexpired term of his original sentence if that sentence does NOT exceed 6 years? No, it may not Q: Does the condition extend to special laws? Yes Q: In the event that the convict violates any condition appended to the pardon, may he be arrested and incarcerated without trial? Yes

Q: What is the time frame for the duration of the conditions of the pardon? The conditions of the pardon are limited only to the remaining period of the sentence Q: Differentiate the legal effects of a violation of conditional pardon and evasion of service of sentence by escaping VIOLATION OF A CONDITIONAL PARDON Does not cause any injury to the right of another person nor does it disturb the public order Merely an infringement of the terms stipulated in a contract between the President and the criminal

EVASION OF SERVICE OF SENTENCE BY ESCAPING It is an attempt, at least, to evade the penalty inflicted by the courts upon criminals and thus defeat the purpose of the law of either reforming or punishing the criminals for having disturbed the public order

HIRYU KIMIKO OKUBO

Q: May the time the convict spent out of prison be deducted from the unexecuted portion of his sentence, in the event that he is re-arrested? No


CHAPTER SEVEN COMMISSION OF ANOTHER CRIME DURING THE SERVICE OF PENALTY IMPOSED FOR ANOTHER PREVIOUS OFFENSE ART.160 COMMISSION OF ANOTHER CRIME DURING SERVICE OF PENALTY IMPOSED FOR ANOTHER PREVIOUS OFFENSE Q: How is this committed? 1. The offender was already convicted by final judgment of one offense 2. He committed a new FELONY before beginning to serve such sentence OR while serving the same (*NB: ‘new felony’ – keep in mind the reserved meaning for the term felony – acts or omissions punishable by the Revised Penal Code) Q: Does the second crime have to be a felony? Yes Q: What about the first crime? It does not have to be a felony Q: Is this the same as recidivism? No, Art.160 refers to Quasi-Recidivism Q: Differentiate the two RECIDIVISM BOTH the first and second offenses must be embraced under the SAME TITLE of the Revised Penal Code

QUASI-RECIDIVISM Does not require that the 2 offenses are embraced under the same title of the Code (see: Art.160)

(see: Art.14, par.9)

QUASI-RECIDIVISM May be committed while sentence is being served for the first offense, or before serving it

REITERACION Requires that the offender shall have served out the sentence for the prior offenses (plural) Contemplates more than one prior offense

Q: What is the nature of Quasi-Recidivism? It is a SPECIAL AGGRAVATING CIRCUMSTANCE where a person, AFTER having been convicted by final judgment of one offense, shall commit a NEW FELONY before beginning to serve the sentence for the 1st offense OR while serving the same. Q: Is it a crime? No

HIRYU KIMIKO OKUBO

Q: Differentiate Quasi-Recidivism from Reiteracion


Q: What are the legal effects of it? 1. The offender shall be punished by the maximum period of the penalty prescribed by the law for the new felony 2. It cannot be off-set by an ordinary mitigating circumstance Q: Is there a time-frame when a Quasi-Recidivist may be pardoned? Yes, when he turns 70 yrs. old and has already served out his sentence after reaching the said age Q: And if he happens to be a habitual criminal? He may not be pardoned

CHAPTER ONE FORGERIES SECTION ONE – FORGING THE SEAL OF GOVERNMENT OF THE PHILIPPINE ISLANDS, THE SIGNATURE OR STAMP OF THE CHIEF EXECUTIVE

ART.161 COUNTERFEITING THE GREAT SEAL OF THE GOVERNMENT OF THE PHILIPPINE ISLANDS, FORGING THE SIGNATURE OR STAMP OF THE CHIEF EXECUTIVE Q: What are the punishable acts under this provision? 1. Forging the Great Seal of the Government of the Philippine Islands 2. Forging the Signature of the President of the Philippines 3. Forging the Stamp of the President of the Philippines Q: Who has custody of the Great Seal? The Chief Executive Q: Is this the same as Falsification of Public Documents? No, it is an entirely distinct and separate crime

ART.162 USING FORGED SIGNATURE OR COUNTERFEIT SEAL OR STAMP Q: How is this committed? 1. The Great Seal of the Republic was counterfeited or the signature or stamp of the Chief Executive was forged by another person (*NB: the offender must not be the person who committed the forgery) 2. The offender knew of the counterfeiting or forgery 3. He used the counterfeit seal/signature/stamp Q: If the offender committed the forgery himself, what is his liability? He is a principal under art.161

HIRYU KIMIKO OKUBO

Q: If the accused simply wrote down the initials ‘BA-III’ to stand for ‘Benigno Aquino III’, will he be liable? No, the signature must be fully formed


Q: Does not the act of using an item forged by somebody else constitute liability as an accessory? Generally, it does Q: What is the difference in this case? The act committed under art.162 is that of an accessory, but the law imposes a penalty that is only ONE DEGREE LOWER, although an accessory is generally punished with a penalty two degrees lower than that of a principal Q: Is this an exception to the general rule on the particeps criminis? Yes

SECTION TWO – COUNTERFEITING COINS

Art.163 MAKING AND IMPORTING AND UTTERING FALSE COINS Q: How is this committed? 1. There are false/counterfeited coins 2. The offender either made, imported or uttered such coins 3. In case of uttering such false coins, the offender connived with the counterfeiters or importers Q: When is a coin considered to be ‘false’? When it is forged or is not authorized by the Government as legal tender Q: What if the coin happened to contain 24karats of gold? The intrinsic value of the coin is immaterial Q: What is meant by ‘uttering’ false coins? The circulation or delivery or the act of giving the coins away Q: When is a coin considered to be ‘uttered’? When it is paid, or when the offender is caught committing any preparatory act prior to its delivery, even though he may not have obtained his intended gain

Q: May coins that are no longer in circulation be considered ‘false coins’ if the offender chose to counterfeit them? Yes *NB: Even former coins withdrawn from circulation may be counterfeited. The provision does not qualify the word ‘coin’ with the adjective ‘current’ (ps: God I hated statcon so much) Q: What are the kinds of counterfeited coins under this provision? 1. Silver coin of the PH/ coin of the Central Bank of the Philippines (oh alright, Bangko Sentral if you insist on the nationalistic term) 2. Coin of minor coinage (i.e.: 1 centavo, 5 centavos etc) 3. Coin of the currency of a Foreign Country Q: When foreign coins are counterfeited, must they be in circulation?

HIRYU KIMIKO OKUBO

Q: If the offender was caught merely counting the coins before paying them, is he liable? Yes, the counting is a preparatory act and is considered to fall within the concept of ‘uttering’ false coins

CRIMINAL LAW II 72 K notes Yes, the law says ‘currency of a foreign country’ *NB: more statcon. Demonetized coins are no longer considered ‘currency’ – root word is obvious, the coins must be in circulation. I.e.: if you counterfeited a Franc, you are not liable because the legal tender/currency of France is now the Euro

Art.164 MUTILATION OF COINS – IMPORTATION AND UTTERANCE OF MUTILATED COINS Q: What are the punishable acts? 1. Mutilating coins of the legal currency, with the further requirement that there be intent to damage or defraud another 2. Importing or Uttering such mutilated coins, with the further requirement that there must be connivance with the mutilator or importer in the case of utterance Q: What is meant by ‘mutilation’? To diminish by ingenious means the metal in the coin *NB: this is punishable because the coin diminishes in intrinsic value, one who utters it receives its legal value in return for a lesser intrinsic value Q: Does the mutilated coin have to be of legal tender? Yes, the law uses the words ‘legal currency’ Q: Is mutilation of foreign coins punishable? No, merely the counterfeiting (see: art.163) of foreign coins is punishable under the RPC

Art.165 SELLING OF FALSE OR MUTILATED COIN WITHOUT CONNIVANCE

Q: What are the punishable acts? 1. Possession of coin, counterfeited or mutilated by another person, with intent to utter the same, knowing that it is false or mutilated **ELEMENTS: a. Possesion b. Intent to Utter c. Knowledge of Falsity 2. Actually uttering such false of mutilated coin, knowing the same to be false or mutilated **ELEMENTS a. Actual Utterance b. Knowledge of Falsity NOTES: *Possession of, or uttering false coins does NOT require that the counterfeited coin is legal tender *BUT if the coin being possessed is accompanied by an intent to utter the same, or it is being uttered, or it is a mutilated coin, it must be of legal tender

HIRYU KIMIKO OKUBO

*Trust me, I’m as bored as you are at this point, I have trouble imagining a court docket actually listing hearings for cases of violations under these provisions

CRIMINAL LAW II 73 K notes *Possession here includes constructive possession *Possession of false/mutilated coins by the counterfeiters of mutilators themselves does NOT constitute a separate offense *Actually uttering false/mutilated coins, knowing them to be so, is a crime under art.165 EVEN IF there isn’t connivance (see: elements of the 2nd punishable act, note the absence of connivance as an essential element of the crime)

SECTION THREE – FORGING TREASURY OR BANK NOTES, OBLIGATIONS AND SECURITIES; IMPORTING AND UTTERING FALSE OR FORGED NOTES, OBLIGATIONS AND SECURITIES

Art.166 FORGING TREASURY OR BANK NOTES OR OTHER DOCUMENTS PAYABLE TO BEARER; IMPORTING SUCH FALSE/FORGED NOTES AND DOCUMENTS Q: What are the punishable acts? 1. Forging or Falsifying Treasury of Bank Notes or other documents payable to bearer 2. Importation of such false/forged obligations or notes 3. Uttering such false/forged obligations or notes in connivance with the forgers or importers Q: Differentiate Forgery from Falsification FORGERY Giving the appearance of a true or genuine document

FALSIFICATION Erasing, Substituting, Counterfeiting or Altering by any means, the figures, letters, words or signs

Q: What is meant by ‘payable to bearable’? Ownership is transferred to the bearer by mere delivery – 1. When it is expressed to be so payable 2. When it is payable to a person named therein or to bearer 3. When it is 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 indorsement is an indorsement in blank (See: Sec.9, The Negotiable Instruments Law) Q: Give examples of ‘obligations and securities’ -bonds -certificates of indebtedness -coupons -treasury notes -fractional notes -certificates of deposit -bills -checks

HIRYU KIMIKO OKUBO

To make a false instrument intended to be passed for a genuine one

CRIMINAL LAW II 74 K notes -drafts for money -other representatives of value issued under any act of Congress *NB: Philippine National Bank (PNB) checks are commercial documents not covered by art.166

NOTES: *Penalties depend on the kind of forged treasury/bank notes or other documents *The penalty for forging or falsifying notes and obligations is more severe than that for counterfeiting coins

Art.167 COUNTERFEITING, IMPORTING AND UTTERING INSTRUMENTS NOT PAYABLE TO BEARER Q: How is this committed? 1. There is an instrument payable to order or other document of credit NOT payable to bearer 2. The offender either forged, imported or uttered such instrument 3. In case of uttering, he connived with the forger or importer Q: What is meant by ‘payable to order’? -Drawn payable to the order of a specified person or to him or his order -Negotiated by indorsement or delivery (See: Sec.8, The Negotiable Instruments Law) Q: Does the article cover instruments or other documents issued by a foreign government or bank? Yes, art.167 has no specification of the country or government issuing the instruments or documents Q: What is the reason behind this law? To maintain the integrity of the currency and insure the credit standing of the government; to prevent the imposition on the public and the government of worthless notes or obligations; to protect the banking system and the economy

Q: How is this committed? 1. Any treasury or bank note or certificate or other obligation and security payable to bearer, or any instrument payable to order or other document of credit not payable to bearer is forged or falsified by any person 2. The offender knows that any of those instruments is forged or falsified 3. He – a. Uses any of such forged/falsified instruments b. Is in possession with intent to use any of such forged/falsified instruments Q: Is intent to possess punishable under this article? No, intent to possess is not synonymous with ‘intent to use’ and is therefore not an offense punishable by art.168

HIRYU KIMIKO OKUBO

Art.168 ILLEGAL POSSESSION AND USE OF FALSE TREASURY OR BANK NOTES OR OTHER INSTRUMENTS OF CREDIT

CRIMINAL LAW II 75 K notes Q: What is the presumption of the law with regard to the person in possession of a falsified document? A person in possession of a falsified document and who makes use of it is presumed to be the material author of the falsification NOTES: *Intent to use is sufficient to consummate the crime when the offender is IN POSSESSION of false/falsified obligations or notes *BUT mere possession WITHOUT intent to use it to the damage of another is not a crime

Art.169 HOW FORGERY IS COMMITTED Q: How is forgery committed? 1. By giving to a treasury/bank note or any instrument payable to bearer or to order mentioned therein, the appearance of a true and genuine document 2. By erasing, substituting, counterfeiting or altering by any means the figures, letters, words or signs contained therein Q: Does forgery include falsification and counterfeiting? Yes Q: What are the acts punished under Presidential Decree (PD) 247? Defacing, mutilating, tearing, burning or destroying, in any manner whatsoever, currency notes and coins issued by the Central Bank of the Philippines

SECTION FOUR – FALSIFICATION OF LEGISLATIVE, PUBLIC, COMMERCIAL AND PRIVATE DOCUMENTS AND WIRELESS, TELEGRAPH AND TELEPHONE MESSAGES

Art.170 FALSIFICATION OF LEGISLATIVE DOCUMENTS

Q: Who may commit this crime? Any person who alters a document without the proper authority therefor Q: What type of document is contemplated under this article? Legislative documents Q: May this crime be committed by a public officer who does NOT take advantage of his official position? Yes Q: Suppose the City Council passed an Ordinance and when it was transmitted to the Mayor for his approval, the Mayor changed one of the WHEREAS clauses. Is he liable? Yes, the Mayor has no authority to unilaterally change any of the parts of an ordinance

HIRYU KIMIKO OKUBO

Q: How is this committed? 1. 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 2. The offender alters the same 3. He has no proper authority therefor 4. The alteration has changed the meaning of the document

CRIMINAL LAW II 76 K notes Q: Did the Mayor in the foregoing example take advantage of his official position? How? Yes he did, he took advantage of the fact that the ordinance must first be signed by him and changed one of the WHEREAS clauses Q: Supposing the Mayor did not take advantage of his position and acted in a private capacity, will he still be liable? Yes

Art.171 FALSIFICATION BY PUBLIC OFFICER, EMPLOYEE, OR NOTARY OR ECCLESIASTICAL MINISTER Q: How is this committed? 1. The offender is a public officer, employee or notary public 2. He takes advantage of his official position 3. He falsifies a document by committing any of the following acts: a. Counterfeiting or Imitating any handwriting, signature or rubric; b. Causing it to appear that persons have participated in any act or proceeding when they did NOT in fact so participate; c. Attributing to person who have participated in any act or proceeding statements OTHER than those in fact made by them; d. Making untruthful statements in a narration of facts; e. Altering true dates; f. Making any alteration or intercalation in a genuine document which changes its meaning; g. Issuing in authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such copy a statement contrary to, or different from, that of the genuine original; h. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book 4. In case the offender is an ecclesiastical minister, the act of falsification is committed with respect to any record or document of such character that its falsification may affect the civil status of persons Q: Differentiate art.170 from art.171

RE: Type of Document

Legislative Documents

RE: Persons Liable

Any unauthorized person

FALSIFICATION BY PUBLIC OFFICER, EMPLOYEE, NOTARY OR ECCLESIASTICAL MINISTER (ART.171) Public/Official/All other documents NOT legislative in nature Public Officer, Employee or Notary Public Ecclesiastical Minister, with respect to falsification of records or documents which affect the status of persons


Offender need not take advantage of his official position

Offender must take advantage of his public position

HIRYU KIMIKO OKUBO

FALSIFICATION OF LEGISLATIVE DOCUMENT (ART.170)

CRIMINAL LAW II 77 K notes Q: When may a public officer be said to ‘take advantage’ of his position? 1. When he has the duty to make or to prepare or otherwise to intervene in the preparation of the document 2. When he has official custody of the document which he falsifies Q: What is a ‘document’? -Any written statement by which a right is established or an obligation, extinguished -A writing or instrument by which a fact may be proven and affirmed Q: What are the punishable acts which require the use of a GENUINE document? 1. Making an alteration/Intercalation 2. Including in a copy a different statement 3. Intercalating any instrument or note relative to the issuance thereof in any protocol, registry or official book *NB: Other acts of falsification may be committed by SIMULATING or FABRICATING a document and hence do not require the presence of a genuine one Q: Is the simulation of public, official or mercantile documents also contemplated by the article? Yes – the provision says … ‘shall falsify adocument’ (type of document is not specified) Q: Under the first mode (counterfeiting or imitating any handwriting etc), what are the two ways of committing the crime? 1. Counterfeiting or Imitating any handwriting, signature of rubric 2. Feigning or Simulating any signature, handwriting or rubric which does NOT in fact exist Q: What are the requisites of counterfeiting? 1. Intent or Attempt to Imitate 2. There must be at least 2 signatures/handwritings/rubrics – the genuine one and the forged one; and they must bear a resemblance to each other Q: And if the 2 do not appear the same? The offender may be liable under Art.171, par.2 (causing it to appear that person/s have participated in an act they did not in fact so participate in) Q: Under the second mode of commission (causing it to appear that persons have participated etc), what are the requisites? 1. The offender caused it to appear in a document that a person or number of persons participated in an act or proceeding 2. Such person/s did NOT in fact so participate

Q: Under the 3rd mode of commission (attributing false statements to persons who have participated in an act or proceeding), what are the requisites? 1. A person or group of persons participated in an act or proceeding 2. He/they made statements in such act/proceeding 3. The offender, in making the document, attributed to him/them statements other than those actually made by them Q: Under the 4th mode of commission, (making untruthful statements), what are the requisites? 1. The offender makes in a document statements in a narration of facts 2. He has the legal obligation to disclose the truth of the facts narrated by him 3. The facts narrated by him are absolutely false 4. The perversion of truth in the narration of facts was made with the wrongful intent of injuring a third person

HIRYU KIMIKO OKUBO

Q: May the 2nd manner be committed by a private person? Yes, but the act – if committed by a private individual – is punishable under art.172, not art.171

CRIMINAL LAW II 78 K notes Q: What is meant by ‘legal obligation’ under this article? There is a law requiring the disclosure of the truth of the facts narrated Q: Does the person making the narration have to be aware of the falsity of the facts narrated by him? Yes Q: Suppose a Mayoral candidate wrote ‘eligible’ on the certificate of candidacy because he believed he was of sufficient age when he filled up the form, although he actually was not.Is he liable? No Q: Why not? Because the false narration must be one of FACTS not of a CONCLUSION OF LAW *NB: This is an actual case (see: People v. Yanza, GR. No. 12089, 29 April 1960) – A woman wrote ‘eligible’ because she believed that turning 23 yrs old upon assuming the councillorship was tantamount to being eligible for running for that position. Notice that she had no intent to make an untruthful narration of facts and she did not actually write a false fact, she made a conclusion of law regarding her eligibility. Had she written ‘I was born on ’, she would have been liable. Q: Must the narration of fact be completely false? Yes, because if there is some colourable truth in the statements, the crime of falsification is not deemed to have been committed Q: Is wrongful intent necessary when the document falsified is a public one? No Q: May falsification be committed by omission? Yes Q: Under the 5th manner of commission, (altering true dates), what is the controlling requisite? The date/s altered must be material to the document Q: Under the 6th manner of commission (making an alteration/intercalation in a genuine document etc), what are the requisites? 1. There is an alteration (a change) or intercalation (an insertion) 2. It was made on a genuine document 3. The alteration/intercalation has changed the meaning of the document and 4. The change made the document speak something else

*NB: to be liable, the alteration must affect the integrity or change the effects of the document. If it was made to safeguard the integrity of the same, there is no criminal responsibility for the act Q: Under the 7th manner of commission, (issuing in authenticated form a document purporting to be a copy of an actually non-existent original), must the offender act in his official capacity? Yes, the crime cannot be committed without taking advantage of official positions since these acts can be made only by the custodian/the one who prepared and retained a copy of the original document NOTES:

HIRYU KIMIKO OKUBO

Q: Suppose a document was made on 27 April 2012. The document actually bore ’25 April 2012’. The Secretary noticed this and changed the date to the 27th. Is she liable? No, alteration which speaks the truth is not falsification. What she did was not a falsification, it was a correction

CRIMINAL LAW II 79 K notes *It is the OFFICIAL CHARACTER of the offender which is mainly taken into consideration by art.171 – which is why intent to cause damage or intent to gain is NOT necessary to consummate the offense *Be that as it may, a PRIVATE INDIVIDUAL who cooperates with a public officer in the falsification of a public document is guilty of falsification by public officer (art.171) and incurs the same liability and penalty as the public officer (recall: particieps criminis – principal by indispensible cooperation) *If a false official or public document was used in a CRIMINAL PROCEEDING to adversely affect the trial or the admissibility of evidence (i.e.: to prevent or prohibit the investigation in a criminal case), the act is punished under Presidential Decree 1829 as an act constituting obstruction of justice. Note that this only applies if the falsification of the document is done in relation to a criminal proceeding

Art.172 FALSIFICATION BY PRIVATE INDIVIDUALS AND USE OF FALSIFIED DOCUMENTS Q: What are the punishable acts? 1. Falsification of public, official or commercial document by a private individual 2. Falsification of private documents by any person 3. Use of falsified documents a. Introducing falsified documents in a judicial proceeding **ELEMENTS: i. The offender knew that a document was falsified by another person ii. The false document is embraced in art.171 or in any subdivisions, nos. 1 or 2 of art.172 iii. He introduced said document in evidence in any judicial proceeding b. Use of falsified documents in any other transaction **ELEMENTS: i. The offender knew that a document was falsified by another person ii. The false document is embraced in art.171/ subdivisions nos.1 and 2 or art.172 iii. He used such document in transactions, but NOT in judicial proceedings iv. The use of the falsified documents caused damage to another or at least it was used with intent to cause such damage Q: What are the 4 kinds of documents that may be the subject of falsification? 1. Public Documents (i.e.: health sanitation forms, etc) 2. Official Documents (i.e.: letters to government department heads)

3. Commercial Documents (i.e.: receipts and vouchers) 4. Private Documents (you don’t need an example for this) Q: Who may commit this crime? -Private Individuals -Public officials who do NOT take advantage of their positions Q: Differentiate this from art.171 FALSIFICATION BY PUBLIC OFFICER, EMPLOYEE, NOTARY OR ECCLESIASTICAL MINISTER (ART.171)

FALSIFICATION BY PRIVATE INDIVIDUALS AND USE OF FALSIFIED DOCUMENTS (ART.172)

HIRYU KIMIKO OKUBO

*NB: here’s the difference: Public Documents are general in character and have for their Scope the public safety. Official documents are those issued in official capacity or by virtue of the duties or functions of office, they do not necessary target the public in general. DO NOT confuse ‘public’ or ‘official’ documents with ‘legislative’ documents – they have different natures and their respective falsifications are punished distinctly and separately.

CRIMINAL LAW II 80 K notes RE: Type of Document

-public -official -commercial

-public -official -commercial -private

RE: Persons Liable

Public Officer, Employee or Notary Public

Private Individuals

Ecclesiastical Minister, with respect to falsification of records or documents which affect the status of persons

Public Officers who do not take advantage of their public positions


Offender must take advantage of his public position

Offender must act in a private capacity

RE: Damage or Injury Caused

Damage is not a necessary element for consummation; Prejudice to a 3rd party is immaterial

Prejudice to a third party is primarily taken into account *nb: damage need not be material, damage to one’s honour is included *nb: damage is NOT necessary when the crime involves introducing falsified documents in judicial proceedings

Q: Suppose you prepared a solicitation letter and signed Atty. Amurao’s name. What crime did you commit? Falsification of a private document Q: And if you followed it up with a real solicitation and appropriated the amount to yourself? Estafa Q: Through a falsified Pawnshop ticket you were able to redeem certain pieces of jewelry. What crime did you commit? Theft through falsification of a commercial document Q: Suppose a public officer falsified a document, but he did not take advantage of his public position. What crime did he commit? Falsification under art.172

PUBLIC Created, executed or issued by a public official in response to the exigencies of public service or one wherein the execution of which, a public official intervened Any instrument authorized by a notary

OFFICIAL Issued by a public official in the exercise of the functions of his office While it may be considered a type of ‘public document’, the scope is not as general Required by a bureau to

PRIVATE Deeds or instruments executed by a private person without the intervention of a notary public or other person legally authorized, by which document some disposition or agreement is proved, or evidence set forth

COMMERCIAL Any document defined or regulated by the Code of Commerce or any other commercial law Used by merchants or businessmen to promote or facilitate trade

HIRYU KIMIKO OKUBO

Q: Define the four kinds of documents

CRIMINAL LAW II 81 K notes public or a competent public official, with the solemnities required by law

be filled by its officers for purposes of its record and information, for example

Q: May private documents be considered ‘public’? Yes, i.e.: deeds acknowledged before a notary public, even if falsification was committed before it was presented to the notary; or when they become parts of an official record and are certified by a public officer duly authorized to do so by law Q: May Estafa be committed through Falsification of Private Documents? No – the effect or consequence of estafa (i.e.: damage to third persons) is the same as that of falsifying a private document Q: How do you then determine which crime must be alleged in the complaint? By the order of commission – If estafa was committed first, then the crime is estafa. If the falsification came first, then the crime is falsification of a private document (*NB: ‘find out which crime was committed first –Atty.A) Q: Is damage to the public necessary under this crime? No Q: What about damage to a third party? Yes, there must be damage caused to a 3rd party or at least that the act was committed with intent to cause such damage Q: Suppose you committed the crime of falsification in Makati. You brought the document to Manila and were arrested here. Which court has jurisdiction? The court in Makati Q: Where may use of a falsified document be done? 1. In judicial proceedings 2. In other transactions Q: Suppose you falsified a document in an administrative case. Will you be liable? Yes, ‘other transactions’

Art.173 FALSIFICATION OF WIRELESS, CABLE, TELEGRAPH AND TELEPHONE MESSAGES; AND USE OF FALSIFIED MESSAGES * ‘wireless, cable and… telegraph… messages’, yeah? xD Q: What are the punishable acts? 1. Uttering fictitious, wireless, telegraph or telephone messages **ELEMENTS: a. The offender is an officer of employee of a private corporation engaged in the service of sending or receiving wireless, cable, telegraph or telephone messages b. He commits any of the following acts: i. Uttering fictitious, wireless, cable or telegraph/phone messages ii. Falsifying the said messages

HIRYU KIMIKO OKUBO

Q: When is the user of the falsified document deemed to be the author of the falsification? 1. If the use was so closely connected in time with the falsification, AND 2. The user had the capacity for falsifying the document

CRIMINAL LAW II 82 K notes 2. Falsifying wireless, telegraph or telephone messages **see: ELEMENTS of # 1 3. Using falsified messages **ELEMENTS: a. The accused knew that the wireless, cable, telegraph/phone message was falsified b. He used such falsified dispatch c. The use resulted in prejudice to a 3rd party or was made with intent to cause such prejudice Q: Give an example of 1)falsifying these messages; 2)Uttering them; and 3) using them

Art.174 FALSIFICATION OF MEDICAL CERTIFICATES, CERTIFICATES OF MERIT OR SERVICE AND THE LIKE Q: By whom is this committed, and how? 1. Any physician or surgeon who, in connection with the practice of his profession, shall issue a false certificate 2. Any public officer who shall issue a false certificate of merit or service, good conduct or similar circumstances 3. Any private person who shall falsify a certificate falling within the classes mentioned in the 2 preceding subdivisions Q: What is a certificate? Any writing by which testimony is given that a fact has or has not taken place Q: Give an example of a 1) false certificate of merit; 2) false certificate of service Q: Suppose you asked your father, a doctor, to give you a medical certificate so that you would be excused from your criminal law class today. Who may be liable under art.174? My father Q: And if it was your classmate who forged your father’s signature? My classmate is liable Q: What will be your liability if you presented it? Use of falsified certificates under art.175

Q: How is this committed? 1. A physician or surgeon had issued a false medical certificate or a false certificate of merit/service/good conduct or similar circumstances, OR a private person had falsified any of the said certificates 2. The offender knew that the certificate was false 3. He used the same Q: Give an example

SECTION SIX – MANUFACTURING, IMPORTING AND POSSESSION OF INSTRUMENTS OR IMPLEMENTS INTENDED FOR THE COMMISSION OF FALSIFICATION

HIRYU KIMIKO OKUBO

Art.175 USING FALSE CERTIFICATES


Art.176 MANUFACTURING AND POSSESSION OF INSTRUMENTS AND IMPLEMENTS OF FALSIFICATION Q: How is this committed? 1. By making or introducing into the PH any stamps, dies, marks, or other instruments or implements for counterfeiting or falsification 2. By possessing with intent to use the instruments or implements for counterfeiting or falsification made in, or introduced into the PH by another person Q: Suppose there was a raid on your house and the police officers saw equipment used for falsification or making Philippine money. May you be liable? No, mere possession does not make me liable – the possession must be accompanied by intent to use the equipment Q: Suppose your grandmother gave you instruments or implements for falsification. You hid it in your jewelry box as a memento of her. Will you be liable? No Q: Suppose you had the intent to use it when the need arises. Will you be liable? Yes

CHAPTER TWO OTHER FALSITIES SECTION ONE – USURPATION OF AUTHORITY, RANK, TITLE AND IMPROPER UNIFORMS AND INSIGNIA

Art.177 USURPATION OF AUTHORITY ANDOFFICIAL FUNCTIONS

Q: Give an example Q: You were at a party. A guest likes you, and in his effort to impress you, he introduced himself as Mayor Amurao, when in fact he is not. Is he liable? Yes Q: What if he introduced himself as the Vice President of Globe Telecommunications? He will not be liable – the position he falsely represents is not contemplated by the law Q: What is the difference between usurpation of authority and usurpation of official functions? USURPATION OF AUTHORITY

USURPATION OF OFFICIAL FUNCTIONS

HIRYU KIMIKO OKUBO

Q: How is this committed? 1. By knowingly and falsely representing oneself to be an officer, agent or representative or any department or agency of the Philippine Government or any foreign government 2. By performing any act pertaining to any person in authority or public officer of the Philippine Government or of a foreign government or any agency therefore, under pretence of official position, and without being lawfully entitled to do so

CRIMINAL LAW II 84 K notes RE: Consummation

Mere misrepresentation

Performance

RE: Overt Acts

Positive, Express and Explicit Representation

Actual performance of any act pertaining to 1) The Government itself 2) A person in authority 3) A public officer of government

Q: You violated a traffic regulation. The Metro Manila Development Authority (MMDA) confiscated your driver’s license. The MMDA officer was previously dismissed from service. Is the officer liable? Yes, He was not lawfully entitled to confiscate a license Q: A person introduced himself to Chinese merchants as a Bureau of Internal Revenue (BIR) agent. He examined books, records, accounts, etc. The merchants called the BIR and were told that the BIR does not have an employee by such a name. What crime did the person commit? Usurpation of official functions Q: Are there any other punishable acts under this article? Yes, art.177 also punishes the usurpation of authority of diplomatic or consular or any other official of a foreign government or those of the Philippine government

Art.178 USING FICTITIOUS NAME AND CONCEALING TRUE NAME

Q: What is a fictitious name? Any name which a person uses publicly, which he applies to himself without authority of law Q: What is meant by ‘authority of law’ in this case? 1. That a person’s name is appears in the records of the Civil Registry, for citizens of the Philippines 2. That an alien’s name is appears on the records of the Bureau of Immigration Q: Will the use of a fictitious name make one liable in all cases? No, there are exceptions Q: Give examples of the use of fictitious names which does not carry with it any criminal liability

HIRYU KIMIKO OKUBO

Q: How is this committed? 1. Use of a fictitious name **ELEMENTS: a. The offender uses a name other than his real name b. He uses that fictitious name publicly c. His purpose is – To conceal a crime; or To evade the execution of a judgment; or To cause damage to public interest 2. Concealing true name **ELEMENTS: a. The offender conceals – His true name; and All other personal circumstances b. His purpose is to conceal his true identity

CRIMINAL LAW II 85 K notes Q: If damage is caused by concealing one’s true name to a private individual, and not the public, what crime is committed? Estafa

Art.179 ILLEGAL USE OF UNIFORMS OR INSIGNIA Q: How is this committed? 1. The offender makes use of insignia, uniform or dress 2. The insignia, uniform or dress pertains to an office NOT held by the offender OR to a class of persons of which he is not a member 3. The said insignia, uniform or dress is used publicly and improperly Q: Give an example Q: Suppose a PNP officer is dismissed from the service but he still wore his uniform when he attended a public function. Is he liable? Yes, he was already dismissed from office and the uniform now pertains to an office which he does not hold Q: And if a lay person wore the ecclesiastical robes of a priest? That person is liable, the clothing he wore pertains to a class of persons which he is not a member of Q: A group of prostitutes wore the uniforms of Assumption College, College of the Holy Spirit and Centro Escolar University. Are they liable? Yes, the dress they wore pertains to a class of which they are not members Q: Does the uniform/insignia/dress have to be an exact replication of the original one? No, a colourable resemblance calculated to deceive the common run of people is sufficient Q: Is the wearing or a badge or emblem of rank of the Armed Forces of the Philippines punishable under this article? No, it is punishable under Republic Act 439 Q: What about the manufacture or sale of these military uniforms without proper authority? The manufacture or sale is not punishable under art.179, but under Executive Order No. 297

Art.180 FALSE TESTIMONY AGAINST A DEFENDANT Q: How is this committed? 1. There is a criminal proceeding 2. The offender testifies falsely under oath against the defendant therein 3. He knows that the testimony he gives is false 4. The defendant against whom the false testimony is given is either acquitted OR convicted by final judgment Q: Suppose you testified falsely against a battalion of solders in a court martial proceeding. Are you liable? No – court martial proceedings are executive in nature and are not criminal proceedings

HIRYU KIMIKO OKUBO

SECTION TWO – FALSE TESTIMONY


Q: Suppose that in a homicide case, the offender testified falsely but the testimony was not believed by the court. Is he liable? Yes Q: Why is that? Credence lent by the court to the testimony is immaterial. What is punishable is the act of giving a false testimony per se Q: You testified falsely in a civil case. Are you liable? No, not under art.180 Q: And if you testified falsely in a petition for adoption? In an electoral case before the HRET? I am not liable, the foregoing are special proceedings, not criminal proceedings Q: By the way, what is a ‘civil action’? An action brought for – 1. The protection or enforcement of a right 2. The prevention or redress of a wrong Q: You testified in a criminal case against your neighbour. Your testimony was a false one, one beyond the realm of normal human experience, and the court found it to be so. Are you liable? Yes Q: Suppose you testified falsely in your own favour. May you be prosecuted for false testimony? Yes – the right to testify on one’s behalf does NOT carry with it the right to testify falsely Q: How is the offender punished as far as false testimony goes? The penalty depends upon the sentence of the defendant (i.e.: acquittal or conviction)

Art.181 FALSE TESTIMONY FAVORABLE TO THE DEFENDANT Q: Why is finality a necessary element here, as well as in art.180? Because the penalty for both crimes depends upon the punishment to which the accused is finally sentenced

Q: Suppose you happen to be the defendant. You voluntarily take the witness stand and testify falsely, albeit favourably in your behalf. Are you liable? Yes Q: And if you were asked a question and you merely denied the commission of the crime, are you liable? No

Art.182 FALSE TESTIMONY IN CIVIL CASES Q: How is this committed? 1. The testimony must be given in a civil case 2. It must relate to the issues presented in said case

HIRYU KIMIKO OKUBO

Q: What if the false testimony did not directly influence the decision of acquittal, or did not directly benefit the accused? It is still punishable, Intent to favour the accused is sufficient for criminal liability to attach

CRIMINAL LAW II 87 K notes 3. It must be false 4. It must be given by the defendant knowing it to be false 5. It must be malicious and given with intent to affect the issues presented in the case Q: Suppose a person died intestate. The heirs cannot agree extrajudicially so they brought the case for judicial settlement. In the course of the settlement hearings, one heir testified falsely. Is he liable? No – Judicial settlement is NOT a civil case, it is a special proceeding He may be liable for perjury Q: Suppose in a guardianship proceeding that was pending in court, you testified falsely in your favour. Are you liable? What crime did you commit? No, I am not liable under art.181 – Guardianship proceedings are special in nature I committed perjury Q: In an election protest, the defeated candidate testified falsely. Is he liable? No, an electoral case is special in nature Q: What is the character of the penalty in this case? The penalty in art.182 depends on the amount of the controversy

Art.183 FALSE TESTIMONY IN OTHER CASES AND PERJURY IN SOLEMN AFFIRMATION Q: What are the ways of committing perjury? 1. By falsely testifying under oath; or 2. By making a false affidavit *NB: Falsely testifying under oath should NOT be done in a judicial proceeding, else arts.180/181/182 apply Q: How is perjury committed? 1. The accused made a statement under oath or executed an affidavit upon a material matter 2. The statement or affidavit was made before a competent officer, authorized to receive and administer oaths 3. In that statement/affidavit, the accused made a wilful and deliberate assertion of a falsehood 4. The sworn statement or affidavit containing the falsity is required by law

*NB: think: for people who believe in the existence of God. If you don’t, you undertake an affirmation Q: How is it different from an affirmation? An affirmation does not involve the idea of belief in God and in His vengeance Q: Why is an oath/affirmation necessary, to begin with? An oath or affirmation exposes the witness/affiant to the peril of perjury should a falsehood be committed *NB: This is why you’re required to take an oath on things like filling in forms – giving testimony, etc., should you chose to lie notwithstanding your oath/affirmation, criminal liability for perjury

HIRYU KIMIKO OKUBO

Q: What is an oath? Any form of attestation by which a person signifies that he is bound in conscience to perform an act faithfully and truthfully. It involves the idea of calling upon God to witness what is averred as truth, and it is supposed to be accompanied by an invocation of His vengeance or a renunciation of his favour in the event of a falsehood

CRIMINAL LAW II 88 K notes attaches. That’s why unverified complaints are prone to dismissal – legally speaking; nobody is willing to believe a statement of facts unless the person making the statement puts his own neck on the chopping block by swearing – under pain of criminal liability – that he is speaking the truth Q: An employee in a labour case testified falsely. What crime did he commit? Perjury, labour cases are quasi-judicial in nature Q: Supposing you and your fiancé are applying for a marriage license. Your fiancé wrote his civil status to be ‘single’ when in fact his previous marriage is still valid. What crime did he commit? Perjury – Civil status is a material matter in an application for marriage license Q: Suppose he wrote ‘Chinese’ as his citizenship, instead of ‘Filipino’ as should be the case. What crime did he commit? He did not commit any crime – Citizenship is NOT a material matter in an application for marriage license *NB: note how the concept of materiality is a relative one, depending on the circumstances and facts Q: Suppose your fiancé is a widower and he wrote ‘single’ as his civil status? He did not commit any crime, the loss of his previous wife extinguished the marriage, the license will still be issued and he is in fact single *NB: ah, persons. It helps to reason with other branches of law – as long as you’re sure of what you’re saying Q: Suppose you wrote ’23 years old’ as your age in that same application for a marriage license. You are in fact 16. What crime did you commit? Perjury – Age is a material matter in an application for marriage license. Only persons who have attained legal age are allowed to apply for one Q: Define a ‘material matter’ A material matter is – 1. The main fact which is the subject of the inquiry or any circumstance which tends to prove that fact; or 2. Any fact or circumstance which tends to corroborate or strengthen the testimony relative to the subject of inquiry; or 3. One which legitimately affects the credibility of any witness who testifies

Q: Suppose you want to run as Congressman. In the Certificate of Candidacy, you wrote ’40 years old’ when in fact you are only 20. What crime did you commit? Perjury – Age is a material matter, sec.6, art.VI of the 1987 Constitution fixes the minimum age for a Congressman at 25 years Q: Suppose you wanted to be Mayor of your town. You wrote your age as ’35 years old’, when you are only 20. What crime did you commit? Perjury Q: You wanted to run for Senator. You wrote your age as ’45 years old’ when you really are 50. Are you liable? No, Either way, I am still qualified to run

HIRYU KIMIKO OKUBO

*NB: the test of materiality is whether a false statement can influence the tribunal, not whether it actually does or could probably influence the result of trial (People v. Banzil, CA-GR No. 22964-R, 56 OG 4929)

CRIMINAL LAW II 89 K notes Q: Supposing you finished Law here at San Beda and applied to take the Bar Examinations. You were previously convicted of a crime, but you declared in your application that you do not have a criminal record. Are you liable? Yes, previous conviction is a material matter in an application for taking the bar exams Q: If you gave a false testimony relating to an act of terrorism, what crime did you commit? A violation of Republic Act 9372 – the Human Security Act and Terrorism Law *NB: Under the said law, any false testimony given in relation to the crime of Terrorism, as defined under the statute, are punishable thereby Q: May perjury be committed through negligence or imprudence? No, one of the requisites of perjury is wilful and deliberate assertion of falsehood *Here’s a trick: when the elements of a crime require criminal intent, think: wilful and deliberate/intentional/I-really-mean-to-do-this-and-screw-the-consequences kind of assertion of will, good faith is a defence. Obviously, if you DIDN’T mean to do it, or you did it without any malice, you’ve negated the element of criminal intent – in which case, you knock out one essential requisite of the crime charged (Kimiko, paraphrasing Atty.A – yeah, I’m bad at sounding serious) Q: Is good faith a defence? Yes, because the false assertion must be intentional Q: Suppose you executed a false Affidavit of Loss. You stated that your driver’s license was lost when your wallet was snatched, when in fact the license had been confiscated. What crime did you commit? Perjury Q: Same facts, except that you had the affidavit notarized by someone whose license for the job was already expired. May you be liable for perjury? No, the element of competent authority is lacking I may, however, be liable for Falsification of Private Documents Q: Who is a ‘competent’ person, in the contemplation of this article? Someone authorized to administer oaths – A person who has the right to inquire into the questions presented to him upon matters under his jurisdiction

Q: Supposing you and your fiancé executed an application for marriage license. You had it notarized by someone who, by all appearances, was a notary public. He turned out to be a cigarette vendor. Will you be liable? No, there is a lack of a competent person Q: Suppose you are placed under oath before the Secretary of the Civil Registry of your municipality. Will you be liable for perjury if you assert a falsehood? No, the secretary is not a competent person within the contemplation of the provision Q: Suppose the Senate invited Jocjoc Bolante to one of the Senate hearings regarding the Fertilizer Scam. Bolante made a wilful assertion of falsehood. What crime did he commit? Perjury Q: Suppose you are a journalist. In your column you glorified Bolante as a person of genuine honesty and integrity, one to be emulated by all Filipinos. What crime did you commit?

HIRYU KIMIKO OKUBO

Q: Is it necessary that there be a specific provision of law requiring the affidavit/sworn statement to be made? Not really. HOWEVER, the 4th element may be read to say ‘that the sworn statement containing the falsity is authorized by law’ (i.e.: as long as it was made for a legal purpose) (People v. Angangco, unpublished – GR No. L-47693, October 12, 1943)

CRIMINAL LAW II 90 K notes Unlawful Use of Means of Publication (art.154, 2nd manner of commission) *NB: ‘By encouraging disobedience to the law or to the constituted authorities or by praising, justifying, or extolling any act punished by law, by the same means or by words, utterances, or speeches’ (art.154, par.2) Q: Supposing in a homicide case, you testified as a witness and stated that you were actually present during the crime when in fact, you were sleeping in your own residence. The accused was found guilty as charged. What crime did you commit? False Testimony against a Defendant (art.180); (see: elements of art.180) Q: Supposing in an application for marriage license, you placed ‘single’ as your civil status. A family court previously promulgated a Decree of Legal Separation with regards to your marriage. Will you be liable for perjury? Yes, a Decree of Legal Separation does not extinguish the matrimonial ties. It does not grant the right to re-marry, because it is merely separation ‘a mensa et thoro’ (in bed and board). My civil status does not revert back to ‘single’ by virtue of the decree Q: Suppose you are applying for the Civil Service Examination. In the application, you declared that you believe you are a person of good moral character. You were previously convicted of rape, homicide and physical injuries. Are you liable? No Q: Why not? My declaration was one in the nature of an opinion, not a statement of fact Q: Suppose Miss Philippines submitted an affidavit stating that she is beautiful. The statement is false. Is she liable? No, she made a statement of opinion *NB: notice here that there’s a key difference between making a false statement of FACT and a false OPINION. Perjury pertains to false statements of facts. You’re not allowed to lie under oath, you are however entitled to false opinions, think: delusions of grandeur :D Q: Is perjury a crime other than false testimony in criminal/civil cases? Yes, It pertains to perversions of truth in non-judicial proceedings Q: What if you made false statements to the Public Prosecutor during the preliminary investigation; or to the Presiding Judge during pre-trial? I may still be liable for perjury

Q: Are 2 contradictory sworn statements sufficient to convict someone of perjury? No, the prosecution must prove which of the 2 is false and show by OTHER EVIDENCE (not the contradictory statements) that it is indeed false and was made knowingly

NOTES *Under the Revised Penal Code, there is no longer a separate crime of ‘SUBORNATION OF PERJURY’. This crime used to be penalized by the Old Code but was deleted upon revision. For purposes of definition, subornation of perjury is committed by a person who knowingly and wilfully procures another to swear falsely; and the witness suborned actually does testify under circumstances rendering him guilty of perjury.

HIRYU KIMIKO OKUBO

Q: Why? Because False Testimony in judicial proceedings contemplates an actual trial where a judgment of conviction or acquittal is rendered

CRIMINAL LAW II 91 K notes *The direct induction of a person by another to commit perjury may be punished under art.183 in relation to art.17 (hello, particeps criminis) – The person who commits subornation of perjury is a principal by inducement in plain perjury, and the person suborned is a principal by direct participation, both being liable for plain perjury.

Art.184 OFFERING FALSE TESTIMONY IN EVIDENCE Q: How is this committed? 1. The offender offered in evidence a false witness or false testimony 2. He knew the witness or testimony to be false 3. The offer was made in a judicial OR official proceeding Q: Does the false witness have to testify? Yes *NB: Under the Rules for the Offer of Evidence (Sec.35, Rule 132, Rules of Court), as far as testimonial evidence is concerned, the offer begins the moment a witness is called to the stand and interrogated by counsel. Obviously, the witness has to testify.

NOTES: *Even if there is a conspiracy to offer false witness (between the witness himself and the person offering him), if the witness desisted before testifying, the latter is not liable. The party not having desisted is liable *Art.184 applies when the offender does NOT induce a witness to testify falsely, but merely offers the false witness in evidence. If the former happens, i.e.: if there is induction, art. 180/181/182/183 in relation to art.7, par.2 applies *If perjury was committed in connection with the Anti-Terrorism Law (RA 9372), the act is punishable under RA 9372

CHAPTER THREE FRAUDS SECTION ONE – MACHINATIONS, MONOPOLIES AND COMBINATIONS

Q: How is this committed? 1. By 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. The accused solicited any gift/promise from any of the bidders c. Such gift/promise was the consideration for his refraining from taking part in that public auction d. The accused had the intent to cause the reduction of the price of the thing auctioned 2. By attempting to cause bidders to stay away from an auction by threats, gifts, promises, or any other artifice **ELEMENTS:

HIRYU KIMIKO OKUBO

Art.185 MACHINATIONS IN PUBLIC AUCTIONS

CRIMINAL LAW II 92 K notes a. b. c. d.

There is a public auction The accused attempted to cause the bidders to stay away from that public auction It was done by threats, gifts, promises, or any other artifice The accused had the intent to cause the reduction of the price of the thing auctioned

Q: What is the reason behind the law? To ensure free access to, as well as the integrity of public auctions Q: What is the purpose of an auction? To get the highest bid for the thing auctioned Q: What consummates the crime? -Mere solicitation, in the first manner -Mere attempt to cause bidders to stay away through the use of threats, gifts, promises, or any other artifice, in the second manner Q: Suppose you offered a gift in order to get a bidder to stay away from the auction. Your offer was not accepted. Are you liable? Yes, the mere attempt consummates the crime Q: Give an example

Art.186 MONOPOLIES AND COMBINATIONS IN RESTRAINT OF TRADE Q: What are the punishable acts? 1. Combination to prevent free competition in the market - By entering into any contract/agreement or taking part in any conspiracy or combination in the form of a trust or otherwise, in restraint of trade or commerce or to prevent by artificial means free competition in the market 2. Monopoly to restrain free competition in the market - By monopolizing any merchandise or object of trade or commerce, or by combining with any other person/s to monopolize said merchandise or object in order to alter the prices thereof by spreading false rumours or making use of any other artifice to restrain free competition in the market Q: May this be committed by a single person? No Q: Will you consider this as conspiracy? Yes

SECTION TWO – FRAUDS IN COMMERCE AND INDUSTRY

Art.187 IMPORTATION AND DISPOSITION OF FALSELY MARKED ARTICLES OR MERCHANDISE MADE OF GOLD, SILVER, OR OTHER PRECIOUS METALS OR THEIR ALLOYS Q: How is this committed?

HIRYU KIMIKO OKUBO

Q: Give an example of this


The offender imports, sells, or disposes of any of those articles or merchandise (gold, silver, other precious metals and their alloys) 2. The stamps, brands or marks of those articles of merchandise fail to indicate the actual fineness or quality of those metals/alloys 3. The offender knows that the stamps, brands, or marks fail to indicate actual fineness Q: What are the merchandise involved? 1. Gold 2. Silver 3. Precious metals 4. Gold/silver/precious metal alloys Q: What are the standards used for punishing the failure to indicate actual fineness? When actual fineness is – -less than one-half karat for gold -less than four one-thousandths for silver -less than three one-thousandths for other articles such as watches

*NB: ARTS.188-189: NO LONGER APPLICABLE

HIRYU KIMIKO OKUBO

- oOo END OF MIDTERM COVERAGE oOo –

CRIMINAL LAW II 94 K notes MIDTERM REMINDERS: THE SYLLOGISM STYLE OF REASONING *NB: This is how Atty. Amurao wishes students to answer his questions. He gave this reminder during the last meeting before the exams Three components (in THIS particular order): I. Major Premise II. Minor Premise III. Conclusion The major premise is the ANSWER to the problem. It may be a PROVISION OF LAW, a SUPREME COURT DECISION or an ESTABLISHED LEGAL PRINCIPLE The minor premise is composed of the PERTINENT AND RELEVANT FACTS of the problem The conclusion is the APPLICATION of the minor premise to the major premise. It should SUPPORT the ANSWER. If it doesn’t, there’s something wrong with your analysis.

SAMPLE: A police officer entered your house by opening the door which at the time was closed. What crime did he commit? I. MAJOR PREMISE: Violation of Domicile II. MINOR PREMISE OR FACTS: Violation of Domicile is committed by… xxx Any public officer gaining entry into another’s dwelling without the homeowner’s permission. A dwelling is defined as a place which satisfies the domestic life of a person. The homeowner’s house, in this case, amply qualifies under the definition of ‘dwelling’. Moreover, the fact that the door to the dwelling was closed constitutes a form of implied prohibition. While it may not have been locked or there may not have been a sign which says ‘Do Not Enter’ or a prohibition of that nature, it is clear nonetheless that by closing the door, the owner did not wish strangers to enter without his leave. It is true that the provision admits of certain exceptions, i.e.: that of entry by virtue of a validly obtained search warrant, but the facts do not state that the officer did in fact possess such a warrant. III. CONCLUSION: The acts of the officer put him squarely within the contemplation of the law insofar as this crime is concerned. Therefore, by opening the closed door without first having secured the permission of the owner, the officer committed the crime of Violation of Domicile.

We asked the Professor if it was necessary to specifically mention the pertinent article and this is what he said: ‘There is no need to, unless you are absolutely sure of the numbers and headings you are citing. Do NOT cite them unless you are certain they are the right ones, else you will be given deductions. To be safe, you may use the general phrase ‘under the law…’ Do not court disaster.’ –Atty. A Well there you have it. Basic rules apply: keep margins neat and straight, do not write on the back page (do NOT, because he certainly gives deductions for these infractions), do NOT tear or fold pages of the booklet, do NOT use correction fluids (that’s marking, after all), and refrain from using parentheses or completely shading out wrong words/phrases. One clean line – a STRIKETHROUGH SUCH AS THIS – suffices. Begin on a new page for every item.Indications as to answers are allowed, i.e.: use of phrases such as ‘please see answer in numeral II’ etc. Good Luck. Fight on, fight well ~ Kimiko ;)

HIRYU KIMIKO OKUBO

Of course, you don’t have to actually bullet your answers and label them as ‘major/minor premise, conclusion’ – this was merely an illustration.


TITLE SIX CRIMES AGAINST PUBLIC MORALS CHAPTER ONE GAMBLING AND BETTING PRESIDENTIAL DECREE 1602 PRESCRIBING STIFFER PENALTIES IN ILLEGAL GAMBLING *NB: PD 1602 REPEALED the provisions of arts.195-199 of the Revised Penal Code, Republic Act 3063, and Presidential Decrees 483, 449, 510 and 1306

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Gambling: Any game or scheme, whether upon chance or skill, wherein wagers consisting of money, articles or value consisting of money, articles or value; or representatives of value are at stake or made



Punishable Games: 1. Cockfighting, jueteng, jai alai or horse racing, including bookie operations and game fixing, numbers, bingo and other forms of lotteries 2. Cara y cruz, pompiang or the like 3. 7-11 and any game using dice 4. Black jack, lucky nine, poker and its derivatives, monte, baccarat, cuajo, panguigue, and other card games 5. Pak que, high and low, mah-jong, 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, Ping-Pong, and other forms of individual or team contests which include game fixing, point shaving and other machinations 9. Banking or percentage games, or any other game or scheme, whether upon chance or skill, wherein wagers consisting of money, articles of value or representatives of value are at stake or made

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Illegal Numbers Games: Any form of illegal gambling activity which uses numbers or combinations thereof as factors in giving out jackpots, prizes or returns

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Lottery: A scheme for distribution of prizes by chance among persons who have paid, or agreed to pay, a valuable consideration for the chance to obtain a prize

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ELEMENTS of LOTTERY: 1. Consideration 2. Chance 3. Prize or some advantage or inequality in amount or value which is in the nature of a prize

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ELEMENTS of KNKOWINGLY PERMITTING GAMBLING TO BE CARRIED ON IN A PLACE OWNER OR CONTROLLED BY THE OFFENDER 1. A gambling game was carried on in an inhabited or uninhabited place or in any building, vessel or other means of transportation 2. The place, building, vessel or means of transportation is owned or controlled by the offender 3. The offender permitted the carrying on of such game, knowing that it is a gambling game

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Maintainer: The person who sets up and furnishes the means with which to carry on the gambling game or schemes

HIRYU KIMIKO OKUBO

SUMMARY OF IMPORTANT DEFINITIONS AND PUNISHABLE ACTS


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Conductor: The person who manages or carries on the gambling game or scheme

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Betting:Betting money or any object or article of value or representative of value upon the result of any game, race or other sports contests

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Game Fixing: Any arrangement, combination, scheme or agreement by which the result of any game, race or sport contest shall be predicted and/or known other than on the basis of the honest playing skill or ability of the player or participants

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Point Shaving: Any arrangement, combination, scheme or agreement by which the skill or ability of any player or participant in a game, race or sport contest to make points or scores shall be limited deliberately in order to influence the result thereof in favour or one or the other team, player or participant therein

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Game Machination: Any other fraudulent, deceitful, unfair or dishonest means, method, manner or practice employed for the purpose of influencing the result of any game, race or sport contest

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Bet-taker or promoter: [In cockfighting] A person who calls and takes care of bets from owners of both gamecocks and those of other bettors before he orders commencement to the cockfight and thereafter distributes won bets to the winners after deducting a certain commission

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Bettor: [In cockfighting] Any person who participates in cockfights with the use of money or 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 also be the owner of a fighting cock.

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Totalizer: [In horse racing] A machine for registering and indicating the number and nature or bets made on horse races

Q: What is gambling? Q: May a spectator be criminally liable? No Q: Give examples of games punished under our gambling laws (see: table above, enumerated games)

Q: In the case of games such as basketball, volleyball, etc., does the mere playing of them carry any liability? No, not if they were merely played. They become punishable games when they involve pointshaving, game-fixing, etc. Q: Who is a gambler? Q: Who is a maintainer? Q: Suppose you are the owner of a boat, and there is gambling going on in it. Are you liable? It depends: -If I can prove that I have NO knowledge of the gambling, I am not liable

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Q: In the case of punishable games specified by the law, is it necessary that there should be actual betting involved? No, even if there were no actual bets placed, so long as the games are played – and the games are among those enumerated by the law – criminal liability already attaches to those who play them

CRIMINAL LAW II 97 K notes -If the gambling takes place with my knowledge, I am liable Q: What is a lottery? Q: Is lottery a form of gambling? Yes Q: Does the consideration made by the gambler have to be in relation to the prize obtained, in order to be liable? Yes Q: Suppose that in a certain mall, customers were told that for every purchase worth Php 100.00, they will be entitled to a raffle ticket. The prize for the final draw is a Mazuratti (a car – a very expensive car ;) -kimi). Is this lottery? Yes Q: If you participated, do you get the full value for your money? Yes Q: Is the prize, theMazuratti, merely incidental? Yes Q: What is the full value of your money? The purchase worth Php 100.00 Q: Is this a punishable form of lottery? No Q: Why not? Because I get the full value for my money – this fact takes the game out of the contemplation of the laws penalizing lottery. *NB: Notice here that the mechanics of the game do not involve betting in order to win a prize, and I did not buy the ticket for the sole consideration of winning the Mazuratti. I bought Php 100.00 worth of other items and was given a raffle ticket. This is not a punishable form of lottery. Q: You mean to say that not all forms of lottery are punishable? Yes, not all forms are punishable Q: What is point shaving? Q: Give an example

Q: Give an example Q: What is betting?

CHAPTER TWO OFFENSES AGAINST DECENCY AND GOOD CUSTOMS Art.200 GRAVE SCANDAL

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Q: What is game fixing?

CRIMINAL LAW II 98 K notes Q: How is this committed? 1. The offender performs an act or acts 2. Such acts are highly scandalous as offending against decency or good customs 3. The highly scandalous conduct is not expressly falling within any other article of the Revised Penal Code 4. The act complained of is committed in a public place or within public knowledge or view Q: What do you mean by ‘decency’? Propriety of conduct, modesty, or good taste Q: What are customs? Established usage, social conventions carried on by tradition and enforced by social disapproval of any violation thereof Q: What is a grave scandal? A scandal that 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 Q: Suppose the scandal was committed in the privacy of one’s room, is it a grave one? No, the element of publicity is missing Q: Give an example

Q: How is this committed and by whom? 1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals 2. The authors of obscene literatures, published with their knowledge in any form, the editors published with their knowledge in any form, the editors publishing such literature; and the owners or operators of the establishment selling the same 3. Those who, in theatres, fairs, cinematographs or any other place, exhibit indecent or immoral plays, scenes, acts or shows, whether live or on film, which are proscribed by virtue hereof, shall include those which – a. Glorify criminals or condone crimes; b. Serve no other purpose but to satisfy the market for violence; c. Offend any race or religion; d. Tend to abet traffic in, and use of, prohibited drugs; and e. Are contrary to law, public order, morals, good customs, established policies, lawful orders, decrees and edicts; and 4. Those who shall sell, give away, or exhibit films, prints, engravings, sculptures, or literature which are offensive to morals Q: What are the tests of obscenity? -Whether the tendency of the of the matter charged as obscene is to deprave or corrupt those whose minds are open to such immoral influence, and into whose hands such a publication may fall -Whether or not such publication shocks the ordinary sense of men as an indecency Q: Give examples of obscene literature Q: What is the test of obscenity for nude pictures?

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Art.201 IMMORAL DOCTRINES, OBSCENE PUBLICATIONS AND EXHIBITIONS AND INDECENT SHOWS

CRIMINAL LAW II 99 K notes Whether the motive of the pictures, as indicated by them, is pure and impure; or whether it is naturally calculated to excited impure imaginations Q: When may authors or editors of obscene literature be held liable? When the literatures are published with their knowledge Q: Give an example of the use of nude pictures that do not expose the user to any criminal liability i.e.: A painting made for art’s sake *NB: nude pictures, even if they possess only a slight degree of obscenity, if used for commercial purposes, come under the purview art.201 Q: Is mere possession of nude pictures punishable? No

Art.202 VAGRANTS AND PROSTITUTES Q: Who are vagrants? 1. Any person having no apparent means of subsistence who has the physical ability to work and who neglects to apply him/herself to some lawful calling 2. Any person found loitering about public or semi-public building 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 of this code, shall be found loitering in any inhabited or uninhabited place belonging to another without any lawful or justifiable purpose 5. Prostitutes *For the purposes of this article, women who for money or profit habitually engage in sexual intercourse OR lascivious conduct, are deemed to be prostitutes Q: Suppose X is an able-bodied man, almost always seen in public places. His means of support is his mother who is laundrywoman. Is he a vagrant? Yes Q: Suppose the mother is employed in a Fortune 500 company and can provide for the support of her son. Is he still considered a vagrant? Yes – he possesses all the characteristics enumerated by art.202: he is able-bodied, has no apparent means of subsistence and does not apply himself to some lawful calling

Q: Who is a prostitute? A woman who, for money or profit habitually engages in – 1. Sexual intercourse; OR 2. Lascivious conduct Q: From the legal point of view, can a man be a prostitute? No Q: A woman had sexual intercourse for 2 weeks but she did not ask her customers for money. Is she a prostitute? No

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Q: May a woman who has been in the prostitution business for the last 20 years still remain a virgin? (*trolling moment xD ) Yes

CRIMINAL LAW II 100 K notes Q: Suppose she did it only once this year, and asked for money as compensation for her services. Is she a prostitute? No, the element of habitual frequency is lacking Q: Suppose she does it regularly with one man, charging him php 50.00 per session. Is she a prostitute? Yes Q: Suppose she had sex with a man for 6 months. During those months, the man did not pay her although he did keep promising to give her the money. Is she a prostitute? Yes. The promise of payment is ‘profit’ as far as she is concerned Q: Is it necessary that she actually receives the money? No Q: Suppose she asks for jewelry for every sexual act. Is she a prostitute? Yes, jewelry is profit as far as she is concerned *NB: profit is the controlling motive in prostitution, and that ‘profit’ does not necessarily have to be in monetary form Q: The police conducted a raid on a house in Binondo known to be a whorehouse. They opened a cubicle and surprised a woman and her customer in the sexual act. Is she liable? No, the element of habituality is lacking Q: Suppose there was proof that the woman had been with other men that day? She is liable Q: Will the man be liable? Yes, as a principal by direct participation (*on a whole new level, yeah? lol) Q: Who is a pimp? One who provides gratification for the lust of others Q: Who is a ruffian? A brutal, violent, lawless persons Q: When is one considered to be ‘dissolute’? When he is lax and unrestrained, as well as immoral

TITLE SEVEN CRIMES COMMITTED BY PUBLIC OFFICERS CHAPTER ONE PRELIMINARY PROVISIONS *Contrary to the practice of some criminal law professors (i.e.: they skip this Title, because to their mind this Title represents everything wrong with the criminal justice system, think: never really catching the perpetrators), Atty. A spends a considerable amount of time for recits on this coverage. To HIS mind, this Title is made all the more important because of the nature of the offenders and the fact that a separate court altogether – the Sandiganbayan – has jurisdiction over offenses committed under this Title. I suppose his thinking has influenced me a bit, and at the risk of sounding impertinent, I would like to spell it out: Notwithstanding general pessimism, this Title is important. -Kimiko

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Q: If the prostitute caught in Binondo happened to be 15 years old, what is her liability? She has none. Minors are exempt from criminal liability, by virtue of RA 9344


Art.203 WHO ARE PUBLIC OFFICERS Q: Who are considered public officers? 1. Those whoare taking part in the performance of public functions OR who are performing in the government or in any of its branches public duties as an employee, agent or subordinate official of any rank and class; 2. Those whose authority to take part or perform public functions must be – a. By direct provision of law; b. By popular election; or c. By appointment by competent authority Q: Are employees of Government-Owned and Controlled Corporations (GOCCs) considered ‘public officers’? Yes Q: Suppose the City of Manila entered into a contract with XYZ corporation to maintain the cleanliness of the City Hall. The contract provided that the corporation would assign its men to clean the hall. Are these people considered public officers? No Q: Is their work a public function? Yes Q: Are they appointed by the City Government itself? No, they were assigned or appointed by XYZ corporation – a private corporation

CHAPTER TWO MALFEASANCE AND MISFEASANCE IN OFFICE   

Misfeasance: Improper performance of some act which might be lawfully done Malfeasance: Performance of some act which ought not to be done Nonfeasance: Omission of some act which ought to be performed

SECTION ONE – DERELICTION OF DUTY

Q: How is this committed? 1. The offender is a judge 2. He renders a judgment in a case submitted to him for decision 3. The judgment is unjust 4. He knows that the judgment is unjust Q: What is a ‘judgment’? The final consideration and determination of a court competent jurisdiction upon the matters submitted to it, in an action or proceeding Q: When does a judgment become ‘unjust’? When it is – 1. Contrary to law

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Art.204 KNOWINGLY RENDERING UNJUST JUDGMENT

CRIMINAL LAW II 102 K notes 2. Not supported by evidence; or 3. Both Q: What may be the sources of an unjust judgment? 1. Error 2. Ill-will or Revenge 3. Bribery Q: What is the ground for liability here? Bad faith Q: Suppose an appellant was unhappy with a decision handed down by the Court of Appeals. May he file for Knowingly Rendering Unjust Judgment? No Q: Why not? Art.204 does not apply to members of a collegiate court Q: Give examples of collegiate courts in our justice system -The Supreme Court -The Court of Appeals -The Sandiganbayan

Art.205 JUDGMENT RENDERED THROUGH NEGLIGENCE Q: How is this committed? 1. The offender is a Judge 2. He renders a judgment in a case submitted to him for decision 3. The judgment is manifestly unjust 4. The judgment is due to his inexcusable negligence or ignorance Q: What is the standard for measuring a decision that is ‘manifestly unjust’? When the decision is so patently contrary to law that even a person possessing a meager knowledge of the law cannot doubt the injustice Q: Is this synonymous with abuse of discretion or error of judgment? No, abuse of discretion and error of judgment are not punishable Q: Is good faith a defence here? No

Art.206 UNJUST INTERLOCUTORY ORDER Q: How is this committed? 1. The offender is a Judge 2. 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 negligence or ignorance

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Q: Will any degree of negligence make the Judge liable? No, the negligence must be inexcusable

CRIMINAL LAW II 103 K notes Q: What is an interlocutory order? One issued by the court between the commencement and the end of a suit or action and which decides some point or matter. It is NOT, however, a final decision of the matter in issue *NB: Test for determining whether an issuance by the court is interlocutory or not: Does it leave something to be done in the trial court with respect to the merits of the case? If it does, it is interlocutory. If not, it is a final decision. Q: Must an interlocutory order be related to the main issue of the case? No Q: Give examples of interlocutory orders i.e.: Orders granting preliminary injunction; or appointer a receiver; Temporary Restraining Orders

Art.207 MALICIOUS DELAY IN THE ADMINISTRATION OF JUSTICE Q: How is this committed? 1. The offender is a Judge 2. There is a proceeding in his court 3. He delays the administration of justice 4. The delay is malicious/caused by the Judge with deliberate intent to inflict damage on either party in the case Q: Is mere delay punishable? No

Q: What are the punishable acts? 1. Maliciously refraining from instituting prosecution against violators of the law (Dereliction of duty in the prosecution of offenses) **ELEMENTS: a. The offender is a public officer or officer of the law who has the duty to cause the prosecution of, or to prosecute offenses b. There is dereliction of the duties of his office, i.e.: Having knowledge of the commission of a crime, he does not cause its prosecution c. He acts with malice and deliberate intent to favour the violator of the law 2. Maliciously tolerating the commission of offenses Q: Suppose a smuggler, knowing that an illegal shipment will be unloaded, talked to a police officer and told him not to assign any men in the area where the shipment was to be unloaded and along the route to be used for its transportation. The police officer agreed. Is he liable? Yes Q: May he also be held liable for violating RA 3019 (Anti-Graft and Corrupt Practices Act)? Yes Q: Suppose a public prosecutor caused the dismissal of a complaint for estafa because it was filed against his mother-in-law. Is he liable? Yes

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Art.208 PROSECUTION OF OFFENSES; NEGLIGENCE AND TOLERANCE


Q: May the prosecutor be held liable for a violation of PD 1829? Yes Q: Simultaneously? No, he may either be held liable and prosecuted for art.208 OR PD 1829 – whichever metes out the higher penalty *NB: this is an interesting twist to the doctrinal line of ‘penal laws should be construed in favour of the accused’. Here, if an act is punishable both under the RPC and under PD 1829, the accused will be prosecuted for the crime bearing the heavier penalty. I suppose it would help to think of it in the light of another doctrinal phrase – that public office is a public trust. Among the many tables of crimes throughout Book Two of the RPC, you’ll notice that if the offender happens to be a public official, the penalty is higher – under art.14 (aggravating circumstances) as well, taking advantage of public position is an aggravating circumstance. Q: Does the offender in Dereliction of Duty have to act with malice? Yes Q: Are you saying that dereliction of duty caused by poor judgment or an honest mistake is not punishable? Yes, it is not punishable

Art.209 BETRAYAL OF TRUST BY AN ATTORNEY OR SOLICITOR – REVELATION OF SECRETS Q: What are the punishable acts? 1. Causing damage to a client either by – a. Any malicious breach of professional duty b. By inexcusable negligence or ignorance *NB: When the attorney acts with malicious abuse of his employment or inexcusable negligence/ignorance, there must be damage caused to the client for liability to attach 2. Revealing any of the secrets of the client learned in the offender’s professional capacity *NB: Damage here is not necessary

*NB: If the client consents to the attorney’s undertaking of the opposite party’s defence, there is no crime committed Q: Give an example for each punishable act Q: In the 2nd punishable act, would the lawyer be liable if the client consented? No Q: May a paralegal be held liable for violating this provision? No, non-members of the Philippine are not liable for art.209 Q: May anybody else besides the client waive the right to privileged communication? No, only the client may do so

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3. Undertaking the defence of the opposing party in the same case without the first client’s consent, and after having undertaken the 1st client’s defence or after having received from him confidential information


Q: Why is that? Because the whole concept of privileged communication was intended for the benefit and protection of the client Q: Suppose the court asked your client whether or not he admitted the commission of a crime. May you raise an objection? Yes Q: May you waive your right to raise that objection? No Q: What kind of matters are sought to be protected by this article? Those learned in confidence by a lawyer from his client Q: Suppose you are a lawyer and you gave advice to C because C approached you and said he wanted to kill B. Despite your advice, B later turned out dead. You were asked to testify against C. May you invoke privileged communication and refuse to do so? No, the advice I offered C was not given with a view to professional employment. No attorneyclient relationship exists between me and him.

NOTES: RULES OF EVIDENCE RULE 130 RULES OF ADMISSIBILITY A. OBJECT (REAL) EVIDENCE xxx B. DOCUMENTARY EVIDENCE xxx C. TESTIMONIAL EVIDENCE Sec. 24. DISQUALIFICATION BY REASON OF PRIVILEGED COMMUNICATION The following persons cannot testify as to matters learned in confidence in the following cases: a) The husband or the wife… xxx

SECTION TWO – BRIBERY

Art.210 DIRECT BRIBERY Q: How is this committed? 1. The offender is a public officer within the scope of art.203 *NB: person liable = a public officer ‘or any other persons performing public duties’

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b) An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course or with a view to, professional employment, nor can attorney’s secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity


2. He accepts an offer or promise or receives a gift or present by himself or through another *NB: The gift is either (a) voluntarily offered by a private person, or (b) solicited by the public officer. In case there is only an offer of a gift or a promise to give something, the offer or promise must be accepted by the public officer; else, only the offeror is liable for Attempted Corruption of Public Officer (art.212) 3. Such offer or promise is accepted; or gift or present received by the public officer – a. With a view to committing some crime b. In consideration of the execution of an act which does not constitute a crime, but the act must be unjust; or c. To refrain from doing something which it is his official duty to do *NB: in a nutshell, these are the 3 ways of committing direct bribery (think: punishable acts) 4. The act which the offender agrees to person or which he executes is connected with the performance of his official duties Q: What are the punishable acts? 1. Agreeing to perform, performing, in consideration of any offer, promise, gift or present an act constituting a crime, in connection with the performance of his official duties 2. 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 3. Agreeing to refrain, or by refraining from doing something which it is his official duty to do, in consideration of a gift or promise Q: Under the 1st punishable act (agreeing to perform a crime in exchange for any officer, promise or gift), what consummates the crime? Mere agreement to perform an act which constitutes a crime Q: Is it necessary that the act constituting a crime is actually committed? No Q: Does the officer have to actually receive the gifts? No

Q: Suppose there was an extensive cross-examination during a trial. The opposing counsel did his job well, and the cross-examination damaged the theory of the prosecution. The counsel for the prosecution asked the stenographer to change certain portions of the transcript in return for Php 50,000. The stenographer agreed and promised that the altered transcript would be ready in a week. Before he could even work on his promise, however, the lawyer was arrested by the NBI. Is the stenographer liable? Yes, his mere agreement already consummated the crime. Whether or not he was able to deliver the transcript to the lawyer is immaterial insofar as his liability is concerned Q: Suppose the stenographer actually changed the transcript and handed it to the lawyer but the latter did not have enough cash and said that he would be back to pay the balance. What crime/s may the stenographer be held liable for? 1. Direct Bribery (art.210) 2. Falsification of Public Document (art.171) 3. Violation of the Anti-Graft and Corrupt Practices Act (RA 3019) *separate crimes

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Q: Suppose the bribe-giver promised the officer a gift, but after he’d gotten what he needed, he no longer delivered the gift. Is he liable? Yes

CRIMINAL LAW II 107 K notes Q: Was direct bribery a necessary means for the stenographer to commit falsification? Yes Q: May it be complexed with falsification, then? Yes, it MAY (*NB: pay attention to the fact that the word ‘may’ is only used to convey possibility, not actuality) be complexed under art.48 Q: What do you mean by saying it ‘may’ be complexed? Direct Bribery may be complexed following the formula in art.48 HOWEVER, it contains the phrase ‘in addition to the penalty’… which means, in actuality, it CANNOT be complexed with any other crime, because the law itself makes the liability for it stand independently of other crimes Q: If that is the case, then what crimes may the officer be held liable for, with regards to direct bribery and your so-called ‘independent’ liabilities? The officer who commits direct bribery under this manner is liable for – 1. Direct Bribery 2. The crime agreed upon; and 3. A violation of RA 3019 *NB: Very notable, the three-tiered liability for public officers. Always, as the good professor drilled into us, a public officer has 3 liabilities under direct bribery Q: Suppose the lawyer no longer returned, is the stenographer still liable? Yes Q: Suppose you approached a Judge and told him that if he could render a favourable decision for you, you would give him a sexbomb dancer of his choice for 2 nights – absolutely free. The decision was rendered in your favour but you were not able to produce the dancer. Is the Judge liable? It depends: -If there was sufficient evidence to prove my innocence in the case which the Judge decided, he will not be liable -If the evidence was enough to prove my guilt, however, and the decision rendered by the Judge was in my favour, then the Judge is liable Q: Under the 2nd punishable act or manner of commission (accepting a gift in consideration of an act which does not constitute a crime), what consummates the crime? Actual acceptance of a bribe Q: What about a promise to accept the bribe? (*trolling moment: a promise to accept is not the same as acceptance, mind you) No, the acceptance must actually be made, not simply promised

Q: Suppose a Land Transportation Officer accepted the amount you offered him but all the same did not allow you to get ahead of others in your application for a license. Is he liable? Yes, he already accepted the bribe Q: Suppose the license was already handed to you but you had no money to pay him for his special effort. The officer told you he would return to collect the sum but failed to do so. Is he liable? No Q: Under the 3rd manner (agreeing to refrain from performing official duty), what consummates the crime? Mere agreement to shirk performance of official duties for a bribe

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Q: Illustrate this manner of commission

CRIMINAL LAW II 108 K notes Q: Suppose you apply for a driver’s license and instead of taking the written exam, you placed money in the examiner’s desk drawer. He said he would take the exam for you. Is he liable? Yes Q: Suppose you passed the written exam but had to wait for the results before undergoing the practical exams. You placed another Php 1,000 in the examiner’s drawer and he immediately told you to report to him the next day for the practical exams. Is he liable? Yes Q: Who may be liable for direct bribery? -Private persons who conspire with public officers to commit the crime -Accessories and Accomplices -Principals by indispensable cooperation *NB: Regarding principals by inducement, they cannot be held liable under this crime because there is a separate crime altogether which penalizes the act of inducing or attempting to induce a public officer to commit a crime: art.212 (corruption of public official) Q: Is direct bribery a crime involving moral turpitude? Yes Q: Explain Moral Turpitude in direct bribery can be inferred from the 3rd element: ‘Accepting a promise or gift and deliberately committing an unjust act/crime/refraining from performing an official duty in exchange for favours. There is malicious intent to renege on the duties the public officer owes to society and he also takes advantage of his office/position to do betray the public trust (Magno v. COMELEC et. al. GR No. 147904; October 4, 2002)

Art.211 INDIRECT BRIBERY Q: How is this committed? 1. The offender is a public officer 2. He accepts gifts 3. The gifts are offered to him by reason of his office Q: Distinguish this from direct bribery

There is an agreement between the public officer and the giver

There is usually no agreement between the parties concerned

The offender agrees to perform, or actually performs an act or refrains from doing something because of the gift or promise

It is not necessary that the public officer should do any particular act or even promise to do an act; it is sufficient that he accepts the gifts by reason of his office.

Q: What consummates the crime? Mere acceptance of the offered gifts Q: Give an example

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DIRECT BRIBERY INDIRECT BRIBERY ART.210 ART.211 *in BOTH cases, the public officer receives a gift

CRIMINAL LAW II 109 K notes Q: What is the purpose of a bribe offered under art.211? The bribe is offered in anticipation of a future favour from the public official concerned Q: Suppose you are the owner of a taxi cab company and you gave a car to the Land Transportation Franchising and Regulatory Board (LTFRB). Are you liable? Yes Q: When a public officer is prosecuted either for direct or indirect bribery, may he likewise be prosecuted for a violation of RA 3019? Yes – RA 3019 contains the phrase ‘in addition to… xxx’. The accused suffers penalties for separate crimes Q: Suppose the officer accepted a promise concerning the offer of a car to him by virtue of his public office. Is he liable? No – art.211 uses the words ‘gifts’, it refers to presents actual and material

Art.211-A QUALIFIED BRIBERY Q: How is this committed? 1. The offender is a public officer entrusted with law enforcement 2. He refrains from arresting or prosecuting an offender who has committed a crime punishable by reclusion perpetua and/or death 3. He refrains from arresting or prosecuting the offender in consideration of any promise, gift or present Q: What qualifies the crime? The position of the offender (he being entrusted with law enforcement) and the nature of the crime he fails to prosecute (crimes punishable by afflictive penalties)

Art.212 CORRUPTION OF PUBLIC OFFICIALS Q: How is this committed? 1. The 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 or indirect bribery Q: Give an example

Q: Is the person making the offer of gifts or promises still liable if he did so because the public official concerned demanded the offer? Yes Q: Suppose you made such an offer to a public official. He refused your offer. Are you still liable? Yes Q: What about the public officer, is he liable despite his denial? No, he is not liable if he refused my offer

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Q: Who is the offender within the contemplation of this article? The person offering promises of gifts to a public official under circumstances that would implicate the official for direct/indirect bribery


PRESIDENTIAL DECREE 749 RE: IMMUNITY FOR WITNESSES PRESIDENTIAL DECREE NO. 749 GRANTING IMMUNITY FROM PROSECUTION TO GIVERS OF BRIBES AND OTHER GIFTS AND TO THEIR ACCOMPLICES IN BRIBERY AND OTHER GRAFT CASES AGAINST PUBLIF OFFICERS Outline of salient provisions and important definitions Sec.1 *The immunity in this section is for any person who voluntarily gives information about any violation of Arts.210, 211, 212 of the RPC; RA 3019; Sec.345 of the Internal Revenue Code; Sec.3604 of the Tariff and Customs Code and other provisions penalizing abuse or dishonesty on the part of a public official. *The person applying for immunity must willingly testify against the public official or employee. *Exemption from prosecution or punishment for the offense with reference to which his information and testimony were given *Immunity may be enjoyed even in cases where the information and testimony are given against a person who isn’t a public official but who is a principal/accomplice or accessory *Immunity may be enjoyed notwithstanding that the person offered or gave the bribe or gift or he is an accomplice for such bribe or gift-giving **The following conditions must concur: 1. The information must refer to consummated violations of any of the above-mentioned provisions; 2. The information and testimony are necessary for the conviction of the accused public official; 3. Such information and testimony are not yet in the possession of the State; 4. Such information and testimony can be corroborated on its material points; and 5. The informant or witness has not been previously convicted of a crime involving moral turpitude Sec.2 *No immunity if the information/testimony turns out false or malicious or made only for the purpose of harassing, molesting or in any way prejudicing the public official concerned.

Q: What are the crimes covered by PD 749? -Direct Bribery (art.210) -Indirect Bribery (art.211) -Corruption of Public Official (art.212) -Violations of the Anti-Graft and Corrupt Practices Act (RA 3019) -Violation of Sec.345 of the Internal Revenue Code -Violation of Sec.3604 of the Tariff and Customs Code -Other provisions penalizing abuse or dishonesty on the part of a public official Q: Suppose a witness testified against a public official, availed of immunity and after doing so, refused to take the stand. What is the legal effect of his refusal? The immunity will no longer cover him Q: May he now be included in the information and prosecuted? Yes Q: Suppose he testified but the testimony was incredible and tended to favour the official. Is he still immune from prosecution? No, the testimony must be necessary for the conviction of the official

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Q: What are the requirements for applying for immunity?

CRIMINAL LAW II 111 K notes Q: Suppose he testified but his testimony was already part of the evidence for the prosecution before he did. Is he still immune? No, his testimony must not be in the possession of the State prior to its offering

REPUBLIC ACT 3019 ANTI-GRAFT AND CORRUPT PRACTICES ACT *Brace yourself; this is a long and taxing special law – absolutely tedious to note down, the kind of slityour-wrist kind of memory work that the Legal Socratic method of learning is famous for (Animo San Beda, ahaha). Check out the codal for the full extent of public officialdom’s madness. REPUBLIC ACT 3019 (As Amended) ANTI-GRAFT AND CORRUPT PRACTICES ACT *Summary of Salient Provisions and Important Definitions Sec.2 

Public Officer:includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exemption service receiving compensation, even nominal, from the government



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 of affinity even on occasion of a family celebration or national festivity like Christmas, if the value of the gift is, under circumstances, manifestly excessive

Sec.3 (Corrupt Practices of Public Officers) a) Persuading, inducing, or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced or influenced to commit such violation or offense; 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;

d) Accepting or having any member of his (the public officer’s) family accept employment in a private enterprise which has pending official business with him during the pendency thereof and within one year after his termination; e) Causing any undue injury to any party, including the government, or giving any 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; f) 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

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c) Directly or indirectly requesting or receiving any gift or 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/obtain any government permit or license in consideration for the help given or to be given, without prejudice to Sec.13 of this Act;

CRIMINAL LAW II 112 K notes indirectly from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favouring his own interest or giving undue advantage in favour of or discriminating against any other interested party; g) Entering, on behalf of the government into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby; h) 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; i)

Directly or indirectly becoming interested, for personal gain, or having 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 Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly unlawful, inequitable, or irregular transactions or acts by the board, panel or group to which they belong;

j)

Knowingly approving or granting any license, permit, privilege or benefit in favour 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 of entitled;

k) Divulging valuable information if a confidential character, acquired by his office or by him on account of his official position to authorize persons, or releasing such information in advance of its authorized release date Sec.4 (Prohibition on Private Individuals) *Taking advantage of family or close personal relation with a public official who has to intervene in some business, transaction or application or request or contract of the government with any other person *Knowingly inducing or causing any public official to commit any of the acts in Sec.3 Sec.5 (Prohibition on Certain Relatives)

*Prohibition from intervening in any business, transaction, etc. with the government *Exceptions: 1. Pre-existing business with the government before the official’s assumption of office; 2. Any application, the approval of which is not discretionary on the part of the public officer but rather, depends on compliance with requisites required by the law; 3. Any act lawfully performed in an official capacity or in the exercise of a profession Sec.6 (Prohibition on Members of Congress) *Applies during incumbency *Prohibition against acquiring or receiving any personal pecuniary interest in any business enterprise which will be directly or indirectly favoured by any law or resolution authored by him previously approved or adopted during the same term Sec.7 (Statement of Assets, Liabilities and Net Worth) *To be submitted within 30 days after assuming office and thereafter on or before April 15 following the

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*Applies to: spouse/any relative within the 3rd civil degree, whether by consanguinity or affinity of the President, Vice President, Senate President, Speaker of the House of Representatives

CRIMINAL LAW II 113 K notes close of every calendar year, as well as upon expiration of term of resignation or separation from office *Contents: Assets, Liabilities, Net Worth, as well as sources of income taxes paid for the next preceding calendar year *The following may be considered as far as implicating a public officer goes:  Property in the name of spouse or dependents when acquisition through legitimate means cannot be shown  Bank deposits or manifestly excessive expenditures  Activity in any club or association  Frequent travels abroad of a non-official character Sec. 9 (Penalties) xxx *Violations of this Act, if proven in an administrative proceeding, shall be sufficient cause for removal or dismissal, even if no criminal prosecution is instituted against the offender Sec.10 (Competent Court) *Court with original jurisdiction over offenses under this Act: The Sandiganbayan (otherwise known as the Graft Court, a special collegiate court with 15 Justices in 5 divisions, each one composed of 3 members) Sec.11 (Prescription of Offenses) *All punishable acts herein enumerate prescribe after 15 years Sec.12 (Termination of Office) *It is NOT allowed for a public official to resign or retire pending investigation or prosecution for offenses punishable by this Act Sec.13 (Suspension, Loss of Benefits) *Rather self-explanatory, this. Oh, all right. For the heck of it: Any public official against whom charges are filed may be preventively suspended. Note that the suspension here is preventive in nature, it is NOT the penalty. Although the preventive suspension is mandatory, it ISN’T automatic. It has to be raised via motion by the prosecution and is ordered after a hearing on the validity of the information has been had *If the public officer is ACQUITTED (not ‘dismissed’), the public officer shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime, administrative proceedings have been filed against him.

*Unsolicited gifts or presents of small or insignificant value offered or given as a mere ordinary token of gratitude or of friendship according to local customs or usage are not punishable *The practice of any profession, lawful trade or occupation during incumbency, when allowed by law

NOTES: *Okay. You okay? Did the special law freak you out? :D Read on! Fight! :D *RA 3019 is a catch-all piece of legislation intended to cover all loopholes. Notice that some, if not all, the punishable acts are faintly reminiscent of some acts punished under the Revised Penal Code. The reason

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Sec.14 (Exception)…the pink care bear provision -kimi

CRIMINAL LAW II 114 K notes for its enactment is obvious: to cut off any possible escaping of liability. Certain actions which the RPC merely hints at, or vaguely alludes to, are made full-blown, black and white, and clear offenses under RA 3019. This is also why actions punishable under the law stand independent of their cousins in the RPC.

CHAPTER THREE FRAUDS AND ILLEGAL EXACTIONS AND TRANSACTIONS Art.213 FRAUDS AGAINST THE PUBLIC TREASURY AND SIMILAR OFFENSES Q: What are the punishable acts? 1. 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 2. Demanding, directly or indirectly, the payment of sums different from or larger than those authorized by law, in the collection of taxes, licenses, fees and other imposts 3. 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 4. 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 *NB: Number 1 above refers to the offense of ‘Fraud against public treasury’, and numbers 2 through 4 are acts of ‘Illegal Exaction’

Q: How is Illegal Exaction committed? 1. The offender is a public officer entrusted with the collection of taxes, licenses, fees and other imposts 2. He is guilty of – a. Demanding, directly/indirectly the payment of sums different from OR larger than those authorized by law; or b. Failing voluntarily to issue a receipt, as provided by law, for any sum of money collected by him officially; or c. Collecting or receiving, directly/indirectly, by way of payment or otherwise, things or objects or a nature different from that provided by law Q: Suppose the Department of Health appropriated Php 100 Million for medicines set to be distributed to the poor. Instead of the medicines specified in the Order List, the manufacturer, acting in connivance with DOH officials, distributed medicines of inferior quality. Are the DOH officials liable? Yes

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Q: What are the elements of Fraud against Public Treasury? 1. The offender is a public officer 2. He should have taken advantage of his office (i.e.: he intervened in the transaction in his official capacity) 3. He entered into an agreement with any interested party or speculator or made use of any other scheme with regard to – a. Furnishing supplies; or b. Making contracts; or c. Adjustment or settlement of accounts relating to public property or funds 4. The accused had the intent to defraud the government

CRIMINAL LAW II 115 K notes Q: Suppose there is a contract between the Department of Public Works and Highways and a private contractor. DPWH purchases 100 truckloads of gravel, 200 truckloads of sand and 500 bags cement. DPWH paid the contractor for that much, but the contractor, in connivance with DPWH officials delivered only 10 truckloads of gravel, 10 truckloads of sand and 50 bags of cement. Are the officials liable? Yes Q: What crimes are they liable for? 1. Frauds against the public treasury (art.213) 2. Violation of RA 3019 *separate crimes Q: An official asked a Chinese businessman to pay for Php 700,000 for delinquency taxes when in fact the businessman is only liable for Php 500,000. Is the official liable? Yes Q: What crime? Illegal Exaction – for collecting taxes larger than those authorized by the law Q: What if the official only asked for Php 200,000? He is still liable for collecting a sum different than that authorized by the law Q: Suppose you were the businessman in the previous example, and you were not in the position to pay the Php 700,000 demanded by the official. He agreed to accept only Php 500,000 – which was really all you were liable for. Is the official still liable? Yes, the mere demand of Php 700,000 – even if it didn’t succeed – consummates the crime Q: Suppose you had a shady agreement with an official regarding the payment of taxes but it did not materialize. Is he liable? No, the sum must either be demanded or received. He did not demand it, nor did he receive it.

Art.214 OTHER FRAUDS Q: How is this committed? 1. The offender is a public officer 2. He takes advantage of his official position 3. He commits any of the frauds or deceits enumerated in art.315 - art.318 (estafa, other forms of swindling, swindling a minor, other deceits)

Q: How is this committed? 1. The offender is an appointive public officer 2. He becomes interested, directly or indirectly, in any transaction of exchange or speculation 3. The transaction takes place within the territory subject to his jurisdiction 4. He becomes interested in the transaction during his incumbency Q: Give an example Q: Suppose a Regional Trial Court judge purchases millions of stocks from a company in Ortigas. Is he liable? Yes, Ortigas is Part of the National Capital Region and the judge’s jurisdiction spans the NCR

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Art.215 PROHIBITED TRANSACTIONS

CRIMINAL LAW II 116 K notes Q: Suppose an RTC judge in Laguna purchased stocks in Makati. Is he liable? No, Makati is not within his jurisdiction Q: Suppose a Senator purchased millions worth of Stocks in Makati. Is he liable under art.215? No, a Senator is not an appointive official

Art.216 POSSESSION OF PROHIBITED INTEREST BY A PUBLIC OFFICIAL Q: Who are liable? 1. Public officers who directly or indirectly became interested in any contract or business in which it was their 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, distribution or adjudication of which they have acted 3. Guardians and executors with respect to the property belonging to their wards or the estate Q: Suppose a guardian had to sell some of his ward’s property due to the ward’s hospitalization. The court allowed him to do so. Is he liable? No, the court allowed it Q: Suppose he happened to sell the property to a company where he happens to be one of the major stockholders. Is he liable? Yes Q: What sort of interest is prohibited by this article? Pecuniary interest Q: Is actual fraud necessary for the liability to attach? No, what is punishable is the possibility of placing personal interest over the government’s

CHAPTER FOUR MALVERSATION OF PUBLIC FUNDS OR PROPERTY

Q: Who are liable? Public officers who are accountable for public funds or property Q: Who is an accountable public officer? One vested by law with custody and charge or control of public funds by reason of the duties of his office Q: What are the ways of committing malversation? 1. By appropriating public funds or property 2. By taking or misappropriating the same 3. By consenting, or through abandonment or negligence, permitting any other person to take such funds or property 4. By being otherwise guilty of the misappropriation or malversation of such funds or property

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Art.217 MALVERSATION OF PUBLIC FUNDS OR PROPERTY – PRESUMPTION OF MALVERSATION

CRIMINAL LAW II 117 K notes Q: What are the common elements to all acts of malversation? 1. The offender is a public officer 2. He has custody or control of funds or property by reason of the duties of his office 3. Those funds or property are public funds or public property for which he is accountable 4. He appropriated, took, misappropriated or consented; or through abandonment or negligence, permitted another person to take them Q: The Director of the Manila Zoo has a caretaker who works for him. The caretaker sold the animals during the Director’s absence. Is the latter liable? No, he only had a qualified charge over the animals and was not an accountable public officer Q: Who would be liable then? The Director of the Zoo Q: What would be the liability of the person who has a qualified charge over the missing property? Theft or Qualified Theft, if it was done with abuse of confidence *NB: If the officer had no authority to receive or to party with the funds or property, or had only a qualified charge over them, the crime is theft, not malversation Q: Suppose a Mercedes Benz was ordered confiscated for having been used in the commission of a certain crime. The custodian sold the car. Is he liable for malversation? Yes, the car became public property the moment it was seized by public authority and the custodian was an accountable officer as far as it was concerned Q: Suppose the car was used to transport shabu prior to its confiscation. A Philippine Drug Enforcement Agency (PDEA) officer sold it. What crime is the agent liable for? Violation of the Comprehensive Dangerous Drugs Act (CCDA) Q: Suppose a kilo of heroine was confiscated and PDEA officers sold it. What crime was committed? Violation of the CDDA Q: a SWAT member was given a modern assault rifle to be used in relation to his job. He committed irregularities in office and was dismissed from the service. He was ordered to surrender the rifle to his superiors but he refused and sold it instead. What crime did he commit? Malversation of public funds or property Q: But he was already dismissed from service Even so, he is still an accountable officer within the contemplation of the law

Q: The Commission of Audit (COA) conducted a surprise audit in a certain municipality. The COA officers found that there was a shortage of Php 100,000 from funds that were in the custody of the municipal treasurer. The treasurer was informed of the shortage and he immediately borrowed money from his friend to fill in the shortage. Is he liable? No because the presumption of misappropriation does not apply Q: Suppose there was a demand from competent authority for the treasurer to account for the missing sum of money within 10 days and the treasurer failed to comply. Is he liable? Yes, the presumption then attaches Q: What is the presumption?

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Q: Suppose a property custodian of the DPWH left certain construction equipment by the side of the road that was being constructed. The residents noticed the equipment and sold it. What crime is the custodian liable for? Malversation through negligence or abandonment

CRIMINAL LAW II 118 K notes Failure of an accountable public officer to have duly forthcoming any public funds or property with which he is chargeable upon demand by any duly authorized officer shall be prima facie evidence that he has put such missing funds or property to personal use Q: Suppose a criminal case was filed against the treasurer and upon knowing of the filing, he returned the missing amount. Is he still liable? Yes Q: What is the legal effect of his act of returning the missing funds? The return mitigates his criminal liability Q: It does not extinguish it? No it does not. Return of malversed property is not one of the modes for extinguishing liability under art.89 of the RPC Q: Suppose it was the municipal cashier who took the money, is he liable for malversation? No, the cashier is not an accountable public officer Q: What crime did the cashier commit? Theft or Qualified Theft Q: As far as the presumption of malversation goes, what is the legal effect of a demand from a duly authorized officer? The demand allows the presumption of malversation to attach Q: Is the demand a necessary element of proving malversation? No Q: What is the legal effect again of payment of the missing funds? Mitigation Q: What kind of mitigating circumstance is it? An ordinary mitigating circumstance as per art.13, par.10 in relation to art.13 par.7 – the return is analogous to a voluntary surrender or confession of guilt Q: What is the effect of the return of the malversed funds to the civil liability of the offender? The return has no effect whatsoever on his civil liability

Q: May private property be the object of malversation? Yes, if the private property in question was – a. Seized b. Attached; or c. Deposited by public authority Q: Is actual damage to the government necessary to prove liability? No

Art.218 FAILURE OF ACCOUNTABLE OFFICER TO RENDER ACCOUNTS Q: How is this committed? 1. The offender is a public officer, whether in the service or separated therefrom 2. He must be an accountable officer for public funds or property

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Q: May private persons be held liable for malversation? How? Yes, if they conspired with the accountable public officer in committing malversation

CRIMINAL LAW II 119 K notes 3. He is required by law or regulation to render accounts to the Commission on Audit or to a provincial auditor 4. He fails to do so for a period of 2 months after such accounts should be rendered Q: Is demand for accounting necessary? No, it is sufficient that there is a law or regulation requiring the officer to render account Q: Is misappropriation necessary for liability to attach? No Q: What is the required duration within which the officer should render accounts? Within 2 months after such accounts should be rendered

Art.219 FAILURE OF A RESPONSIBLE PUBLIC OFFICER TO RENDER ACCOUNTS BEFORE LEAVING THE COUNTRY Q: How is this committed? 1. The offender is a public officer 2. He must be an accountable officer for public funds or property 3. He must have unlawfully left, or be on the point of leaving the PH without securing from the Commission on Audit a certificate showing that his accounts have been finally settled Q: Give an example Q: Suppose a municipal treasurer goes to Shinjuku, Tokyo to attend an official convention without having finally settled his accounts. Is he liable? No, at least not yet, he was on official business Q: Suppose he goes to Disneyland with his family with the intention of returning, but he left without securing a certificate to prove he had finally settled his accounts. Is he liable? Yes

Art.220 ILLEGAL USE OF PUBLIC FUNDS OR PROPERTY

Q: How is this committed? 1. The offender is a public officer 2. There is a public fund or property under his administration 3. Such fund/property has been appropriated by law or ordinance for a particular use 4. He applies the same to a public use other than that for which it has been appropriated Q: Distinguish this from malversation under art.217


MALVERSATION ART.217 Offender appropriates, misappropriates, takes, consents, or through abandonment or negligence, permits another person to take the funds or property under his custody; or is otherwise guilty of

TECHNICAL MALVERSATION ART.220 Offender re-appropriates the fund or property under his custody for a purpose other than that which the fund/property was originally intended for *NB: only one manner of

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*NB: This is otherwise known as ‘Technical Malversation’

CRIMINAL LAW II 120 K notes malversation

commission

*NB: 4 modes of commission RE: Character of Funds or Property

Public or if private, has been seized, attached or deposited by public authority

Public, with the additional qualification that such fund or property was appropriated by law or ordinance for a particular use

RE: Personal Gain or Benefit

Offender in certain cases profits from the proceeds of the crime

Offender does not derive any personal gain or profit

RE: Application of Malversed Funds

Malversed funds are applied to personal use and to the benefit of the offender or a 3rd person

Malversed funds/property are applied to another public use different from that which was intended

RE: Presumption of law as to liability

Failure to have funds forthwith and coming leads to the presumption that the offender has put the funds to personal use

No presumption as to liability

Q: Again. What constitutes the crime of technical malversation? The application of public funds or property by an accountable public officer to a different (public) use other than that for which the fund/property has been appropriated by law or ordinance

Art.221 FAILURE TO MAKE DELIVERY OF PUBLIC FUNDS OR PROPERTY

Q: Give examples of each punishable act

Art.222 OFFICERS UNCLUDED IN THE PRECEDING PROVISIONS Q: Who are the persons liable under Arts.217 – 221? 1. Private individuals who, in any capacity whatsoever, have charge of any national, provincial, or municipal funds, revenues or property 2. Administrators or depositories of funds or property attached, seized, or deposited by public authority even if such property belongs to private individuals

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Q: What are the punishable acts? 1. Failing to make payment, done by a public officer who is under obligation to make payment from government funds in his possession **ELEMENTS: a. The public officer has government funds in his possession b. He is under obligation to make payment from such funds c. He maliciously fails to make the payment 2. Refusing to make delivery, done by a public officer who has been ordered by competent authority to deliver any property in his custody or under his administration


PRESIDENTIAL DECREE 1829 RE: OBSTRUCTION OF JUSTICE PRESIDENTIAL DECREE NO. 1829 DECREE PENALIZING OBSTRUCTION OR APPREHENSION OF PROSECUTION OF CRIMINAL OFFENDERS * Outline of Punishable Acts ACTS PUNISHED: 1.

Preventing witnesses from testifying in any criminal proceeding or from reporting the commission of any offense or the identity of any offender/s by means of bribery, misrepresentation, deceit, intimidation, force or threats

2. Altering, destroying, suppressing or concealing any paper, record, document or object, with intent to impair its verity, authenticity, legibility, availability, or admissibility as evidence in any investigation of, or official proceedings in criminal cases, or to be used in the investigation of, or official proceedings in criminal cases 3. Harbouring or concealing, or facilitating the escape of, any person he knows, or has reasonable ground to believe or suspect has committed any offense under existing penal laws in order to prevent his arrest, prosecution and conviction 4. Publicly using a fictitious name for the purpose of concealing a crime, evading prosecution or the execution of judgment or concealing one’s true name and other personal circumstances for the same purpose/s 5. Delaying the prosecution of criminal cases by obstructing the service or process of court orders or disturbing proceedings in the fiscals’ offices, in the Tanodbayan, or in the courts. 6. Making, presenting, or using any record, document, paper, or object with knowledge of its falsity and with intent to affect the course or outcome of the investigation of, or official proceedings in criminal cases 7. Soliciting, accepting or agreeing to accept any benefit in consideration of abstaining from, or discontinuing, the impending prosecution of a criminal offender

9. Giving of 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 **If any of the acts mentioned herein is penalized by any other law with a higher penalty, the higher penalty shall be imposed

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8. Threatening, directly or indirectly another with the infliction of any wrong upon his person, honour or property or that of any immediate member/s of his family in order to prevent such person 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 official proceedings in criminal cases


REPUBLIC ACT 7080 AS AMENDED THE ANTI-PLUNDER ACT REPUBLIC ACT 7080 AS AMENDED AN ACT DEFINING AND PENALIZING THE CRIME OF PLUNDER *Summary and Outline of Salient Provisions and Punishable Acts Sec.1 xxx (d) Ill-gotten wealth:Any asset, property or business enterprise or material possession of any person within the purview of Sec.2 hereof, 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 Government Owned 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 of participation including the 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 benefit particular persons or special interests; or 6. By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich oneself at the expense and to the damage of the Filipino people and the Republic of the Philippines Sec.2 – Definition of the crime of plunder, penalties

*Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense *The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favour of the State Sec.3 – Competent Court *The Sandiganbayan Sec.4 – Rule of Evidence

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*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 Php 50,000,000 shall be guilty of the crime of plunder

CRIMINAL LAW II 123 K notes *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 over-all unlawful scheme or conspiracy Sec.6 – Prescription of crimes *prescription: after 20 years; however, the right of the State to recover properties unlawfully acquired by public officers from them or their nominees or transferees shall not be barred by prescription, laches, or estoppel.

RA 9160, AS AMENDED THE ANTI-MONEY LAUNDERING ACT OF 2001 REPUBLIC ACT 9160 AS AMENDED BY REPUBLIC ACT 9194 AN ACT DEFINING THE CRIME OF MONEY LAUNDERING, PROVIDING PENALTIES THEREFOR AND FOR OTHER PURPOSES *Summary of Important Definitions and Punishable Acts Sec.3 – Definitions

b. Covered Transactions: Transactions in case or other equivalent monetary instruments involving a total amount in excess of Php 500,000 within one banking day b-1. Suspicious Transactions: 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 this Act 5. Any circumstances relating to the transaction which is observed to deviate from the profile

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a. Covered Institutions: 1. Banks, non-banks, quasi-banks, trust entities and all other institutions and their subsidiaries and affiliates supervised or regulated by the Bangko Sentral ng Pilipinas (BSP) 2. Insurance companies and all other institutions supervised or regulated by the Insurance Commission 3. A. Securities, dealers, brokers, salesmen, investment houses and other similar entities managing securities or rendering services as investment agent, adviser, or consultant B. Mutual funds, close-end investment companies, common trust funds, pre-need companies and other similar entities; C. Foreign exchange corporations, money changers, money payment, remittance, and transfer companies and other similar entities D. Other entities administering or otherwise dealing in currency, commodities or financial derivatives based thereon, valuable objects, cash substitutes, and other similar monetary instruments or property supervised by the Securities and Exchange Commission (SEC)

CRIMINAL LAW II 124 K notes 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, or is being, or has been committed 7. Any transaction that is similar or analogous to any of the foregoing 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 *Persons Liable: 1. Any person knowing that any monetary instrument, property, represents, involves, or relates to the proceeds of any unlawful activity, transacts or attempts to transact said monetary instrument or property 2. 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 3. 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) Sec.5 – Jurisdiction of Money Laundering Cases *Regional Trial Courts *Sandiganbayan, if the offender is a public officer Sec.6 – Prosecution of Money Laundering a. Any person may be charged with and convicted of both the offense of money laundering and the unlawful activity as herein defined b. Any proceeding relating to the unlawful activity shall be given precedence over the prosecution of any offense or violation under this Act, without prejudice to the freezing of assets and other remedies provided Sec.10 – Freezing of Monetary Instrument or Property *The Court of Appeals, upon application ex parte by the AMLC and after determination that probable cause exists, may issue a freeze order which shall be effective immediately. The order shall be for 20 days unless extended by the Court Sec.11 – Authority to Inquire into Bank Deposits

Sec.16 – Prohibition against political harassment *This Act shall not be used to for political persecution and to hamper competition in trade or commerce *No case for money laundering may be filed against, and no assets shall be frozen, attached or forfeited to the prejudice of a candidate for an electoral office during election period

CHAPTER FIVE INFIDELITY OF PUBLIC OFFICERS

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*The AMLC may inquire into or examine any particular deposit or investment with any financial institution upon order of any competent court in cases of violation of this Act, when it has been established that the deposits or investments are related to an unlawful activity


SECTION ONE – INFIDELITY IN THE CUSTODY OF PRISONERS

Art.223 CONNIVING WITH, OR CONSENTING TO EVASION Q: How is this committed? 1. The offender is a public officer 2. He had in his custody or charge a prisoner, either a detention prisoner or one by final judgment 3. The prisoner escaped from the officer’s custody 4. The officer was in connivance with the prisoner in the latter’s escape Q: Give an example Q: Suppose there is a prisoner who requested a pass to go home since his house is near the jail anyway. The officer consented and granted him the pass. Is the officer liable? Yes Q: Suppose the prisoner requested that he serve his sentence by acting as the servant of the jail guard. Is the guard liable? Yes Q: Police officers allowed the detained prisoner to go home and take a bath. Are they liable? Yes Q: Does the offender have to agree to allow the prisoner to leave? Yes, agreement is an indispensable element of the crime because the officer has to be ‘in connivance’ with the prisoner Q: Who is a detention prisoner? One who is in legal custody, arrested for, and charged with some crime or public offense Q: How is he different from the other type of prisoner mentioned in the article? A detention prisoner has merely been arrested and charged with a crime; whereas a prisoner by final judgment has been found guilty as charged by a competent court and conveyed to prison by order of the same court in order to serve out his sentence

*NB: recall, art.125 specifies particular time periods for the delivery of a person to the proper judicial authorities, i.e.: 12 hrs, for crimes/offenses punishable by light penalties or their equivalent 18 hrs, for crimes/offenses punishable by correctional penalties/their equivalent 36hrs, for crimes/offenses punishable by capital punishment or afflictive penalties, or their equivalent Failure to deliver the prisoner within these periods means that the arresting officer must release the prisoner (see: Art.125 for further reference)

Art.224 EVASION THROUGH NEGLIGENCE Q: How is this committed?

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Q: What is the legal effect of releasing a prisoner in relation to the expiration of the periods specified in Art.125 (Delay in the delivery of detained persons to the proper judicial authorities)? The officer who released the prisoner will not be criminally liable

CRIMINAL LAW II 126 K notes 1. The offender is a public officer 2. He is charged with the conveyance or custody of a prisoner, either a prisoner by detention or one by final judgment 3. The prisoner escapes through his negligence Q: Differentiate this from art.157 EVASION OF SERVICE OF SENTENCE ART.157 The offender here is the escapee or the prisoner who escaped

INFIDELITY THROUGH NEGLIGENCE ART.224 The offender here is the public officer who was given custody or charge of the prisoner that escaped

The escapee is a convict by final judgment

The escapee may either be a prisoner by final judgment or merely a detention prisoner

Q: Suppose a prisoner escaped through an officer’s negligence. The officer hunted him down and captured him. Is the officer still liable? Yes Q: What is the legal effect of his effort to recapture the escaped prisoner? It may mitigate his liability but it does not afford him complete exculpation Q: What is the liability of the escapee, if he happens to be a prisoner by final judgment? He is liable for a violation of art.157 (evasion of service of sentence) Q: And if the escapee is a detention prisoner, what is his liability? He incurs no criminal liability for escaping

Art.225 ESCAPE OF PRISONER UNDER THE CUSTODY OF A PERSON NOT A PUBLIC OFFICER

Q: What is the character of the offender in this article? The offender is a private person to whom the custody of a prisoner/person under arrest is confided

SECTION TWO – INFIDELITY IN THE CUSTODY OF DOCUMENTS

Art.226 REMOVAL, CONCEALMENT OR DESTRUCTION OF DOCUMENTS Q: How is this committed? 1. The offender is a public officer

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Q: How is this committed? 1. The offender is a private person 2. The conveyance or custody of a prisoner or person under arrest is confided to him 3. The prisoner or person under arrest escapes 4. The offender consents to the escape of the prisoner/person under arrest, or the escape takes place through his negligence

CRIMINAL LAW II 127 K notes 2. He abstracts, destroys or conceals documents or papers 3. The said documents or papers should have been entrusted to him by reason of his office 4. Damage, whether serious or not, was caused to a 3rd party or to the public interest Q: What are the punishable acts? 1. Removing; 2. Destroying; or 3. Concealing documents or papers officially entrusted to the offending public officer Q: Give an example Q: Would any manner of removal make the public officer liable? No, the removal has to be made for an illicit purpose, and damage must result from the act of removal Q: Suppose the building where an RTC was situated began leaking during a storm and the stenographer removed several documents from the filing cabinets in order to save them. Will the stenographer be liable? No, the removal was not done with an illicit purpose in mind Q: As far as removal goes, is illicit purpose necessary? Yes Q: What about concealment or destruction, is illicit purpose necessary as well? No, in concealment and destruction, the mere acts are punishable; an illicit purpose is not necessary *NB: think about it. Removing a document could still be done for a legal and lawful purpose, but what legal or lawful purpose does concealing or destroying the document serve? I suppose the inherent nature of the acts – hiding the documents (concealment) and destroying them speak of a perversity behind the act that is in itself reprehensible and doesn’t have to be coupled by actual ill-will -kimi Q: Suppose a clerk of court saw a newspaper lying on the desk. She burned it. Is she liable? No, the newspaper is not a document within the contemplation of the law Q: Suppose it was an unsigned document which she burned. Is she liable? No, the document was not complete nor duly accomplished *NB: the document here must be complete and one by which a right could be established or an obligation could be extinguished, i.e.: it must carry with it a binding legal effect, if it doesn’t, then the offender isn’t liable

Q: In removal, is it required that the offender actually achieves his illicit purpose? No, it is sufficient that he has removed the documents for an unlawful purpose; whether or not that purpose was actually achieved is immaterial Q: Suppose an officer delivered a document to someone who is not the proper recipient for it, and he did so with an illicit purpose in mind. Is he liable? Yes Q: Is damage a necessary element for all the punishable acts? Yes

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Q: When is removal consummated? Upon the secreting away of the document from its usual place


Art.227 OFFICER BREAKING SEAL Q: How is this committed? 1. The 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 seals or permits them to be broken Q: Must there be damage for liability to attach? No, damage is not a necessary element of the offense

Art.228 OPENING OF CLOSED DOCUMENTS Q: How is this committed? 1. The offender is a public officer 2. Closed papers, documents or objects are entrusted to his custody 3. He opens or permits to be opened the said papers, documents or objects 4. He does not have the proper authority to do so Q: Must there be damage? No

SECTION THREE – REVELATION OF SECRETS BY AN OFFICER

Q: What are the punishable acts? 1. Revealing any secrets known by the offending public officer by reason of his official capacity **ELEMENTS: a. The offender is a public officer b. He knows of a secret by reason of his official capacity c. He reveals such secret without authority or justifiable means d. Damage, great or small, is caused to the public interest 2. Wrongfully delivering papers or copies of papers of which he may have charge and which should not be published **ELEMENTS: a. The offender is a public officer b. He has charge of papers c. The papers should not be published d. He delivers the papers of copies thereof to a 3rd person e. The delivery is wrongful f. Damage is caused to public interest

NOTES: *If the papers contain secrets and shouldn’t be published, and they are removed and delivered to the wrong person, art.229 applies *If there aren’t any secrets, the crime is infidelity in the custody of documents or papers *Damage is a necessary element, but it must be to the public interest

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Art.229 REVELATION OF SECRETS


Art.230 PUBLIC OFFICERS REVEALING THE SECRETS OF PRIVATE INDIVIDUALS Q: How is this committed? 1. The offender is a public officer 2. He knows of the secrets of a private individual by means of his public office 3. He reveals such secrets without authority or justifiable reason Q: Does the revelation have to be public? No Q: Suppose the offender is an attorney; is he liable under this article? No, he would be liable under art.209 (betrayal of trust by an attorney) Q: Is damage to private individuals necessary? No, the damage required is to the people’s faith and trust in public service Q: Suppose an employee of the BIR disclosed your income to his co-employee. Is he liable? Yes, a person’s income is his own secret

CHAPTER SIX OTHER OFFENSES OR IRREGULARITIES BY PUBLIC OFFICERS SECTION ONE – DISOBEDIENCE, REFUSAL OR ASSISTANCE AND MALTREATMENT OF PRISONERS

Art.231 OPEN DISOBEDIENCE

Art.232 DISOBEDIENCE TO ORDER OF SUPERIOR OFFICER, WHEN SAID ORDER WAS SUSPENDED BY INFERIOR OFFICER Q: How is this committed? 1. The offender is a public officer 2. An order was issued by his superior for execution 3. He has suspended the execution of such order 4. His superior disapproves of the suspension 5. The offender disobeys his superior despite the disapproval of the suspension Q: Give an example

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Q: How is this committed? 1. The offender is a judicial or executive officer 2. There is a judgment, decision or order from superior authority 3. The judgment or decision or order was made within the scope of the superior authority’s jurisdiction and issued with the legal formalities 4. The offender openly refuses to execute the judgment/decision/order which he is duty-bound to obey, without any legal justification

CRIMINAL LAW II 130 K notes Q: What is the legal effect on the inferior officer’s liability if he disobeyed an unlawful order issued by his superior? None, he is not duty-bound to obey an unlawful order

Art.233 REFUSAL OF ASSISTANCE Q: How is this committed? 1. The offender is a public officer 2. A competent authority demands that he lend his cooperation towards the administration of justice or other public service 3. He maliciously fails to do so Q: Suppose there was no demand; may the officer from whom assistance was expected be held liable? No, demand is a necessary element. There can be no refusal if there was no demand to begin with

Art.234 REFUSAL TO DISCHARGE ELECTIVE OFFICE Q: How is this committed? 1. The offender is elected by popular election to a public office 2. He refuses to be sworn in or to discharge the duties of said office 3. There is no legal motive for his refusal to be sworn in or to discharge his official duties Q: Suppose you refused to discharge the duties of a barangay secretary, may you be held liable? No, art.234 does not cover appointive officials

Q: How is this committed? 1. The offender is a public officer or employee 2. He has under his charge a prisoner or detention prisoner 3. He maltreats the 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 – i. By the imposition of punishment not authorized by regulations; or ii. By inflicting authorized punishments in a cruel or humiliating manner; or b. By maltreating the prisoner to extort a confession or obtain some information from the prisoner Q: Who are the prisoners contemplated? Those by final judgment, and detention prisoners Q: Suppose a detention prisoner was being suspected of having been involved in kidnapping. One of the arresting officers inflicted wounds on the prisoner, which would have caused the detainee’s death, had it not been for timely medical intervention. What crime/s did the officer commit? 1. Maltreatment of prisoners 2. Frustrated homicide *separate crimes

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Art.235 MALTREATMENT OF PRISONERS

CRIMINAL LAW II 131 K notes Q: Is it a complex crime; does one absorb the other, or are they separate crimes? They are separate crimes Q: What is your legal basis for saying that? The article specifically makes any other injuries inflicted during the course of the maltreatment as separate offenses by employing the phrase ‘in addition to any other liability for the physical injuries or damage caused… xxx’ Q: Suppose a detention prisoner was under the custody of a jail guard, and the guard orders the detainee to wash his clothes and when the detainee refused, the guard punched him in the face. What crime/s did the guard commit? 1. Maltreatment of prisoners 2. Physical Injuries *separate crimes Q: Under the second manner of commission (extortion of confession), what is the legal effect of the extortion? The act of maltreating the prisoner to extort a confession or obtain information aggravates the offender’s liability and increases the penalty for the offense Q: Give examples of crimes that, by direct provision of law, cannot be complexed with any other crimes 1. Rebellion 2. Estafa (cannot be complexed with Falsification of private document) 3. Direct Bribery 4. Search Warrants maliciously obtained 5. Maltreatment of Prisoners (cannot be complexed with Physical Injuries)

REPUBLIC ACT 9745 ANTI-TORTURE ACT OF 2009 REPUBLIC ACT 9745 AN ACT PENALIZING TORTURE AND OTHER CRUEL, INHUMAN AND DEGRADING TREATMENT OF PUNISHMENT AND PRESCRIBING PENALTIES THEREFOR *Summary of Important Definitions and Salient Provisions

Torture: *An act by which severe pain or suffering whether physical or mental is intentionally inflicted on a person for such purposes as obtaining from him or her or a 3rd person information or a confession; punishing him or her for an act he or she or a 3rd person has committed or is suspected of having committed; or intimidating or coercing him or her or a 3rd person; or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with consent or acquiescence of a person in authority or agent of a person in authority. It does not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions Other cruel, inhuman and degrading treatment or punishment: *Deliberate and aggravated treatment or punishment not enumerated under Sec.4, inflicted by a person in authority or agent of a person in authority against a person under his or her custody, which attains a level of severity causing suffering, gross humiliation or debasement to the latter Sec.4 – Acts of Torture a. Physical Torture Causes severe pain, exhaustion, disability or dysfunction of one or more parts of the body, i.e.:

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Sec.3 – Definitions

CRIMINAL LAW II 132 K notes systematic beating, food deprivation, electric shock, burning, rape or sexual abuse, use of psychoactive drugs… xxx b. Mental or Psychological Torture Calculated to affect or confuse the mind and/or undermine a person’s dignity or morale, i.e.: blindfolding, threatening relatives, confinement in solitary cells, prolonged interrogation, denial of sleep or rest, infliction of shame… xxx Sec.5 – Other cruel, inhuman and degrading treatment or punishment *Deliberate and aggravated treatment not enumerated in Sec.4 which attains a level of severity sufficient to cause suffering, gross humiliation, or debasement Sec.6 – Freedom from torture and other cruel, inhuman and degrading treatment or punishment, an absolute right *Torture, etc. as criminal acts shall apply to all circumstances. A state or threat of war or public emergency, or order of battle shall not and can never be invoked as a justification for torture Sec.7 – Prohibited detention *Secret detention places, solitary confinement, incommunicado or other forms of detention where torture may be carried out Sec.8 – Applicability of Exclusionary Rule *Any confession, admission, or statement obtained as a result of torture shall be inadmissible in evidence in any proceeding, except if the same is used as evidence against the person/s accused of committing torture Sec.13 – Who are criminally liable 1. Principals: *Any person who actually participated or induced another in the commission of torture or who cooperated in the execution of the act of torture by previous or simultaneous acts shall be liable as principal

*The immediate commanding officer of the unit concerned of the Armed Forces of the Philippines or the immediate senior public official of the Philippine National Police and other law enforcement agencies shall be held liable as principals to the crime of torture for any act or omission or negligence committed by him that shall have led, assisted, abetted, or allowed whether directly or indirectly, the commission thereof by his subordinate. If he has knowledge of, or owing to the circumstances at the time, should have known that acts of torture shall be committed, is being committed or has been committed by his subordinates or by others within his area of responsibility and despite such knowledge, did not take preventive or corrective action either before, during or immediately after its commission, when he has the authority to prevent or investigate allegations of torture but failed to prevent or investigate them, whether deliberately or due to negligence, he shall also be liable as principal 2. Accessories: *Public officers or employees who have knowledge that torture is being committed, and without participating therein either as principal or accomplice, who take part in any of the following manners: a. By themselves profiting from or assisting the offender to profit from the effects of the act of torture b. By concealing the act of torture and/or destroying the effects or instruments in order to

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*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 liable as principals

CRIMINAL LAW II 133 K notes prevent its discovery c. By harbouring, concealing or assisting in the escape of the principal/s, provided that accessory acts are done with abuse of the official’s public functions Sec.15 – Torture as a separate and independent crime *Torture as a crime shall not absorb or shall not be absorbed by any other crime or felony committed as a consequence, or as a means in the conduct or commission thereof. In which case, torture shall be treated as a separate and independent criminal act whose penalties shall be imposable without prejudice to any other criminal liability provided for by domestic and international laws Sec.16 – Exclusion from the coverage of special amnesty law *Persons who have committed any act of torture shall not benefit from any special amnesty law or similar measures that will have the effect of exempting them from any criminal proceedings and sanctions Sec.22 – Applicability of the Revised Penal Code *The provisions of the RPC insofar as they are applicable shall be suppletory to this Act *If the commission of any crime punishable under Title 8 (Crimes Against Persons) and Title 9 (Crimes Against Personal Liberty and Security) of the RPC is attended by any of the acts constituting torture, the penalty to be imposed shall be in its maximum period

NOTES:

SECTION TWO – ANTICIPATION, PROLONGATION AND ABANDONMENT OF THE DUTIES AND POWERS OF PUBLIC OFFICE

Art.236 ANTICIPATION OF THE DUTIES OF A PUBLIC OFFICER Q: How is this committed? 1. The offender is entitled to hold a public office or employment either by election or appointment 2. The law requires that he should first be sworn in and/or give a bond 3. He assumes the performance of the duties and powers of such office 4. He has not taken his oath of office and/or given the bond required by law

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*In case you didn’t read through all of that, or speed-read it, here’s an even shorter summary of the legal effect of the commission of torture on a public officer’s liability: 1. Torture may not be complexed with any other crime or felony, it remains an independent liability 2. If any felony under Title 8 or 9 of the RPC (Crimes against Persons; Crimes against personal liberty and security) is committed alongside torture, the penalty for the felony remains distinct BUT will be imposed in its maximum because the law on torture (See: sec.22, RA 9745) provides for a special aggravating circumstance 3. The offender cannot invoke the state or threat of war, or an order of battle as justification for torture 4. The offender is excluded by direct provision of law from the scope of any special amnesty law or similar measure which would exempt him from criminal liability for torture …in short, if you happen to be the offender, your a** is toast.


Q: What kinds of public offices require bonds? Those involving trust and confidence Q: What is the purpose of the bond? To assure the government of indemnity in case of any irregularities Q: What form may the bond take? It may either be in cash or in the form of a security bond Q: What happens to the bond after the end of an official’s term? The bond is returned at the end of service

Art.237 PROLONGING PERFORMANCE OF DUTIES AND POWERS Q: How is this committed? 1. The offender is holding a public office 2. The period provided by law, regulations or special provisions for holding such office has already expired 3. He continues to exercise the duties and powers of such office Q: Suppose an officer is about to retire, but his term is extended. As a result thereof, he continues to discharge the duties of his office. Is he liable? No, his term was extended

Art.238 ABANDONMENT OF OFFICE OR POSITION Q: How is this committed? 1. The offender is a public officer 2. He formally resigns from his position 3. His resignation has not yet been accepted 4. He abandons his office to the detriment of the public service

Q: How is this different from Dereliction of Duty under art.208? -In Abandonment of Office, there is real and actual abandonment -In Dereliction of Duty, the public officer does not abandon his office but rather fails to prosecute a violation of law

SECTION THREE – USURPATION OF POWERS AND UNLAWFUL APPOINTMENTS *NB: Think: Separation of Powers, Checks and Balances, Co-Equal Branches of Government… Basically, this is the portion of criminal law that protects the independence of the three branches of government and punishes any unwarranted interference among those respective spheres -kimi

Art.239 USURPATION OF LEGISLATIVE POWERS

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Q: What qualifies the offence? When the abandonment has for its purpose to evade the discharge of the duties of preventing, prosecuting or punishing any of the crimes under Title 1, Chapter 1 or Title 3, Book 3 of the RPC

CRIMINAL LAW II 135 K notes Q: How is this committed? 1. The offender is an executive or judicial officer 2. He – a. Makes general rules or regulations beyond the scope of his authority b. He attempts to repeal a law; or c. Suspends the execution thereof Q: Give an example Q: What is the purpose contemplated by the law?

Art.240 USURPATION OF EXECUTIVE FUNCTIONS Q: How is this committed? 1. The offender is a Judge 2. He – a. Assumes a power pertaining to the executive authorities; or b. Obstructs the executive authorities in the exercise of their powers Q: Give an example Q: What is the purpose of this provision?

Art.241 USURPATION OF JUDICIAL FUNCTIONS Q: How is this committed? 1. The offender is an officer of the executive branch of the government 2. He – a. Assumes judicial powers b. Obstructs the execution of any order or decision rendered by any Judge within his jurisdiction Q: Give an example Q: What is the purpose of this provision?

Q: How is this committed? 1. The offender is a public officer 2. A proceeding is pending before him 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 still continues with the proceeding Q: Suppose the jurisdictional issue is resolved in the officer’s favour. Is he still liable? Yes Q: Why so?

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Art.242 DISOBEYING REQUEST FOR DISQUALIFICATION

CRIMINAL LAW II 136 K notes Because the offence has already been consummated when the issue was not yet decided; whether or not the decision would be in the officer’s favour is not material to his liability under art.242 Q: What is the purpose of the law?

Art.243 ORDERS OR REQUESTS BY EXECUTIVE OFFICERS TO ANY JUDICIAL AUTHORITY Q: How is this committed? 1. The offender is an executive officer 2. He addresses any order or suggestion to any judicial authority 3. The order or suggestion relates to any case or business coming within the exclusive jurisdiction of the courts of justice Q: What is the purpose of this article? To prevent executive officers from influencing judicial authorities in the disposition of legal matters pending before the courts Q: Suppose the Deputy Executive Secretary prepared a letter addressed to a Judge which states that the judge should be lenient in the appreciation of evidence, and that any legal assistance given to a strong political leader whose case was pending before the judge would be highly appreciated. Is the Deputy liable? Yes Q: Why? The Deputy Executive Secretary has no prerogative whatsoever to suggest leniency on the part of the judge and to imply that a favourable decision would be highly appreciated; his suggestion – however mild – could have the effect of influencing the disposition of the case Q: Suppose the case was decided favourably anyway, despite lack of leniency in the appreciation of evidence. Is the Deputy still liable? Yes, what is punishable is the act of trying to interfere in matters within the exclusive jurisdiction of the courts; the deputy was liable the moment he sent the letter – even if the appreciation of evidence did eventually exculpate the political leader

Q: How is this committed? 1. The offender is a public officer 2. He nominates or appoints a person to a public office 3. The nominee/appointee lacks the legal qualifications therefor 4. The offender knows that his nominee/appointee lacks those qualifications at the time he made the nomination/appointment Q: Suppose you were aware that a friend of yours had just finished serving sentence for the crime of rape. You knowingly recommended him for a public position which specifically requires that any person who might hold that office should not have been convicted of a crime involving moral turpitude. Are you liable? No, the mere act of recommending an unqualified person – even if done so knowingly – is not punishable Q: Must there be a law listing down the required qualifications?

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Art.244 UNLAWFUL APPOINTMENTS

CRIMINAL LAW II 137 K notes Yes, otherwise there would be no ‘legal qualifications’ to speak of

SECTION FOUR – ABUSES AGAINST CHASTITY *NB: this is not to be confused with ‘Crimes against Chastity’. I know, I know, you’re not stupid. I’m just saying. The law here specifically sets apart punishments for abuses against chastity committed by public officers in connection with their duties -kimi

Art.245 ABUSES AGAINST CHASTITY – PENALTIES Q: What are the modes of commission? 1. By 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 2. By soliciting or making immoral or indecent advances to a woman under the offender’s custody 3. By soliciting or making immoral or indecent advances towards the wife, daughter, sister or relative within the same degree by affinity of any person in the custody of the offendeing warden or officer Q: What are the elements? 1. The offender is a public officer 2. He solicits or makes immoral/indecent advances towards a woman 3. The woman is either – a. 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 b. Under the custody of the offender who is a warden or another public officer directly charged with the care and custody of prisoners or persons under arrest (detainees) c. The wife, daughter, sister or relative within the same degree by affinity of the person in the custody of the offender (*NB: ascendants of the prisoner are not included) *NB: recall, persons: -wife: 1 degree of affinity -daughter: 1 degree of consanguinity; descendant -sister: 2 degrees of consanguinity …And no, mothers and grandmothers are not contemplated by this provision – curious, that (or perhaps not so, considering the offence is one against chastity… go figure)– kimi

Q: Suppose a judge who happened to be married left a woman a note which said ‘I love you’. Is he liable? No (*trolling moment: don’t make the mistake of saying ‘yes’ or you’ll hear this: ‘You mean to say LOVE is the monopoly of those who are single?? –Atty.A :D )

REPUBLIC ACT 9372 RE: TERRORISM *Brace yourself… again. This is even longer than the Anti-Graft and Corrupt Practices Act -kimi REPUBLIC ACT 9372 THE HUMAN SECURITY ACT OF 2007 *Summary of Important Definitions and Salient Provisions

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Q: What consummates the crime? The mere proposal of an immoral/indecent act

CRIMINAL LAW II 138 K notes Sec.3 – Terrorism *Any person who commits an act punishable under any of the following provisions of the Revised Penal Code: A. Art.122 (piracy in general) B. Art.134 (rebellion/insurrection) C. Art.134-A (coup d’état), including acts committed by private persons D. Art.248 (murder) E. Art.267 (kidnapping and serious illegal detention) F. Art.324 (crimes involving destruction…) *or under: 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 (codifying the laws on illegal and unlawful possession, manufacture, dealing in, acquisition, or disposition of firearms ammunitions or explosives) *…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 terrorism *penalty: 40 years of imprisonment without parole, as provided for under Act 4103 (the indeterminate sentence law) **think: any of the aforementioned violations + a condition of widespread and extraordinary panic + trying to coerce government to agree to an unlawful demand = terrorism -kimi Sec.4 – Conspiracy to commit terrorism *There is conspiracy when 2 or more persons come to an agreement concerning the commission of the crime of terrorism and decide to commit the same Sec.5 – Accomplice *Any person who, not being a principal under art.17 of the RPC, or a conspirator under sec.4 hereof, cooperates in the execution of either the crime of terrorism or conspiracy to commit terrorism by previous or simultaneous acts

*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 arts.17 and 18, RPC, takes part subsequent to its commission in any of the following manners: 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 harbouring, concealing or assisting in the escape of the principal or conspirator of the crime Sec.7 – Surveillance of Suspects and Interception and Recording of Communications *Exception to RA 4200 (anti-wiretapping law): police or members of a law enforcement team may conduct surveillance or listen to, or intercept communications upon written order of the Court of Appeals; provided that surveillance of communication between lawyers and clients, doctors and

HIRYU KIMIKO OKUBO

Sec. 6 – Accessory

CRIMINAL LAW II 139 K notes patients, journalists and their sources, and confidential business correspondence shall not be authorized Sec.11 – Custody of Intercepted and Recorded Communications *custody lies with the authorizing division of the CA; the materials are considered classified and shall be sealed and deposited therein *it shall be unlawful for any person to copy those materials in whatever form Sec.13 – Disposition of Deposited Materials *classified sealed materials shall not be opened or revealed or divulged unless authorized via written order by the CA upon application of the Department of Justice and only upon a showing that the DOJ has been duly authorized in writing by the Anti-Terrorism Council *proper written notice shall be served to the person who has been the subject of the surveillance Sec.15 – Evidentiary Value of Deposited Materials *Anything obtained in violation of the pertinent provisions of this Act shall be absolutely inadmissible as evidence Sec.16 – Penalty for unauthorized or malicious interceptions and/or recordings *xxx … provided that notwithstanding sec.15, the party aggrieved shall be allowed access to the sealed material as evidence for the prosecution of any police or law enforcement personnel who maliciously procured said authorization Sec.17 – Proscription of terrorist organizations, associations or group of persons *the following shall be declared as a terrorist and outlawed organization by the Regional Trial Court upon application of the DOJ with due notice and opportunity to be heard given the organization: *any organization, association, or group of persons organized for the purpose of engaging in terrorism, or which, although not organized for that purpose, actually uses the acts to terrorize mentioned in this Act or to sow or create a condition of widespread and extraordinary fear and panic among the populace to coerce the government to give to an unlawful demand Sec.18 – Period of detention without judicial warrant of arrest *Art.125, RPC, notwithstanding, 3 days (counted from the time of arrest). No criminal liability for the arresting police officer

Sec.21 – Rights of a person under detention *think: Miranda Rights, waiver in writing and in the presence of counsel Sec.22 – Penalty for violation of detainee’s rights *xxx … unless the police or law enforcement personnel who violated the detainee’s rights is duly identified, the same penalty shall be imposed on the police officer or head or leader of the law enforcement unit having custody of the detainee at the time of the violation Sec.26 – Restriction on Travel

HIRYU KIMIKO OKUBO

*provided that the arrest must result from the surveillance under sec.7 and examination of bank deposits under sec.27

CRIMINAL LAW II 140 K notes *where evidence of guilt is not strong and accused is granted bail, the court shall limit the right to travel within the municipality or city where the offender resides or where the case is pending *travel outside the country shall be a violation of the conditions of bail *alternative: house arrest without use of telephones/cell phones/e-mail/computers/internet or other means of communication Sec.27 – Judicial Authorization required to examine bank deposits, accounts and records *RA 1405 notwithstanding, upon application, the CA may issue authorization after finding probable cause that a person charged with or suspected of terrorism or being a member of an outlawed group owns the accounts *same procedure for obtaining authorization, custody of data, evidentiary value, penalties for violations Sec.37 – Penalty for bank officials and employees defying a court authorization *Those who refuse get punished, too. Sec.39 – Seizure and Sequestration *Deposits and their outstanding balances, placements, trust accounts, assets and records shall be seized, sequestered and frozen in order to prevent their use, transfer or conveyance for purposes inimical to the safety and security of the people, or injurious to the State *However, a reasonable withdrawal of sums for family needs or the services of counsel shall be allowed upon permission of the court Sec.40 – Nature of seized, sequestered and frozen deposits, etc. *the seized and sequestered property shall be deemed as property held in trust by the bank for such person and the government during the pendency of the investigation; use or disposition of them shall be subject to the approval of the court Sec.44 – Infidelity in the custody of detained persons *Any public officer who has direct custody of a detained person under the provisions of this Act and who, by deliberate act, misconduct or inexcusable negligence causes or allows the escape of such detained person shall be guilty of an offense

*notwithstanding the provisions of RA 6981 (witness protection, security and benefits act), the immunity of government witnesses testifying under this act shall be governed by secs.17 and 18 of Rule 119, Rules of Court *provided that said witnesses shall be entitled to the benefits granted under RA 6981 Sec.48 – Continuous trial *in cases of terrorism or conspiracy to commit terrorism, the judge shall set the case for continuous trial on a daily basis from Monday to Friday or other short-term trial calendar to ensure speedy trial Sec.49 – Prosecution under this Act shall be a bar to another prosecution under the RPC or any other special penal laws *When a person has been prosecuted under a provision of this Act, and after the accused had pleaded

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Sec.45 – Immunity and protection of government witnesses

CRIMINAL LAW II 141 K notes 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 Sec.50 – Damages for unproven charge of terrorism *Upon acquittal, Php 500,000 for every day the offender has been detained without a warrant as a result of such accusation – to be charged automatically against the appropriations of the police agency or Anti-Terrorism Council that brought or sanctioned the filing of the charges and to be released 15 days from date of acquittal *Award of damages shall be without prejudice to the right of the acquitted person to file criminal or administrative charges against those responsible for charging him with terrorism Sec.52 – Applicability of the RPC *The provisions of Book I, RPC shall be applicable Sec.57 – Ban on Extraordinary Rendition *no person suspected or convicted of terrorism shall be subjected to any country unless his or her testimony is needed for terrorist-related police investigations or judicial trials in the said country and unless his or her human rights, including the right against torture and right to counsel, are officially assured by the requesting country and transmitted accordingly and approved by the Department of Justice Sec.58 – Extra-Territorial application of this Act

1. 2.

3. 4.

5.

6.

To individual persons who commit any of the crimes defined and punished in this Act within the terrestrial domain, interior waters, maritime zone, and airspace of the Philippines To individual persons who, although physically outside the territorial limits of the Philippines, commit, conspire or plot to commit any of the crimes defined and punished in this Act inside the territorial limits of the Philippines To individual persons who, although physically outside the territorial limits of the PH, commit any of the said crimes on board a Philippine ship or airship To individual persons who commit any of the said crimes within any embassy, consulate, or diplomatic premises belonging to or occupied by the Philippine government in an official capacity To individual persons who, although physically outside the territorial limits of the PH, commit said crimes against Philippine Citizens or persons of Philippine descent, where their citizenship or ethnicity was a factor in the commission of the crime; and To individual persons who, although physically outside the territorial limits of the PH, commit said crimes directly against the Philippine government

TITLE EIGHT CRIMES AGAINST PERSONS CHAPTER ONE DESTRUCTION OF LIFE

HIRYU KIMIKO OKUBO

*subject to the provisions of an existing treaty of which the Republic of the Philippines is a signatory and to any contrary provision of any law of preferential application, the provisions of this Act shall apply:


SECTION ONE – PARRICIDE, MURDER, HOMICIDE

Art.246 PARRICIDE *NB: It helps to recall Persons with respect to the definition of the victims of parricide… quite obviously because relationship is a key element in this crime Q: How is this committed? 1. A person is killed 2. He is killed by the accused 3. The deceased is the father, mother, or child – legitimate or illegitimate – or a legitimate other descendant, or the legitimate spouse of the accused Q: Who is the victim? The victim is either – a. The parents (father/mother); or b. The child (legitimate or illegitimate); or c. A legitimate OTHER descendant; or d. The legitimate spouse of the accused Q: Suppose you killed your brother. What crime did you commit? Murder or Homicide, depending on the circumstances attending the killing Q: Why is that? A brother (or sister) is not included in the enumeration of the law with respect to the relationship of the victim to the accused in the crime of parricide Q: An illegitimate grandson killed his illegitimate grandfather. What crime did he commit? Homicide or murder Q: A husband and wife were married. At the time of marriage, the wife was a minor whose consent was obtained through force. After 3 years, the husband killed her. What crime did he commit? Parricide Q: Why is that? Semper Presumitur Matrimonio – ‘always presume marriage’. The law attaches a presumption of validity to the marriage. If however, the marriage was proven to indeed be void ab initio, the crime is murder or homicide

*NB: the law does not require that the marriage should be solemnized in the Philippines, it only requires that the victim must be the legitimate spouse of the accused – as long as the marriage is valid (and it is presumed to be so), the crime is parricide. For all we know, a marriage license is not a requirement in HK, and even if it were… well, that’s another issue. For purposes of this question, the presumption of validity with respect to the marriage still attaches Q: Suppose the couple were Filipino Citizens and a Decree of Legal Separation was previously issued before the husband killed the wife. What crime was committed? Parricide Q: Why?

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Q: A husband and wife were married in Hong Kong without a marriage license. When they visited the Philippines, the husband killed the wife. What crime was committed? Parricide

CRIMINAL LAW II 143 K notes Because a Decree of Legal Separation does not sever the marital bond, the couple are still validly married under the law, and the victim was therefore the legitimate spouse of the accused Q: Suppose an Annulment case was pending when the husband killed the wife. What crime was committed? Parricide, the pending case has not yet been finally decided and the marriage was still valid as of the time of the killing Q: Suppose that on the day of the killing, a judgment of Annulment had just become final. What crime was committed? Murder or Homicide, the victim was no longer the legitimate spouse of the accused by virtue of the finality of the judgment Q: A prostitute killed her illegitimate year-old son. What crime did she commit? Parricide Q: Is not the killing of a child of tender years automatically attended by Treachery? Yes it is Q: Does not treachery qualify homicide to murder? It does Q: Why then do you say that the crime is parricide. Should it not be murder? The crime is still parricide; notwithstanding the presence of the qualifying aggravating circumstance of treachery because the law specifically sets apart the requirements of parricide and those requirements are met by the facts: a person (child of 1 year) was killed, the accused (prostitute) killed him, and he was her (illegitimate) son

NOTES: *Notice that as far as the ‘other descendant’ is concerned, that descendant has to be legitimately related to the accused, if he isn’t, the crime is murder or homicide, not parricide – which means that only relatives by blood in the direct ascending/descending line are considered – except, of course, where a legitimate spouse happens to be the victim *If there is no clear evidence of marriage, the presumption cannot attach, and the crime therefore, is murder/homicide *parricide may be committed through reckless imprudence

*the liability of a STRANGER cooperating in the commission of parricide is the liability for murder/homicide

Art.247 DEATH OR PHYSICAL INJURIESINFLICTED UNDER EXCEPTIONAL CIRCUMSTANCES Q: How is this committed? 1. A legally married person or parent surprises his (or her) spouse or daughter, the latter being under 18 and living with him (or her), in the act of sexual intercourse with another person 2. He/she kills any or both of them or inflicts any serious physical injuries during the act or immediately thereafter

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*the crime is STILL parricide, even if the accused was not aware of his/her relationship to the victim; the law does not require knowledge of relationship

CRIMINAL LAW II 144 K notes 3. He has not promoted or facilitated the prostitution of his wife or daughter; or he or she has not consented to the infidelity of the other spouse Q: Who may avail of the benefits of art.247? 1. A legally married spouse 2. The parent of a daughter under 18 and who is living with him/her Q: What benefits are granted by the law? 1. The accused incurs no criminal liability (or is exempted from the liability) for less serious or slight physical injuries 2. The punishment for the killing or infliction of physical injuries is Destierro Q: What is Destierro? It is a penalty consisting of deprivation of liberty whereby an accused is ordered by the court to stay within the limits provided by the court and to not come within a 25 – 250 kilometre radius of the area where the victim or victim’s family resides Q: A husband surprised his wife in the sexual act with another man. He fired his gun at the two. The wife was hit but according to the doctor, her injurious were only of a less serious character. Is he liable for her injuries? No Q: When should the killing or infliction of injuries take place? During the act itself or immediately thereafter Q: What do you mean by ‘immediately thereafter’? The discovery, the escape and the pursuit of the victim by the accused should all form part of one single act; there should be no unreasonable interval of time in between Q: Suppose that when the husband came home one night, he saw a man in his smallclothes jump out of the bedroom window. He followed the man, overtook him, and killed him. May he avail of the benefits of art.247? No

*NB: the time element is essential to the offence. 2 things have to be present: (1) observation of the act (i.e.: actually seeing it happen) and (2) acting within that time frame (i.e.: right then and there or just after). This is because the killing must be the direct by-product of the accused’s uncontrollable rage; it should have been motivated by blind impulse and must not have been influenced by external factors (i.e.: the accused should not have had time to seriously think about what he was doing). In essence, it’s vital that the accused did not have time for cold calculations, else that can only mean he purposefully considered the act of killing, and the full liability for parricide (if the victim is the spouse or daughter) or murder/homicide (if the victim is a stranger) attaches–kimi Q: Suppose the husband saw his wife and her paramour both naked in their bedroom. He shot them and they died. May he avail of art.247? No, he did not surprise them in the act Q: Suppose the husband saw the wife naked with her paramour. They were committing lascivious acts preliminary to the sexual act. He shot them. May he avail of art.247? No

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Q: Why not? The provision presupposes that the accused actually witnessed the act and committed the killing or infliction of injuries during the act or immediately thereafter; neither of these conditions were present

CRIMINAL LAW II 145 K notes Q: A husband had suspicions of his wife’s infidelity. He told her that he would go home to the province. He did not proceed there but simply waited for an hour, after which he returned home and caught the wife and her paramour in the act of intercourse. He went down to the kitchen, but couldn’t find a suitable knife. He remembered that he had lent the neighbour his revolver a day before. He went to the neighbour, recovered his gun and returned to his house. He found the paramour playing billiards and the wife in the kitchen. He shot and killed the paramour. May he avail of art.247? No, everything the husband did was premeditated. The liability for murder attaches. Q: Same facts, except that the husband had no suspicions and did not say he would go to the province or wait for an hour. He simply walked in, saw them, and commenced the earlier narrated actions. May he avail of art.247? Yes, all his actions in this case formed one fluid and spontaneous act and the killing happened immediately after his observation of the sexual act; the killing was still the proximate cause of his obfuscation Q: What is the penalty for art.247? Destierro Q: What is the purpose of destierro? The protection of the accused from retributory acts which could be committed by the victim or the victim’s family Q: Suppose the husband surprised his wife in the act with her paramour. He shot the paramour and the bullet also hit the houseboy, who happened to be standing behind the bedroom wall. Is the husband liable for the death or injuries of the houseboy? Yes Q: Suppose one night, the husband arrived home early and found his wife and her paramour sleeping in the same bed. He took his gun from the nightstand and shot the paramour. Is he liable? Yes (*trolling moment: do NOT interpret ‘sleeping in the same bed’ as the sexual act) Q: Suppose he arrived home, heard a stranger’s voice from inside and before opening the door, peaked through a crack in the door. He saw his wife and her paramour rising from the bed, the paramour was buttoning up his drawers. He opened the door and fired at both of them. Is he liable? Yes, he did not see the sexual act Q: A husband saw his wife and a stranger in the sexual act. The wife was screaming for help. He ran down to the kitchen, grabbed a knife and stabbed the stranger. May he invoke art.247? No, but he may invoke art.11, par.2 (defence of relative)

Q: Suppose the husband and his wife agreed that on certain days, they could both have sex with other partners. One night, a night scheduled to be the husband’s turn, he caught the wife with another partner in the sexual act. He stabbed the partner to death. Will the husband be liable? Yes, he consented to his wife’s infidelity

NOTES: *Whatever the book says, this article ISa felony. It defines the manner of commission of a criminal act and attaches a penalty for it –Atty. A *Obviously, the sexual act contemplated by the article must be voluntary

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Q: A husband saw the sexual act between his wife and her paramour. The act appeared to be voluntary. He went down to the kitchen to get a knife but when he returned, the paramour was no longer there. The next day, the husband saw the paramour by a convenience store and shot the latter. Will he be liable for murder? Yes


Art.248 MURDER *NB: Reviewing art.14 and the kinds of Aggravating Circumstances is a must when studying this crime Q: How is murder committed? 1. A person was killed 2. The accused killed him 3. The killing was attended by any of the (6) qualifying circumstances under art.248 4. The killing was NOT parricide or infanticide Q: What are the six classes of qualifying aggravating circumstances? 1. Treachery; taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defence or of means or person 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 or 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 other public calamity 5. Evident premeditation 6. Cruelty; deliberately and inhumanly augmenting the victim’s suffering; or outraging or scoffing at the person or corpse *NB: That’s pretty hairy memory work, so here’s my own aide-mémoire. I’ve found that it becomes easier to associate whole classes with a few key words so that when you recall the word, the whole class comes to mind: -kimi a. Treachery b. Incentives c. Flood, Fire, Poison and Vehicles d. Public Calamities e. Premeditation f. Cruelty Q: Distinguish Murder from Homicide MURDER ART.248

HOMICIDE ART.249

Somebody was killed, the killing was attended by qualifying aggravating circumstances

Somebody was killed and while there might have been other kinds of aggravating circumstances, there were no qualifying aggravating circumstances

Q: So if you killed a person without any of the 6 Qualifying Aggravating Circumstances, what is the crime? Homicide Q: Suppose there was a generic aggravating circumstance, how would you classify the killing? Homicide Q: What are the kinds of aggravating circumstances? 1. Generic 2. Inherent

HIRYU KIMIKO OKUBO

*let’s make this easier –kimi

CRIMINAL LAW II 147 K notes 3. Specific 4. Qualifying 5. Special* GENERIC Attend the commission of any crime

INHERENT Are essential to the commission of certain crimes

SPECIFIC Specifically attend the commission of particular crimes

May be offset by ordinary mitigating circumstances



i.e.: dwelling, night time

i.e.: trespass to dwelling in the crime of robbery

i.e.: ignominy in the crime of rape

QUALIFYING Change the nature of a crime

SPECIAL* Specifically provided by law

May not be offset by an ordinary mitigating circumstance

Attend only the commission of certain crimes, the application thereto dictated by direct provision, usually not applied in analogy to other similar crimes unless provided so by the law

Requires a privileged mitigating circumstance in order to be offset i.e.: treachery, evident premeditation, cruelty

i.e.: when murder is attended by the commission of any of the acts of torture, the penalty for murder shall be imposed in its maximum (see: Sec.22, AntiTorture Law)

Q: Suppose that in a trial, a qualifying aggravating circumstance is not alleged but the prosecution introduced a witness and presented evidence proving the existence of such a qualified aggravating circumstance. The defence did not object, and the qualified aggravating circumstance was actually proven. What is the effect of the presence of that QAC? The crime is homicide – the QAC will only serve to increase the penalty

*NB: Intoxication is not a Qualified Aggravating Circumstance. As per article 15, RPC, intoxication is an alternative circumstance which, depending on the conditions attending the crime, may either be aggravating or mitigating Q: Suppose the accused was under the influence of drugs? The crime is murder *NB: Influence of drugs is considered a qualifying aggravating circumstance, as per sec.25 of the Comprehensive Dangerous Drugs Act Q: Suppose the accused used an unlicensed firearm to kill the deceased? The crime is murder, due to the use of an unlicensed firearm Q: Will the accused be simultaneously liable for illegal possession of firearm?

HIRYU KIMIKO OKUBO

Q: Suppose a person was killed and the accused was under the influence of alcohol. What crime was committed? Homicide

CRIMINAL LAW II 148 K notes No

NOTES: *Because of the nature of murder, the obvious consummation of the crime is when the victim is actually killed. Else, the crime is frustrated/attempted murder only *When there are more than one qualifying aggravating circumstances attending the killing, only one will serve to qualify the offense to murder. The other qualifying circumstances will operate as generic aggravating circumstances (apparently this means, you can’t browbeat the accused by stacking the qualifying circumstances) *The qualifying circumstance(s) should be alleged in the information. Else, the crime will not become murder and those circumstances will be considered generic aggravating circumstances *There must be INTENT TO KILL if the crime was committed by means of the methods enumerated under par.3, art.248 (i.e.: inundation, fire, poison etc), but killing a person with TREACHERY is murder, even if there was no intent to kill, because of the voluntary nature of treachery

1.

RULES FOR THE APPLICATION OF QUALIFIED AGGRAVATING CIRCUMSTANCES TO THE CRIME OF MURDER When more than one circumstance are present, the others must be considered as generic aggravating circumstances

2. When the other circumstances are absorbed in one qualifying circumstance, they cannot be considered as separate generic aggravating circumstances 3. Any of the qualifying circumstances must be alleged in the information

*To constitute treachery, the means, methods, or forms of attack must be consciously adopted *The killing a child of tender years constitutes treachery *The crime is murder if superior strength was taken advantage of *Re: armed men, the men must take part in the commission of the crime, directly or indirectly, and the accused must avail himself of their aid or rely upon them

*Proving Premeditation: 1. Prove time when the determination to kill was made 2. Overt act manifestly indicating that the offender clung to his determination 3. Sufficient lapse of time between the determination and the execution of the killing *Atty.A does not spend much time on discussing the 6 qualifying aggravating circumstances in murder because he holds people responsible for reviewing their criminal law 1 notes regarding the circumstances affecting criminal liability

ART.249 HOMICIDE Q: How is this committed?

HIRYU KIMIKO OKUBO

*TREACHERY and PREMEDITATION are inherent in murder by poison and CANNOT be considered as aggravating circumstances for the purpose of further increasing the penalty

CRIMINAL LAW II 149 K notes 1. 2. 3. 4.

A person was killed The accused kills him without any justifying circumstances The accused had the intention to kill, which is presumed The killing was NOT attended by any of the qualifying aggravating circumstances of Murder, or by those of Parricide/Infanticide

NOTES: *Intent to kill is conclusively presumed when death resulted, because with respect to crimes of personal violence, the penal law looks particularly to the material results following the unlawful act and holds the aggressor responsible for all the consequences thereof *Evidence of intent to kill is important only in attempted/frustrated homicide – in these cases, if there is no intent to kill, the crime is physical injuries *Death of the victim due to his own refusal to seek medical attention is NOT a defence, that he would have lived had he received proper medical aid is immaterial *There is NO crime as ‘frustrated homicide through imprudence’ *When the wounds that caused death were inflicted by 2 different persons acting independently, even if they were not in conspiracy with each other, each one is guilty of homicide (because either wound could have caused death) – this rule is applicable when there is no conspiracy, otherwise, the act of one is the act of all *Use of unlicensed firearm is aggravating in homicide. In such a case, the circumstance is not considered a separate crime but will be appreciated as a mere aggravating circumstance *In all crimes against persons of which death is an element, there must be satisfactory evidence of – 1. The fact of death 2. The identity of the victim (ergo, if the victim was unknown, the body unfound, the fact of death was not sufficiently established – BUT if the victim was known and could not have survived (i.e.: his hands were tied before being thrown into the water), even if the body was never found, the corpus delicti is established)

Q: How may the courts apply penalties for the 3 crimes mentioned? 1. The penalty lower by 1 degree than that which should be imposed under the provisions of art.50 may be imposed on the accused, in view of the facts 2. Considering the facts, the courts may likewise reduce by 1 degree the penalty which under art.51 should be imposed for an attempt to commit parricide/murder/homicide Q: Are these rules mandatory? No, they are permissive – the courts are given latitude to decide reasonably, and to impose the penalties which align with the facts NOTES: *Think: 2 degrees lower than the penalty imposed by the law for frustrated parricide/murder/homicide; 3 degrees lower for attempted parricide/murder/homicide/

HIRYU KIMIKO OKUBO

ART.250 PENALTY FOR FRUSTRATED PARRICIDE, MURDER OR HOMICIDE


ART.251 DEATH CAUSED IN A TUMULTUOUS AFFRAY *NB: Think, death in the course of a free-for-all lol Q: How is this committed? 1. There are several persons 2. They did NOT compose groups organized for the common purpose of assaulting and attacking each other reciprocally 3. They quarrelled 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 him 6. The person/s who inflicted physical injuries or who used violence can be identified Q: Give an example *NB: This is easy, just remember the adjectives – ‘confused and tumultuous’. There ought to be a melee out there, with no two groups fighting in an organized manner. Something like a spontaneous altercation – like in a bar. Conjure up a picture of someone drunk, who heard something he didn’t like and… all hell breaks loose lol (what? bar fights amuse me :P ) –kimi Q: Will this provision apply if the person who killed the deceased can be identified? No, if he can be identified his liability is the one for murder/homicide Q: Who are liable? 1. The persons/s who inflicted the serious physical injuries 2. If such persons are unknown, all persons who used violence upon the deceased (with lesser penalties) Q: How many persons should there be in order for it to be a ‘tumultuous affray’? At least four Q: Suppose 2 rival gangs met in alley and assaulted each other. One person died in the course of the fight. Does this provision apply? No – the groups must not be (a) identified and/or (b) organized

Q: How is this committed? 1. There is a tumultuous affray as referred to in art.251 2. A participant/some participants thereof suffered serious physical injuries/less serious physical injuries 3. The person responsible for the injuries cannot be identified 4. All those who appear to have used violence upon the person of the offended party are known Q: If the person responsible for the injuries can be identified, what is his liability? Physical Injuries Q: Is it required that the injured party must be a participant in the affray? Yes Q: What if the offender can be identified, but the injuries were only of a slight nature? This provision does not apply

HIRYU KIMIKO OKUBO

ART.252 PHYSICAL INJURIES INFLICTED IN A TUMULTUOUS AFFRAY


ART.253 GIVING ASSISTANCE TO SUICIDE Q: What are the punishable acts? 1. Assisting another to commit suicide, whether consummated or not (i.e.: furnishing him with the means to commit suicide) 2. Lending assistance to another to commit suicide to the extent of doing the killing himself Q: Give an example Q: What do you mean by ‘suicide’? Self-destruction, the wilful taking of one’s one life Q: Is the suicidal person liable, supposing the attempt to take his life fails? No he is not Q: Suppose an abortion results from the suicidal act of a pregnant woman. Is the woman liable for the abortion? No Q: Why not? Suicide is not a crime under our penal laws. Since the woman is not liable for attempting suicide, she is also not liable for the result of that attempt Q: Suppose you feel that you will fail criminal law 2. You asked your classmate to push you off the ledge while you stand at the top of this building. Instead of dying, you were able to recover. May you be liable? No, the party committing suicide is not liable *NB: curious, this…Perhaps because suicidal people are not truly balanced? I found myself involuntarily staring off into space contemplating the reason for the lack of liability of the suicidal party. At any rate, the law isn’t concerned with his/her motives. It is enough that the law does not make that person liable –kimi Q: What about your classmate? He/she is liable under art.253 Q: Suppose you saw your grandmother suffering from a disease, she asked for your help, and you decided to perform acts that constitute euthanasia (mercy killing). Will you be liable? Yes (see: 2nd punishable act, assistance to the extent of doing the killing yourself)

*NB: for purposes of this question – note that the suicidal person (grandma) requested your help in ending her life. Even if she requested it, the law makes you liable. Consent of the victim, therefore, is neither mitigating nor justifying. I wholly disagree with this part of the law, I think suffering victims should be given the right to choose their manner of death – but my opinions carry no weight as far as this provision goes. The law is clear: help anybody die – even for humanitarian reasons as defined under existent theories for euthanasia – and you are liable. (Needless to say, I personally make a quiet distinction between helping demented persons die – which I believe is wrong because they are not aware of the consequences of their action and could very well be obfuscated – and helping terminally ill, medically-diagnosed, physicallysuffering patients die; that last group, I think, if they can be proven to have reached a lucid and wilful decision to end the pain, should be given a choice.) –kimi Q: Is suicide lawful? Yes

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Q: So you’re saying that the law considers this kind of euthanasia synonymous to ‘assisting suicide’? Yes, it does

CRIMINAL LAW II 152 K notes *NB: by ‘lawful’, we don’t mean ‘right’ or ‘moral’ or ‘good’. What is meant by ‘lawful’ is that the act is not considered a crime, much less punished as such, by the law. Saying something is ‘lawful’ is in effect stating that there is an absence of a law punishing the act, it is NOT saying that the act is morally or properly good

ART.254 DISCHARGE OF FIREARM Q: How is this committed? 1. The offender discharges a firearm at another person 2. He has no intention to kill that person Q: How is this different from alarms and scandals? Here, the person actually aims a gun – and fires – at another human being Q: Distinguish this from attempted murder Under art.254, there is no intent to kill – whether actual or presumed by law Q: What is the purpose of the offender in art.254? To intimidate or frighten the offended party Q: How would you know if the crime is illegal discharge of firearm or grave threats? Grave threats involve a condition; Illegal Discharge of firearm (while it is committed in a threatening manner) does not involve a condition Q: A gun was aimed at the house of your neighbour. Is this punishable under art.254? No, the crime is alarms and scandals Q: A gun was aimed at A, but when it was discharged, the shooter shifted and as a result, the bullet was fired a few inches to A’s right. What crime did the shooter commit? Illegal Discharge of Firearm

NOTES *Actual discharge of the gun is controlling, and the gun must be aimed at somebody – not something *A person can be held liable for discharge even if the gun was not pointed at the offended party when it fired, as long as it was initially aimed at the offended party

*Intent to kill is negated by the distance between the offender and the victim (I honestly think this is ridiculous, considering that a crack sniper – say, a member of the US Marine Sniper Company – can take you out with a headshot from a kilometre away – that’s 1,000 metres, worrrd. And yes, I know more about guns and shooting than most girls do, I like stuff that have to do with the military – not the Philippine military, of course – because we’ve no such thing to speak of lol)–kimi *’This provisions is already irrelevant, considering the nature of guns we have now. Is not the nature of the weapon indication enough of intent to kill? You FIRED A GUN at somebody’ –Atty.A

SECTION TWO – INFANTICIDE AND ABORTION *suggested reading: for information’s sake, Roe v. Wade –kimi

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*There must be no intention to kill


ART.255 INFANTICIDE Q: How is this committed? 1. A child was killed 2. It was less than 3 days (72 hours) old 3. The accused killed that child Q: Distinguish this from abortion In abortion, the victim is a foetus. In infanticide, the victim is a child less than 3 days old Q: Suppose a stranger killed a 48-hour old baby with the use of poison. What crime did he commit? Infanticide *NOT murder, notwithstanding the use of poison, which would have resulted in murder if the victim had not been a 2-day old child. The age of the victim is controlling, with respect to infanticide Q: Suppose the mother killed her 29-hour old baby. What crime did she commit? Infanticide Q: May the penalty for infanticide be mitigated? It depends Q: On what? On who committed the crime, and for what reason – If the person who killed the child was its own mother or maternal grandparents, and the killing was done to conceal dishonour, the penalty may be mitigated *NB: I extremely disagree with this part of the law. The original notes for this stated that ‘provided they are of good character’. In any event, how is ‘good character’ supposed to square with killing a baby less than 3 days old? I think that only complete insanity should excuse a mother for killing her child, and no circumstance should excuse that mother’s parents – the child’s maternal grandparents – from killing it,honour or no honour –kimi Q: Suppose the child was born dead, or although born alive, could not sustain an independent life of its own. Is there infanticide? No, the child could not sustain a life of its own

*When the offender is the FATHER, MOTHER or LEGITIMATE ASCENDANT of the child, the offender shall suffer the penalty prescribed for parricide. If the offender is another person, the penalty is that for murder *Only the mother and the maternal grandparents of the child are entitled to the mitigating circumstance of concealing dishonour (this is deplorable –kimi) *’What is material here is the AGE of the child, not the qualifying circumstances or the relationship of the offender to the victim’ –Atty.A *A stranger who cooperated in the killing is also guilty of infanticide, but the penalty is that for murder *There is no infanticide if the child is born dead or although born alive, could not sustain an independent life of its own

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NOTES


ART.256 INTENTIONAL ABORTION Q: How is this committed? 1. There is a pregnant woman 2. Violence is exerted on her; or drugs or beverages administered to her; or the accused otherwise acts upon the pregnant woman 3. As a result of the use of violence/drugs/beverages/any other act of the accused, the foetus dies, either in the womb or from having been expelled therefrom 4. The abortion was intended Q: What are the ways of committing intentional abortion? 1. By using any violence upon the person of the pregnant woman 2. By acting, but without using violence, without the consent of the woman 3. By acting with the consent of the pregnant woman Q: Who are liable? 1. The pregnant woman, if she consented to the abortion 2. Any person who caused the abortion – with or without the woman’s consent

Q: Is it necessary that the victim of abortion must be unable to live on its own? Yes Q: What if the foetus was killed after having been separated from the womb? If it could sustain a life of its own, the crime is infanticide

ART.257 UNINTENTIONAL ABORTION Q: How is this committed? 1. There is a pregnant woman 2. Violence is used on her without intending an abortion 3. The violence is intentionally exerted 4. As a result of the violence, the foetus dies – either in the womb or after having been expelled therefrom

Q: Suppose a jeepney driver who was driving recklessly hit a pregnant woman. She was thrown a few metres away, as a result of which, she suffered an abortion. What crime did the driver commit? Physical Injuries – the violence was not intended Q: Suppose a pregnant woman had an argument with her husband. He slapped her, which caused her to fall and lose the baby. Is he liable under art.257? Yes Q: Suppose he did not slap her but the argument caused the wife to bleed and lose the baby. Is he liable? No, there was no violence exerted

ART.258 ABORTION PRACTICED BY THE WOMAN HERSELF

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Q: May there be a crime of unintentional abortion through reckless imprudence? No, the violence must be intentionally exerted – if the violence resulted from imprudence, there is no conformity to the elements of art.257 and therefore, no crime of that nature


OR BY HER PARENTS Q: How is this committed? 1. There is a pregnant woman who has suffered an abortion 2. The abortion was intended 3. It was caused by – a. The pregnant woman herself b. Any other person with her consent c. Any of her parents with her consent Q: Does concealing dishonour operate as a mitigating circumstance here, as far as the woman is concerned? Yes Q: Who is entitled to invoke it? The woman ONLY Q: What about her parents? They may NOT invoke it *NB: while it is true that under infanticide, the maternal grandparents may also invoke the mitigating circumstance of concealing dishonour, this is not the case with art.258 (I honestly do not know why, considering that in infanticide, a living, breathing, child is killed, as opposed to the termination of a nameless, not yet fully formed foetus – not to say that one crime is less reprehensible than the other, but the distinction is certainly odd, isn’t it? –kimi)

NOTES *Instances when the woman is liable: (1) when she performs the abortion herself; (2) when she consents that any other person or her parents perform the abortion *persons liable: (1) the woman (under par.1); (2) the ‘other person’; (3) the woman’s parents

ART.259 ABORTION PRACTICED BY A PHYSICIAN OR MIDWIFE AND DISPENSING OF ABORTIVES

**NB: elements of the offense, as far as pharmacists are concerned: a. The offender is a pharmacist b. There is no proper prescription from a physician c. He dispenses any abortive Q: May this be committed through reckless imprudence? No, the offender must knowingly take advantage of his/her scientific knowledge or skill

SECTION THREE – DUEL

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Q: How is this committed? 1. There is a pregnant woman who has suffered an abortion 2. The abortion is intended 3. The offender, who must be a physician/midwife, causes the abortion or assists in causing it 4. The physician/midwife takes advantage of his/her scientific knowledge or skill


ART.260 RESPONSIBILITY OF PARTICIPANTS IN A DUEL Q: What are the punishable acts? 1. Killing one’s adversary 2. Inflicting physical injuries on an adversary 3. Participating in combat, although no physical injuries have been inflicted Q: What is a duel? A formal or regular combat previously concerted between 2 parties in the presence of 2 or more Seconds of lawful age on each side, who make the selection of arms and fix all the other conditions of the fight *NB: Think: Heath Ledger in the movie ‘A Knight’s Tale’; or Jim Caviesel in ‘The Count of Monte Cristo’ – yes, this is so archaic(not to mention, it sounds ridiculous. So medieval. So dark ages) – kimi Q: Who may be liable? 1. The person who killed his opponent, or who inflicted injuries 2. The Seconds are liable as accomplices Q: Suppose no one was injured or harmed in the duel. Can the combatants still be held liable? Yes Q: One of the combatants was seriously injured but he survived. May he still be liable for participating in a duel? Yes

ART.261 CHALLENGING TO A DUEL Q: What are the punishable acts? 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

Q: Who are liable? 1. The challenger 2. The instigators

CHAPTER TWO PHYSICAL INJURIES ART.262 MUTILATION Q: What is mutilation? The loping off, or clipping off, of some part of the body

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Q: Who are the Seconds?

CRIMINAL LAW II 157 K notes *NB: putting out an eye is not mutilation Q: What are the 2 kinds of mutilation? 1. Intentionally mutilating another by depriving him, either totally or partially of some essential organ for reproduction 2. Intentionally making other mutilations – lopping off, or clipping off, any part of the body other than the essential organs for reproduction, to deprive someone of that part of his body Q: Distinguish mutilation from physical injuries -In Mutilation, the offender acts with the deliberate intent to deprive someone of the use of a part of the body; -In Physical Injuries, the offender’s purpose is merely to inflict bodily injury Q: How would you know if the injuries inflicted constitute the crime of mutilation or attempted/frustrated homicide? By ascertaining the presence or absence of intent to kill

ART.263 SERIOUS PHYSICAL INJURIES Q: How is this committed? By – 1. Wounding 2. Beating 3. Assaulting; or 4. Administering injurious substances Q: What are the injuries contemplated? 1. Insanity, imbecility, impotency or complete blindness 2. Loss of the senses (i.e: speech, hearing, smell), loss of limbs (i.e.: hand, foot, arm or leg), partial blindness (loss of only one eye); permanent incapacity for work 3. Deformity or the loss of another part of the body; Loss of the USE of any other part of the body; incapacity for labour for more than 90 days 4. Illness or incapacity from labour for more than 30 days Q: How would you know if the crime was serious physical injuries or murder/ homicide/ parricide/ infanticide? Presence/absence of intent to kill

REPUBLIC ACT 8049 THE ANTI-HAZING LAW REPUBLIC ACT 8049 ANTI-HAZING LAW Summary of Important Definitions and Salient Provisions Sec.1 Hazing: Any initiation rite or practice as a prerequisite for admission into membership in a fraternity,

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Q: Suppose that during the recruitment of a neophyte, and his initiation into a fraternity, the neophyte suffered injuries which lasted for more than 30 days. What are the liabilities of the fraternity members? Violations of the Anti-Hazing Law

CRIMINAL LAW II 158 K notes 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 similar tasks or activities or otherwise subjecting him to physical or psychological suffering or injury Organization: Includes any club of the Armed Forces of the Philippines, the Philippine National Police, the Philippine Military Academy, or Cadet Corps of the Citizen’s Military Training or Citizen’s Army Training Sec.2 *Prior written notice to the school authorities/head of the organization 7 days before the conduct of such initiation which shall not exceed 3 days *Notice shall include the names of those to be subjected to such activities, and an undertaking that no physical violence shall be employed by anybody during such rites Sec.3 *At least 2 representatives of the school or organization must be present to see to it that no physical harm of any kind shall be inflicted Sec.4 *If the person subject 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 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/s charged under these provisions even before their conviction

*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/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 the faculty members who consent to the hazing or who have actual knowledge thereof, but failed to take action to prevent the same from occurring shall be punished as accomplices for the acts of hazing committed by the perpetrators *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

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*The maximum penalty herein provided shall be imposed in any of the following instances: a) When the recruitment is accompanied by force, violence, threat, intimidation or deceit on the person of the recruit who refuses to join; b) When the recruit, neophyte, or applicant initially consents to join but upon learning that hazing will be committed on his person, is prevented from quitting; c) When the recruit, neophyte or applicant having undergone hazing is prevented from reporting the unlawful act to his parents/guardians, to the proper school authorities, or to the police authorities, through force, violence, threat or intimidation; d) When the hazing is committed outside of the school or institution; or e) When the victim is below 12 at the time of the hazing


*The presence of any person during the hazing is prima facie evidence of participation therein as a principal unless he prevented the commission of the acts punishable herein *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

Author’s Note:

~ Kimiko

Q: What is hazing? Q: how is it committed? *NB: see sec.1 Q: What are the organizations covered and those that are not? *NB: see sec.1

HIRYU KIMIKO OKUBO

February 19, 2012, Sunday, saw this particular piece of legislation come alive in a way this block could never have anticipated. One of our own, Marvin P. Reglos, was set to join the Lambda Rho Beta Fraternity and would be initiated that day. He died as a result of the injuries inflicted on him during the initiation. His death shocked all levels of the academe – and was aired over a period of weeks on national news channels. We all watched the story piece itself together. He was taken to a poolside resort in Antipolo, Rizallate on February 18 (Saturday). The next day, at around 3pm or thereabout, a red Honda Civic stopped by the emergency room of Unciano Medical Centre, and Marvin was left to the care of the attending doctors. He was pronounced dead after doctors tried in vain to revive him for 20 minutes. Later that afternoon, 2 unidentified men showed up at the medical centre, claiming to be ‘friends’ of Marvin, and wanting to know how he was doing. They claimed that they had received messages, informing them that Marvin was at the centre (a blatant lie which the doctors promptly refuted. Nobody in that centre alerted them to Marvin’s condition – he died alone). The police who were then investigating the death took them into custody. Murder charges were filed against those 2 men – later identified as former Bedan law students and a few others, including the ‘Grand Rhoan’ of the Fraternity. As I write this (May 27, 2012), trial is still on-going. There are no words at all to describe the horror of what we went through as we travelled to Antipolo and saw him for ourselves, the agony of watching a father weep over his son in a morgue (that father’s screams echo forever in the darkest corners of my dreams), and of a mother arriving home from South Korea to be at her son’s wake and the funeral that would follow. We made the 15-hour trip to Marvin’s hometown of Burgos, Isabela – where we were met with the anger of an entire community – people who hated what was done to him, the brutality he was subjected to… People who did not know that it was our loss too. I’m writing this because Marvin was my friend. And because his story deserves to be told. Unequivocally, I would like to state that I denounce the use of violence as a requisite for membership in any organization. No amount of justification can supply the lacking principle – not loyalty, or brotherhood, or strength or courage; not even consent. Marvin made the mistake of thinking that being in a fraternity was a way to help boost survival within the law school, and an avenue for acceptance. Those same people he looked to for support took his life even as he trusted them with it. The extreme cruelty with which they had treated my friend was evident from the injuries he bore – everywhere skin showed, there were bruises. He died of kidney failure, the autopsy report said; kidney failure from the sheer loss of blood.So ended the dreams of our kind, funny Marvin – eldest among 3 siblings born to a farmer and an OFW. So much for the vaunted ideals of brotherhood – which those particular fraternity membersclearly negated when they arrogated to themselves the right to take a life. They deserve none of this society’s sympathy.


Q: Who are liable? 1. PRINCIPALS: a. The members or officers of the organization who participated in the infliction of harm, if the person subjected to hazing suffers any physical injury or dies as a result thereof b. Parents of a member of the organization, when the hazing has been carried out in that member’s home and the parents had actual knowledge of the hazing, and failed to prevent it c. Officers, former officers, alumni of the organization who planned the hazing, although they were not actually present during the event d. Persons actually present during the initiation who fail to prove that they acted to prevent the same 2. ACCOMPLICES: a. The owner of the place where hazing took place, if he had actual knowledge of the hazing and failed to prevent it b. School authorities and faculty members who had actual knowledge of the hazing and failed to prevent it Q: What are the legal requirements regarding the conduct of initiation rites? -Prior written notice to the school authorities/organization head containing the names of the members who will be participating, and submitted 7 days before the event. -The notice must also contain an undertaking that no physical violence shall be employed by any person during the rites -2 school/organization authorities must be present during the initiation rites to insure that no physical harm shall be inflicted Q: What is the legal effect on the mitigation of liability, as far as being charged with a violation of this special law is concerned? The accused is not entitled to the mitigating circumstance that there was no intention to commit so grave a wrong Q: What is the presumption of the law, with regards to persons actually present during the hazing? Persons who are present during the hazing are presumed to have participated therein as principals unless they can prove that they prevented the commission of the hazing

NOTES: *Serious physical injuries may be committed through reckless imprudence or simple imprudence

*Blindness requires loss of vision in both eyes or one, it does not include mere weakness of vision *Re: physical injuries, a tooth is considered a member of the body *’Deformity’ involves physical ugliness, permanent and definite abnormality. It includes scars or bodily impairments that are (a) not curable by natural means or by nature; as well as (b) conspicuous and visible (i.e.: if it’s covered by clothing, even if it does happen to be a horrible scar, it isn’t deformity, as far as the law is concerned) *Loss of hearing must be in both ears; else the injury is merely considered a loss of the use of one part of the body, not deafness as in loss of the power to hear *’Labour’ includes work, studies or preparation for a profession

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*Impotency and sterility are not synonymous


*When the category of the offense of serious physical injuries depends on the period of the illness/incapacity for labour, there must be evidence of the length of that period, else the offense will be considered merely as slight physical injuries *There is no ‘incapacity for labour’ if the injured party could still engage in his work albeit less effectively than before *Serious physical injuries is qualified when the crime is committed against the same persons enumerated under parricide; or when it is attended by any of the circumstances defining the crime of murder HOWEVER, serious physical injuries resulting from excessive chastisement by parents is not qualified (this is another thing I disapprove of – excessive chastisement by parents should be qualified – no parent should be able to escape a higher penalty for seriously hurting a child just because he/she happens to be that child’s parent –kimi)

ART.264 ADMINISTERING INJURIOUS SUBSTANCES OR BEVERAGES Q: How is this committed? 1. The offender inflicted any serious physical injuries on another 2. It was done by knowingly administering any substances or beverages or taking advantage of the victim’s weakness of mind or credulity 3. The offender had no intent to kill Q: What are the penalties for this crime? Those established by the article on serious physical injuries Q: Suppose the resulting injury was not of a serious nature Art.264 is not applicable Q: What crime was committed if the offender possessed intent to kill? Frustrated Murder

ART.265 LESS SERIOUS PHYSICAL INJURIES

Q: Distinguish this from attempted or frustrated murder/homicide There is no intent to kill in less serious physical injuries Q: May this be committed through negligence? Yes Q: What qualifies the crime? 1. Manifest intent to insult or offend the injured person 2. Presence of circumstances adding ignominy to the offense 3. Relationship a. If the victim is either the offender’s parent, ascendant, guardian, curator or teacher b. If the victim is a person of rank or a person in authority, provided that the crime does not fall under Direct Assault

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Q: What are less serious physical injuries? Physical injuries not described by law as ‘serious’ (see: arts.263, 264) but which shall incapacitate the offended party for labour for 10 days or more (but not more than 30 days), or shall require medical attendance for the same period


ART.266 SLIGHT PHYSICAL INJURIES AND MALTREATMENT Q: When are injuries considered to be of a slight nature? 1. When the offended party was incapacitated for labour from 1-9 days, or shall require medical attendance during the same period 2. When the offended party has sustained injuries which do not prevent him from engaging in his habitual work nor require medical attendance 3. When the offender ill-treats another by deed without causing any injury

CHAPTER THREE RAPE (As amended by Republic Act 8353) *NB: For obvious reasons, this chapter composes one consolidated discussion

ART.266-A RAPE, WHEN AND HOW COMMITTED ART.266-B PENALTIES ART.266-C EFFECT OF PARDON ART.266-D PRESUMPTIONS Q: How is rape classified? Rape is classified as a public crime, a crime against persons Q: Before being included under crimes against persons, what Title was Rape under? Rape used to be a crime against chastity, and as such, a private crime

Q: What is the legal effect of the reclassification and redefinition of Rape under RA 8353? 1. Marital Rape has become a punishable offense 2. Rape has become a public crime (whereas before, only the offended party may institute the charges) 3. Rape was made a non-bailable offense 4. Rape can now be committed not only through sexual intercourse but also through sexual assault Q: How is rape committed? 1. By a man who shall have carnal knowledge of a woman under any of the following circumstances: a. Through force, threat or intimidation b. When the offended party is deprived of reason or is otherwise unconscious c. By means of fraudulent machination or grave abuse of authority

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Q: What is a public crime? Any crime which may be prosecuted ex officio (by the public prosecutor)

CRIMINAL LAW II 163 K notes d. When the offended party is under 12 or is demented, even though none of the circumstances mentioned above is present 2. By any person who, under any of the circumstances mentioned in par.1 of art.266-A, shall commit any act of sexual assault by inserting his penis into another person’s mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person *NB: here’s a table to help you out, I found the book rather disorganized when it came to this Kimi ELEMENTS OF RAPE UNDER PAR.2 (rape through sexual assault) 1. The offender commits an act of sexual assault 2. The act is committed by any of the following means: a. By inserting his penis into another person’s mouth or anal orifice; or b. By inserting any instrument/object into the genital/anal orifice of another person 3. The act is accomplished under any of the following circumstances: a. By using force/intimidation b. When the woman is deprived of reason or is unconscious c. By means of fraudulent machination or grave abuse of authority d. The woman is under 12 or is demented

Q: What are the qualifying aggravating circumstances in rape? 1. When the victim is under 18 and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the 3rd civil degree, or the common law spouse of the victim’s parent 2. When the victim is under the custody of the police or military authorities or any law enforcement or penal institution 3. When the rape is committed in full view of the spouse, parent, any of the children or other relatives within the 3rd civil degree of consanguinity 4. When the victim is a religious engaged in legitimate religious vocation or calling and is personally known to be such by the offender before or at the time of the commission of the crime 5. When the victim is a child below 7 years old 6. When the offender knows that he is afflicted with HIV/AIDS or any other sexually transmitted diseases and the virus/disease is transmitted to the victim 7. When committed by any member of the AFP or paramilitary units thereof or the PNP or any law enforcement agency or penal institution, when the offender took advantage of his position to facilitate the commission of the crime 8. When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation or disability 9. When the offender knew of the pregnancy of the offended party at the time of the commission of the crime 10. When the offender knew of the mental disability, emotional disorder and/or physical handicap of the offended party at the time of the commission of the offense *NB: As always, I found it simpler to memorize this by taking key words and associating the key words with the entire circumstance, here’s my list: 1. Age and relationship 2. Official custody

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ELEMENTS OF RAPE UNDER PAR.1 (rape through sexual intercourse) 1. The offender is a man 2. He had carnal knowledge of a woman 3. Such an act is accomplished under the following circumstances: a. By using force/intimidation b. When the woman is deprived of reason or is unconscious c. By means of fraudulent machination or grave abuse of authority d. The woman is under 12 or is demented

CRIMINAL LAW II 164 K notes 3. Ignominy (think: full view of relatives) 4. Priests and Nuns (no disrespect meant) 5. Below 7 6. Venereal diseases (HIV/AIDS/STDs) 7. Law Enforcement/Prison 8. Mutilation/Disability 9. Pregnancy 10. Mental Deficiency Q: May a woman commit rape? Yes Q: May a woman be criminally liable for rape under the 1 st manner (sexual intercourse) as a principal by inducement? Yes Q: By indispensible cooperation? Yes Q: How about as a principal by direct participation? Yes, but ONLY if there is a conspiracy Q: As an accomplice or accessory? Yes Q: Under the 1st manner of committing rape, must there be sexual intercourse? Yes, else only acts of lewdness are being performed and the crime is therefore acts of lasciviousness, not rape Q: What is meant by ‘carnal knowledge’? (anybody who can’t answer this shouldn’t be in law school :P – kimi) Q: In the event that force is used, what degree of resistance must be put up by the offended party? The same degree she would employ had she been fighting for her life *NB: Remember though, that in cases where the force is overwhelming and resistance would have been futile (think: sorry for the graphic illustration, but picture a scenario of gang rape with guns thrown in for good measure), the law does not require that the woman should have resisted, much less resisted strongly – ‘it is not necessary that she should have resisted up to the point of death’

Q: Suppose the woman did not resist, but was merely reluctant. Is the man liable? No Q: Suppose some form of drug was placed in an unwilling woman’s drink, and as a result of drinking it, her sexual appetites were aroused. The act was consummated. Is the man liable? Yes, the man employed fraudulent machination Q: Suppose a man had sex with a deaf-mute woman. May it be considered rape? Not in the absence of any proof that the woman was an imbecile Q: Suppose a man raped a feeble-minded woman who was not completely deprived of reason. Is he liable? Yes, deprivation of reason does not have to be complete – mental deficiency is sufficient

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Q: In rape through force and intimidation, is it necessary that there be full penetration? No, partial penetration is sufficient

CRIMINAL LAW II 165 K notes Q: Suppose an unconscious girl woke up to find a man on top of her and she did not offer any resistance. Is the man liable? It depends – -If there was already partial penetration, resistance is unnecessary, the crime has been consummated, and the man is liable -If there was no penetration yet, and she did not resist, the man is not liable Q: When rape is committed by means of fraudulent machination or grave abuse of authority, is it necessary that there be force, threat or intimidation No Q: So the woman may actually consent to the crime? Yes, but her consent would have been obtained fraudulently and does not serve to mitigate or justify the crime Q: Suppose a man beat a woman unconscious before having carnal knowledge of her, is he liable? Under what manner of commission? Yes, he is liable under the 2nd manner Q: Suppose he administered narcotics to the woman He is liable under the 2nd manner Q: Suppose your boyfriend picked you up for dinner, but instead of driving to the restaurant, he drove to a secluded place and committed the act against you. Is he liable? How? Yes, he is liable by employing fraudulent machination Q: Suppose that by virtue of a promise made by your boyfriend, you agreed to have sexual intercourse. When you found out you were pregnant, he disappeared. Is he liable? What crime did he commit? Yes, he is liable for rape through fraudulent machination *NB: Remember persons? Yeah, the Gasheem Shokat Baksh case - breach of promise to marry is not actionable under civil law, except with respect to material costs incurred, but under criminal law, a promise to marry which resulted in a woman’s consent to sexual intercourse may be actionable if it can be proven that the promise was fraudulently madeand was the actual reason for the woman’s consent–kimi, thinking aloud while paraphrasing the Great A

*NB: This, my friends, is statutory rape. Consent and the involvement of profit are immaterial. The law seeks to protect the victim, and assumes that at this age, any decision made by the child – even if it was made willingly – to engage in the sexual act does not exonerate the offender one bit –kimi Q: How is sexual assault committed? *NB: see table above Q: May a wife be raped by her husband? Yes – the fact that they were married at the time of the commission of the act does not mitigate the man’s liability *NB: the old doctrine – replaced now by RA 8353 – was that a husband and a wife shared one and the same personality, so that it was not possible for a husband to, in effect, rape himself. Still older doctrines contended that the woman’s act of marrying the man was consent for all

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Q: Suppose that the offended party was 11 years, 11 months, and 29 days old at the time of the commission of the offense, and the accused paid for her willing services. Is this rape? Yes

CRIMINAL LAW II 166 K notes future sexual intercourse encounters. Kudos to the acumen of the new rape law and the expanded sphere of protection now granted to married women :) --kimi Q: Suppose that after a forced sexual encounter, the husband and wife again had intercourse, but this time, there was willing consent on the part of the woman. What is the legal effect, if any, to the previous act of rape, or even to the criminal case filed against the husband? The subsequent act shall be deemed as forgiveness, and it shall extinguish the criminal action against the husband, provided that the marriage is not void ab initio Q: What is the effect of the marriage of the offended party to the offender in rape cases? The criminal action shall be extinguished, or the penalty imposed, assuming that the action has already been decided against the offender; PROVIDED that the marriage is VALID. *NB: this is important! According to the book, marriage ‘extinguishes the criminal action’ but only with respect to the principal and not the accomplices and accessories; apparently, this means that only the offender who marries the victim is benefited by the marriage. Atty. A however, draws attention to the words ‘shall extinguish the criminal action’ – which logically means that ALL those impleaded in the action shall also be benefited – partial extinction of the action with respect to the impleaded parties is not stated in the law (amazed, aren’t ya? I was too, the professor’s logic is impeccable –kimi)

NOTES: PAR.1 RAPE THROUGH SEXUAL INTERCOURSE - Absence of sperm does not negate rape (what is controlling is penetration – whether partial or full – not emission)

PAR.2 RAPE THROUGH SEXUAL ASSAULT - Contemplates a violation of the body’s orifices (which includes penetration by a finger)

- Consummation: touching of the labias by the penis, not merely epidermal contact

*Rape does not have a frustrated stage – partial penetration already consummates the crime *Rape with Homicide is a Special Complex Crime *As far as multiple rape goes, the number of times the act was committed is the same as the number of counts of rape for which the accused is/are liable

*Admissible evidence in rape: 1. Any overt physical act manifesting resistance in any degree 2. Situations rendering the offended party incapable of giving consent 3. The uncorroborated testimony of the victim, but the same must be conclusive, logical and probable

1.

Force or intimidation

RE: CIRCUMSTANCES PRESENT DURING RAPE A verbal refusal alone is not sufficient, there must be physical struggle The force exerted on the victim need not be irresistible, so long as it brings about the desired result of the offender The TEST is whether the threat or intimidation produces a reasonable fear in the victim’s mind that

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*When homicide is committed NOT by reason or on the occasion of the rape, there are 2 separate crimes, not the special complex crime of rape with homicide

CRIMINAL LAW II 167 K notes resistance or failure to yield to the desires of the accused would result in the threat being carried out Where resistance would be futile, offering none at all does not amount to consent The law does not imposed upon a rape victim the burden of proving resistance In intimidation, the moral ascendancy of influence of the offender may substitute for the element of physical force (i.e.: fathers against their daughters); and when the offender has ascendancy, it isn’t necessary that the victim puts up resistance 2. Deprivation of Reason

The victim has no will, or has an impaired will The deprivation doesn’t have to be complete

3. Fraudulent Machination or Grave Abuse of Authority

Fraudulent machination may take the form of insidious words used in order to consummate the crime

4. Statutory Rape

When the girl is demented or is under 12 years of age, although she may have consented to the act This applies, even though the victim may have been a prostitute The law does not consider this kind of consent voluntary The character of the offended woman is immaterial in rape *the important thing to note about this is that the law places full liability upon the accused and specifically denies to him particular defences (i.e.: consent, assailing the character of the offended party)

SECTION ONE – ILLEGAL DETENTION

ART.267 KIDNAPPING AND SERIOUS ILLEGAL DETENTION Q: How is this committed? 1. The offender is a private individual 2. He kidnaps/detains another person, or in any other manner deprives the latter of his liberty 3. The act of detention/kidnapping must be illegal 4. In the commission of the offense, any of the following circumstances is present:

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CHAPTER ONE CRIMES AGAINST LIBERTY

CRIMINAL LAW II 168 K notes a. The kidnapping/detention lasts more than 3 days b. It is committed simulating public authority c. Any serious physical injuries are inflicted upon the person kidnapped or detained; or threats to kill him are made d. The person kidnapped/detained is a minor, a female or a public officer Q: When is a person ‘detained’? When he is illegally deprived of his liberty Q: Is it necessary that there be physical deprivation of liberty? No *NB: ‘liberty’ as contemplated by this provision is not restricted to physical locomotion; moral compulsion may also be considered a form of deprivation of liberty (think: threatening a person) Q: Suppose the victim could get out but he chose to stay within the detention area for security reasons. Is this illegal detention? No Q: What are the circumstances that must attend the detention, for it to be considered illegal? *see: element #4 Q: Suppose the detention lasted for only 24hrs but the detainee was a minor. Is the accused liable? Yes – The circumstances need not concur (see: wording, ‘any of the following instances… xxx’) Q: The person detained was a 25-year-old woman, and she was detained for only 2 days. Is the accused liable? Yes Q: Same facts as the previous question, except that the victim was a barangay tanod. Is the accused liable? Yes Q: Give an example of illegal detention committed by simulating public authority Q: Suppose that the infliction of physical injuries was merely incidental, is the accused liable? Yes – the law makes no distinction as to the manner of infliction of the injuries

Q: Suppose you were courting a woman but she neglected your proposal. You kidnapped her sister, and informed her that her sister would only be released if she accepted your courtship. Is this a crime? Yes, the acts constitute kidnapping, and were committed for a consideration *NB: apparently then, ‘consideration’ is not limited to pecuniary or material benefit Q: Suppose A owes X Php 50,000. A could not pay his debt, so he kidnapped his own mother instead and said that he would only release her if she would give him the money to pay off his debt to X. Is this kidnapping for ransom? Yes, notwithstanding that the money was legally due to X Q: A borrowed a car but refused to return it to X. X kidnapped A’s brother with the condition that the brother would only be released if the car was returned. A complied, and X released the brother. What crime was committed?

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Q: What does ‘ransom’ mean? Money or price or consideration paid or demanded for redemption of a captured person/s; payment made toward the view of releasing a person from captivity

CRIMINAL LAW II 169 K notes Kidnapping for ransom (with the car as the consideration) Q: Suppose A, B and C kidnapped X and brought him to the next town. That same night, they killed him. What crime was committed? Murder – there was no indication of A, B and C’s intention to detain X; Kidnapping was merely incidental to murder Q: Suppose X was kidnapped, brought to the neighbouring town and a ransom for his release was demanded. The ransom was not offered so X was killed. What crime was committed? The special complex crime of Kidnapping with Homicide Q: How do you know whether the crime was kidnapping or murder or the special complex crime of kidnapping with homicide/murder? By ascertaining specific intent Q: What circumstance qualifies the offense? Demand for ransom *NB: note that the provision imposes reclusion perpetua (formerly death) where the kidnapping/ detention was committed for the purpose of extorting ransom; even if none of the 4 circumstances enumerated in par.1 were present during the commission of the offense Q: Is there any special aggravating circumstance? What is it? Yes – when the victim is killed or dies as a consequence of the detention; or is raped or subjected to torture or dehumanizing acts

NOTES: *If the offender is a public officer, the crime is arbitrary detention; provided that the officer had a duty to detain a person *As long as the crime was committed for the purpose of extorting ransom, actual demand for ransom is not necessary *The accused is not liable when there is a lack of motive to resort to kidnapping *Two things make up ‘deprivation of liberty’: (a) actual or physical confinement; or (b) restrictions (not necessarily physical) place upon the detainee *The restraint need not be permanent in order for criminal liability to attach *Purpose or motive is NOT material when any of the circumstances in par.1 is present

*Where the victim is taken from one place to another for the purpose of killing him, the crime is murder *Specific intent is determinative of the crime (think: to kidnap or to kill?) *The penalty for the crime is not reduced by the circumstance of voluntary release by the captors as a result of non-attainment of their purposes *Conspiracy to extort ransom makes all the conspirators liable under par.2, art.267, including those who did not take any part of the money *There is NO complex crime of ‘illegal detention with rape’ – what the law provides for is the special complex crime of ‘serious illegal detention/kidnapping with rape’ – there’s a difference between the two, because the law (art.48) does not allow for ‘rape with illegal detention’ – there is no single act

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*See last paragraph of art.267 for the definition of the special complex crime of kidnapping with murder

CRIMINAL LAW II 170 K notes resulting in 2 or more grave/less grave felonies; nor is illegal detention a necessary means for committing rape ILLEGAL DETENTION To deprive a person of his liberty – whether physically or otherwise

ARBITRARY DETENTION To detain a person without any legal ground

Re: Character of Offender

The offender is a private individual (or a public officer not vested with authority to detain a person)

The offender is a public officer with a duty to detain persons

Re: Classification of the Crime

Crime against personal liberty

Crime against the fundamental law of the State

RE: Purpose of Commission

ART.268 SLIGHT ILLEGAL DETENTION Q: How is this committed? 1. The offender is a private individual 2. He kidnaps or detains another or in any manner deprives him of his liberty 3. The act of kidnapping/detention is illegal 4. The crime is committed without any of the circumstances under art.267 Q: How is this different from serious illegal detention? 1. Slight illegal detention is committed without the circumstances involved in serious illegal detention 2. Slight illegal detention may be MITIGATED by – a. Voluntary release within 3 days from the commencement of detention; without having attained the captors’ intended purpose; AND b. Before the institution of criminal proceedings *NB: When this privileged mitigating circumstance is present, the liability of the captors is mitigated, and the penalty is lowered by 1 degree; BUT in order for this to operate, it must be shown that the offender was in the position to prolong the detention and ALL the requisites must concur, FURTHERMORE, this circumstance is NOT mitigating if the victim is a woman

Q: How is this committed? 1. The offender arrests or detains another person 2. The offender’s purpose is to deliver him to the proper authorities 3. The arrest or detention is NOT authorized by law; or there is no reasonable ground therefor Q: Distinguish this from arbitrary detention; and from serious or slight illegal detention


SERIOUS ILLEGAL DETENTION Kidnapping or Detention without legal grounds under any of the following circumstances:

SLIGHT ILLEGAL DETENTION Committed without the 4 circumstances in serious illegal detention

UNLAWFUL ARREST Involves the arrest/detention of another person

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ART.269 UNLAWFUL ARREST


RE: Purpose

Deprivation of Liberty; coupled with a demand for ransom in the case of kidnapping for ransom (which qualifies the offense)

Deprivation of liberty

Delivery of the detained person to proper authorities (without legal authority to do so; or without reasonable ground)

RE: Character of Offender

Offender is a private individual or a public officer not vested with authority to detain a person

Offender is a private individual

Offender may be any person – private or public (in which case, the public offender had no authority to arrest/detain and did not act in official capacity)

RE: Voluntary Release of detained person by the offender (as a result of nonattainment of purpose)

Not Mitigating

Mitigating; except when the offended party is a woman

Not mitigating

**notes

When the circumstances in par.1 of art.267 are present (see: manner of commission, (a), (b), (c) and (d) in first column above), motive or purpose is immaterial

The same penalty (reclusion temporal) for the principal offender shall be incurred by anyone who shall furnish the place for the perpetration of the crime

No period of detention is fixed by the law, but motive is controlling

SECTION TWO – KIDNAPPING OF MINORS *NB: In connection with the concepts of ‘custody’ and ‘parents’ and ‘minors’, it would be very prudent to give your Persons notes on parental authority a once-over

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a. The kidnapping/ detention lasts more than 3 days b. It is committed simulating public authority c. Any serious physical injuries are inflicted upon the person kidnapped or detained; or threats to kill him are made d. The person kidnapped/detaine d is a minor, a female or a public officer


ART.270 KIDNAPPING AND FAILURE TO RETURN A MINOR Q: How is this committed? 1. The offender is entrusted with the custody of a minor (*NB: pursuant to the new Family Code, a minor is one under 18 years of age; this provision and its definition of minor, i.e. ‘over or under 7 but less than 21’ has therefore been amended) 2. He deliberately fails to restore the said minor to his parents/guardians Q: May the parents be criminally liable for this crime? Yes – if one is granted custody of the child, and the offender failed to return that child to the legally recognized parent Q: Suppose a husband and wife were legally separated. Custody of their child was awarded to them on a scheduled basis – The wife was granted custody during weekdays (Mondays through Fridays), with the husband having been given custody over the weekends. During one such weekend, the husband brought the child to the countryside, where they stayed for 5 days. Is the husband liable? Yes Q: Suppose that in a judicial proceeding, the mother was deprived of custody over her children and the family court awarded custody to the DSWD. The mother paid them a visit, but took them with her when she left. Is she liable? Yes

NOTES: *What is punishable is the deliberate failure to restore the minor to his parent/guardian *The qualifying and essential element to this crime is the requirement that the offender must have been entrusted with the custody of the child *It isn’t necessary that the purpose is to permanently separate the minor from his parent/guardian – temporary separation, so long as the elements concur – is punishable

ART.271 INDUCING A MINOR TO ABANDON HIS HOME

Q: Give an example Q: Suppose the accused assembled some minors in the province and regaled them with stories of Manila. The minors were immensely amused and when the accused was about to leave that evening, 3 of them approached him and requested to tag along. The accused agreed and brought the minors to Manila. Is he liable? No *NB: The inducement should be done with malicious intent/ a deliberate purpose to cause harm. If the minor in question chose to abandon his home of his own free will, no crime is committed

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Q: How is this committed? 1. A minor is living in the home of his parents/guardians or the person (*NB: this includes juridical persons like the DSWD) entrusted with his custody 2. The offender induces said minor to abandon that home

CRIMINAL LAW II 173 K notes Q: Same facts, except that the accused persuaded the minors to leave their homes and travel to Manila because there would be lucrative jobs waiting for them there. The minors agreed, and were taken to the city. Is the accused liable? Yes

NOTES: *The inducement must be actual, with criminal intent, and determined by a will to cause damage *’To induce’ = to influence, to prevail on; to move by persuasion, or to incite by motives *What constitutes the crime is the act of inducing a minor to abandon his home, it isn’t necessary that the minor actually does abandon it *The minor shouldn’t leave his home of his own free will

SECTION THREE – SLAVERY AND SERVITUDE

ART.272 SLAVERY Q: How is this committed? 1. The offender purchases, sells, kidnaps or detains a human being 2. The purpose of the offender is to enslave such a human being Q: What qualifies the offense? If the offender’s purpose is to assign the victim to some immoral traffic (i.e.: prostitution)

ART.273 EXPLOITATION OF CHILD LABOUR Q: How is this committed? 1. The offender retains a minor in his service 2. The retention is against the will of the minor 3. It is done under the pretext of reimbursing himself of a debt incurred by an ascendant, guardian, or person entrusted with the custody of such minor

*In line with the constitutional principle that no person shall be imprisoned by virtue of debt, this provision makes it clear that even under criminal law, perhaps most especially under it, indebtedness is not a ground for detaining a person

ART.274 SERVICES RENDERED UNDER COMPULSION IN PAYMENT OF DEBT Q: How is this committed? 1. The offender compels a debtor to work for him, either as a household servant or farm labourer 2. It is against the debtor’s will 3. The purpose is to require or enforce the payment of debt

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NOTES:


CHAPTER TWO CRIMES AGAINST SECURITY SECTION ONE – ABANDONMENT OF HELPLESS PERSONS AND EXPLOITATION OF MINORS

Art.275 ABANDONMENT OF PERSONS IN DANGER AND ABONDONMENT OF ONE’S OWN VICTIM Q: What are the punishable acts? 1. 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 **ELEMENTS: a. The place is NOT inhabited b. The accused found there a wounded person or one in danger of dying c. The accused can render assistance without danger to himself d. The accused fails to render that assistance 2. Failing to help or render assistance to another whom the offender accidentally wounded or injured 3. Failing to deliver a child under 7 years of age whom the offender has found abandoned, to the authorities or to his family; or failing to take him to a safe place Q: Suppose the person the accused found did not have a wound but simply fainted and lost consciousness. The accused left him there. Is he liable? Yes Q: Suppose the person was unconscious due to starvation. The accused failed to help. Is he liable? Yes Q: Is it necessary that the minor contemplated by this provision be wounded? No, it is sufficient that the minor was found in a dangerous or unsafe place and the accused failed to return him to his parents or bring him to safety Q: Suppose the accused left the minor there because he believed that by the looks of the minor, he was old enough to fend for himself? The accused is liable – it is immaterial that the offender did not know the actual age of the child

Q: How is this committed? 1. The offender has custody of a child 2. The child is under 7 years old 3. He abandons such a child 4. He has no intent to kill the child when he abandoned that child Q: Suppose the abandoned child later died. May the accused be held liable for homicide/murder? No – intent to kill is NOT presumed from the child’s death – this rule applies to crimes against persons; the provision provides for a particular and specific penalty (prision correccional in its medium to maximum periods) should the child die as a result of the abandonment Q: What circumstances qualify the crime? 1. Death of the child; or

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ART.276 ABANDONING A MINOR

CRIMINAL LAW II 175 K notes 2. Danger to the minor’s life

NOTES *If the offender happens to be a parent of the child, civil law imposes the penalty of deprivation of parental authority

ART.277 ABANDONMENT OF MINOR BY PERSON ENTRUSTED WITH HIS CUSTODY; INDIFFERENCE OF PARENTS Q: What are the punishable acts? 1. Delivering a minor to a public institution or to other persons without the consent of the person who entrusted the minor to the offender’s care; or without the consent of proper authorities **ELEMENTS: a. The offender has charge of the rearing or education of a minor b. He delivers said minor to a public institution or other persons c. The one who entrusted the child to the offender has not consented to such an act; or the proper authorities have not consented to it 2. Neglect by the offender of his own children by not giving them the education which their station in life requires and financial condition permits **ELEMENTS: a. The offender is a parent b. He neglects his own children by not giving them education c. His station in life requires such education; and his financial condition permits it *NB: Failure to provide education must be due to a deliberate desire by the parent to evade such an obligation

Q: What are the punishable acts? 1. Causing any boy/girl under 16 to perform any dangerous feat of balancing, physical strength ot contortion, the offender being any person 2. Employing children under 16 who are not the children/descendants of the offender in exhibitions of acrobatics, gymnastics, rope-walking, diving, wild animal-taming; the offender being an acrobat, etc or circus manager, or person engaged in a similar calling 3. Employing any descendant under 12 in dangerous exhibitions enumerated in the next preceding paragraph, the offender being engaged in any of the said callings 4. Delivering a child under 16 gratuitously to any person following any of the callings enumerated in par.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 5. Inducing any child under 16 to abandon the home of his ascendants, guardians, curators, or teachers to follow any person engaged in any of the callings mentioned in par.2 or to accompany any habitual vagrant/beggar; the offender being any person *NB: aide-mémoire – 1. Any person inducing a child below 16 to perform dangerous gymnastics 2. A person involved in the circus (think: gymnast, acrobat, animal tamer, manager… etc) employing a child below 16 for the same calling 3. Any ascendant employing a descendant in the circus (rofl)

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ART.278 EXPLOITATION OF MINORS

CRIMINAL LAW II 176 K notes 4. Person with parental authority (parents, teachers… etc) delivering the child to a vagrant/beggar 5. Any person inducing a child below 16 to run away with a vagrant/beggar Q: What qualifies the offense? Delivery of the child for any of those purposes, in consideration of any price, compensation or promise

ART.279 ADDITIONAL PENALTIES FOR OTHER OFFENSES *The imposition of the penalties described in the preceding articles shall not prevent the imposition upon the same person of the penalty provided for any other felonies defined and punished by the Code

SECTION TWO – TRESPASS TO DWELLING

Art.280 QUALIFIED TRESPASS TO DWELLING Q: How is this committed? 1. The offender is a private person 2. He enters the dwelling of another 3. Such entrance is against the owner’s will Q: Suppose the offender was a public officer, what crime was committed? Violation of Domicile Q: Distinguish this from violation of domicile -There is only one manner of committing qualified trespass to dwelling -The character of the offender in qualified trespass to dwelling is private Q: Suppose the accused entered through the back door, which was open at that time. The owner saw him a few moments later as he was walking through the interior of the house, and asked him to leave. Is he liable? No, his entry was not against the will of the owner – the back door was open

Q: What qualifies the offense? The use of violence or intimidation to gain entry

NOTES: *The definition of ‘dwelling’ depends upon the use the building is put to; it includes a room when it is occupied by another person *Lack of permission does not amount to prohibition *All members of a household are generally presumed to have authority to extend an invitation to enter

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Q: What are the possible defences in qualified trespass to dwelling? 1. Prevention of serious harm to himself, to the occupants of the dwelling, or to a 3rd person 2. Entry for the purpose of rendering some service to humanity 3. Entry into cafes, taverns, inns and other public houses while the same are still open (*NB: ‘I see no sense in this, these are not dwellings’ –Atty. A)

CRIMINAL LAW II 177 K notes *For reference and comparison, see notes under Violation of Domicile *Prohibition must be in existence prior to, or at the time of entry *Violence of intimidation as qualifying circumstances may take place immediately after entry *Prohibition is not necessary when violence or intimidation is employed *Trespass may be committed by the owner of the dwelling against the actual occupant (think: nosy landlords and landladies :P –kimi)

ART.281 OTHER FORMS OF TRESPASS Q: How is this committed? 1. The offender enters the closed premises or fenced estate of another 2. Entrance is made while the area is uninhabited 3. The prohibition to enter is manifest 4. The trespasser has not secured the owner or caretaker’s permission

SECTION THREE – THREATS AND COERCION

ART.282 GRAVE THREATS Q: What are the punishable acts? 1. Threatening another with the infliction upon his person, honour or property or that of his family of any wrong amounting to a crime and demanding money or imposing any other condition, even though (the condition) is not unlawful and the offender succeeded in attaining his purpose 2. Making such a threat without the offender attaining his purpose 3. Threatening another with the infliction upon his person, honour or property of that of his family of any wrong amounting to a crime, the threat not being subject to a condition *NB: Table for ya :) ELEMENTS OF GRAVE THREATS THAT ARE NOT SUBJECT TO A CONDITION 1. The offender threatens another person … of any wrong 2. Such wrong amounts to a crime 3. The threat is not subject to any condition

Q: Suppose the threat was made and relayed only to the person 3hrs after its making. Is the accused liable? Yes Q: Suppose a threat is used as a means for committing another crime. What is the legal effect of that other crime?

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ELEMENTS OF GRAVE THREATS WHERE THE OFFENDER ATTAINED HIS PURPOSE 1. The offender threatens another with the infliction upon the latter’s person, honour, or property (or those of his family) of any wrong 2. Such wrong amounts to a crime 3. There is a demand for money or a condition is imposed, even though the condition may not be unlawful 4. Mission Accomplished – Offender attains his purpose

CRIMINAL LAW II 178 K notes The other crime absorbs the threat Q: When is there a grave threat? When there is intimidation or the promise of some future harm or injury, with or without a condition or demand for money

NOTES: *The offender in grave threats does not demand delivery of money on the spot, else the crime is robbery with intimidation *If the threat is not subject to a condition, the penalty does not depend on the crime threatened to be committed, but is fixed by law (arresto mayor and a fine of Php 500) *Grave threat is consummated as soon as the threats come to the knowledge of the person threatened; it is not necessary that the offended party is present at the time the threats were made *Threats made in connection with the commission of other crimes are absorbed by the latter

ART.283 LIGHT THREATS Q: How is this committed? 1. The offender makes a threat to commit a wrong 2. The threat does not constitute a crime 3. There is a demand for money or that other conditions are imposed, even though the conditions may not be unlawful 4. The offender has either attained his purpose or not Q: Distinguish this from grave threats Light threats is committed in the same manner as grave threats, except that the act threatened should not be a crime Q: Give an example Q: ‘If you do not lend me my book, I will be forced to cheat’. What crime was committed here? Light threats

Q: ‘If you do not allow me to borrow your book, I will not pay you my debt’. What crime? Light threats Q: Is there a wrong involved? Yes, but it does not amount to a crime

ART.284 BOND FOR GOOD BEHAVIOR *In Articles 282 and 283, the person making the threats shall be required to secure a bond for good behaviour in order not to molest the threatened person *Failure to furnish a bond for good behaviour shall be punished with destierro

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Q: ‘If you do not allow me to use your book for cheating, I will sell the book’. What crime? Grave threats – the selling of the book here amounts to estafa


Q: Differentiate this from Bond to Keep the Peace BOND FOR GOOD BEHAVIOR Applies only to light/grave threats

BOND TO KEEP THE PEACE General Application

Re: EFFECT OF FAILURE TO FURNISH THE BOND

Destierro

Detention for not more than 6 months for grave offenses; not more than 30 days for light offenses

Re: PURPOSE

Localized – To prevent further molestation of the offended party

General – To prevent disturbances of public tranquillity

Re: APPLICATION TO CRIMES

ART.285 OTHER LIGHT THREATS Q: What are the other light threats? 1. Threatening another with a weapon or by drawing such weapon in a quarrel, unless it be in lawful self-defence (see: art.11 for the requisites of lawful self-defence) 2. Orally threatening another in the heat of anger with some harm constituting a crime without persisting on the idea involved in the threat 3. Orally threatening to do another any harm not constituting a felony

NOTES *Threats which ordinarily are grave threats, if made in the heat of anger, may be considered light threats

ART.286 GRAVE COERCIONS

Q: How is grave coercion committed? 1. A person prevented another from doing something not prohibited by law; or compelled someone to do something against his will, be it right or wrong 2. The prevention/compulsion is effect through violence, threats or intimidation 3. The person that restrained the will and liberty of another did not have the authority of law or the right to do so Q: How is this different from grave threats? -In grave threats, there is mere employment of fear; and the act was not intended to commit the 2 modes of coercion (i.e.: forcing a person to do something he doesn’t want to do; preventing him from doing something lawful); the violence here is not actual, merely futuristic -In grave coercion, the intimidation employed goes hand in hand with compulsion or prevention of an individual’s will; the violence here is actually employed

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Q: What are the punishable acts? 1. Preventing another by means of violence, threats, or intimidation, from doing something not prohibited by law 2. Compelling another by means of violence, threats or intimidation to do something against his will, whether it (the forced act) be right or wrong


Q: If the essence of grave threats is intimidation, what is the essence of grave coercion? Violent compulsion (i.e.: using force to compel someone to do/not do something) Q: A policeman, through violence, prevented X from joining the NPA. Is he liable? No, he was justified Q: Several armed men surrounded the farm in a certain area. The farmers did not leave their houses for fear of danger. What crime did the armed men commit? Grave threats Q: You rode a taxi, but instead of taking you to your desired destination, the driver brought you somewhere else despite your efforts to stop him. What crime did he commit? He did not commit any crime Q: What circumstances qualify the offense? 1. If the coercion is committed in violation of the exercise of the right of suffrage 2. If the coercion is committed to compel another to perform any religious act 3. If the coercion is committed to prevent another from performing any religious act

NOTES: *The act of preventing another by force should be made at the time the offended party was doing or was about to do the act to be prevented; if the act was already done when the violence was exerted, the crime is unjust vexation *Compelling another to do something includes the offender’s act of doing it himself while subjecting another to his will *When the complainant is in actual possession of a thing, even if he has no right to that possession, compelling him by means of violence to give it up – even if done by the owner of the thing himself – is grave coercion *the force or violence must be immediate, actual or imminent *Even if the offended party did not accede to the purpose of the coercion, the offender is still liable

Q: How is this committed? 1. The offender must be a creditor 2. He seizes anything belonging to his debtor 3. The seizure of the thing is to be accomplished by means of violence, or a display of material force producing intimidation 4. The purpose of the offender is to apply the same to the payment of the debt Q: Suppose the purpose of the seizure was to sell the properties seized and not to apply it to the debt? Then the crime is robbery (think: intent to gain, possession through force) Q: Distinguish this from services rendered under compulsion in payment of debt LIGHT COERCION

SERVICES RENDERED UNDER COMPULSION IN PAYMENT OF DEBT

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ART.287 LIGHT COERCION

CRIMINAL LAW II 181 K notes RE: Manner of Commission

The offender seizes anything belonging to his debtor through violence or display of material force producing intimidation

The offender compels a debtor to work for him, either as a household servant or farm labourer

RE: Purpose

Application of the seized possessions to the debt

To require or force the payment of debt

Q: Suppose X is indebted to A but he cannot pay; A asked X to work as a janitor in his office as payment for the debt. Is A liable? No – this is neither light coercion nor services rendered under compulsion in payment of debt (see: table above – the facts do not meet the requisites) Q: Distinguish this from exploitation of child labour LIGHT COERCION Art.287 Offender: Creditor

EXPLOITATION OF CHILD LABOUR Art.273 Offender: Any person

Offended party: Debtor

Offended party: Minor


Seizure of any of the debtor’s possessions through violence/material force

Retaining a minor in one’s service against the minor’s will

RE: Purpose

Application of seized possessions to debt

(Pretext of) reimbursing oneself of a debt incurred by an ascendant/guardian/person entrusted with the minor’s custody

RE: Parties concerned

Q: Suppose the act was committed by taking possession through deceit and misrepresentation for the same purpose, what crime was committed? Unjust vexation *NB: unjust vexation includes any human conduct which although not productive of some physical or material harm would however unjustly annoy or vex an innocent person; no violence or intimidation is employed here

ART.288 OTHER SIMILAR COERCIONS – COMPULSORY PURCHASE OF MERCHANDISE AND PAYMENT OF WAGES BY MEANS OF TOKENS ART.289 FORMATION, MAINTENANCE AND PROHIBITION OF COMBINATION OF CAPITAL OR LABOUR THROUGH VIOLENCE AND THREATS NOTES

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Q: Does actual physical violence have to be employed? No


*Arts.288-289 are now covered by the Labour Code *The Labour Code requires payment in currency *Salary refers to the fruits of one’s labour, a person has a right to it and nobody can interfere with how that salary is to be disposed of *RE: Art.289 – The Labour Code grants the right to unionize; the essence of a union being that there is strength in numbers (as opposed to a single employee vs. his employer); management of the prerogatives of the union is vested solely in the employees themselves; the employer is considered an interloper and may be held liable for unfair labour practice. Mere inquiry into membership may be considered a form of interference –Atty. A

CHAPTER THREE DISCOVERY AND REVELATION OF SECRETS ART.290 DISCOVERING SECRETS THROUGH SEIZURE OF CORRESPONDENCE Q: How is this committed? 1. The offender is a private individual or even a public officer not in the exercise of his official functions 2. He seizes the papers or letters of another 3. The purpose is to discover the secrets of another person 4. The offender is informed of the contents of the papers or letters seized Q: What qualifies the offense? Revelation of the contents of those papers/letters to a 3rd person Q: Who are excluded from the contemplation of art.290? -parents -guardians -persons entrusted with the custody of minors with respect to papers or letters -spouses

Q: How is this committed? 1. The offender is a manager, employee or servant 2. He learns the secrets of his principal or master in such capacity 3. He reveals such secrets Q: Is damage to the manager or employer necessary? No

ART.292 REVELATION OF INDIVIDUAL SECRETS Q: How is this committed?

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ART.291 REVEALING SECRETS WITH ABUSE OF OFFICE


The offender is a person in charge, employee or workman of a manufacturing or industrial establishment 2. The manufacturing/industrial establishment has a secret of the industry which the offender has learned 3. The offender reveals such secrets 4. Prejudice is caused to the owner

TITLE TEN CRIMES AGAINST PROPERTY CHAPTER ONE ROBBERY IN GENERAL ART.293 WHO ARE GUILTY OF ROBBERY Q: What is robbery? The taking of personal property belonging to another, with intent to gain, by means of violence against, or intimidation of any person or using force upon anything Q: What are the classifications of robbery? 1. Robbery with violence against, or intimidation of persons 2. Robbery by the use of force upon things Q: How is robbery in general committed? There is – 1. Personal property belonging to another 2. Unlawful taking of that property 3. The taking is with intent to gain 4. Violence or Intimidation of any person; or force upon anything Q: Suppose you saw X hide a kilo of shabu; he placed the article in his closet and locked the same. You thought that the shabu would fetch a lucrative price on the streets so you broke the latch on his closet and took it. Did you commit Robbery? Yes – prohibited articles may also the subject matter of robbery

Q: When must the violence/force/intimidation be present for the crime to be robbery? The violence/force/intimidation must be present from the start of the act up to the asportation or taking; the violence or intimidation must be present before the taking of the personal property is complete *NB: the application of robbery depends on what point the violence/force was exerted, note ‘by reason of or on the occasion thereof… xxx’ Q: When is the crime of robbery consummated? ROBBERY WITH VIOLENCE AGAINST/ INTIMIDATION OF PERSONS From the moment the offender gains possession of the thing, even if the culprit has had no opportunity to dispose of the same

ROBBERY WITH FORCE UPON THINGS The thing must be taken out of the building to consummate the crime

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Q: What kind of robbery did you commit? Robbery with force upon things


Q: What is meant by ‘taking’? Depriving the offended party of ownership of the thing taken with the character of permanency Q: Is intent to gain presumed? Yes Q: Suppose intent to gain is disproved; what crime was committed? Grave coercion, provided that violence was employed Q: Does the intimidation have to refer to the threat of bodily harm? No, it may take other forms Q: Give an example

SECTION ONE – ROBBERY WITH VIOLENCE AGAINST OR INTIMIDATION OF PERSONS

ART.294 ROBBERY WITH VIOLENCE AGAINST OR INTIMIDATION OF PERSONS – PENALTIES

Q: Are the crimes here considered complex crimes under art.48? No, they are special complex crimes – specifically provided for by art.294 *NB: these are special complex crimes because the common crimes here must be committed in the course, or because of the robbery; they aren’t normal complex crimes under art.48 Q: Under art.294, when is robbery complexed; and what crimes may it be complexed with? When the violence results in – 1. Homicide 2. Rape 3. Intentional mutilation; or 4. Any of the serious physical injuries in paragraphs 1 and 2 of art.263

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Q: When is robbery with violence against or intimidation of persons committed? 1. When, by reason or on occasion of the robbery, the crime of Homicide is committed 2. When the robbery is accompanied by rape or intentional mutilation or arson 3. When by reason or on occasion of such robbery, any of the physical injuries resulting in sanity, 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/smell; or the loss of an eye, hand, foot, arm or leg; or the use of any such member; or incapacity for work in which the injured person is theretofore habitually engaged is inflicted 5. If the violence/intimidation employed in the commission of the robbery is carried to a degree clearly unnecessary for the commission of the offense 6. When in the course of its execution, the offense shall have inflicted upon any person not responsible for the commission of the robbery any of the physical injuries in consequence of which the injured person becomes deformed or loses any other member of his body; or loses the use thereof; or becomes ill/incapacitated for work for more than 90 days or the injured person becomes ill/incapacitated for labour 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

CRIMINAL LAW II 185 K notes *The taking of personal property is robbery complexed with any of these crimes, even if the taking was already complete when the violence was employed by the offender *Here’s the trick: when the original plan was robbery, and these crimes are committed because of, or during that robbery – it’s a special complex crime Q: A, B, and C decided to rob X’s house; they say X in front of a nearby store. A, B, and C shot him there, after which, they proceeded to X’s house to commit robbery; what crime did they commit? Robbery with Homicide (homicide by reason of the robbery – complexed) Q: Suppose a robbery had already been committed. It was reported to the police; and while the police were in pursuit of the robbers, a shootout took place in the nearby province. 2 policemen and 3 robbers were killed. What crime was committed? Robbery with Homicide Q: In the course of the robbery, one offender stepped on a 48-hour child. What crime did he commit? Robbery with Homicide *NB: ‘Homicide’ here is used in its general sense Q: With regards to the liability of persons when there is a conspiracy; suppose A, B, and C conspired to rob X’s house. C took X’s wife outside of the house and raped her. What are the individual liabilities of the offenders? -A and B are liable for simple robbery -C is liable for the special complex crime of robbery with rape (because A and B were not present when he raped the woman, and were not in a position to prevent him from doing so – he acted independently of their conspiracy for robbery

NOTES *Table for ya :)

When committed in a dwelling, robbery with homicide does NOT require that robbery with force upon things is first committed This need not be committed in a building, either Intent to take personal property belonging to another with intent to gain must precede the killing Killing a person to escape after the commission of robbery is robbery with homicide The crime is still robbery with homicide, even if the

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ROBBERY WITH VIOLENCE AGAINST, OR INTIMIDATION OF PERSONS ART.294 Table of Special Complex Crimes Par.1 ‘Homicide’ here includes parricide and murder ROBBERY WITH HOMICIDE ‘Homicide’ is NOT limited to a singular death, multiple deaths are merged in the composite offense of robbery with homicide so long as all the killings were perpetrated by reason or on occasion of the robbery

CRIMINAL LAW II 186 K notes person killed was NOT the person who was robbed All who participated in the robbery as principals are principals in robbery with homicide, unless it clearly appears that they endeavoured to prevent the same Par.2 ROBBERY WITH RAPE

Intent to gain must precede rape When the taking of personal property of a woman is an independent act following defendant’s failure to consummate the rape, there are 2 distinct crimes Additional rapes committed on the same occasion of robbery will NOT increase the penalty When the taking of the property after the rape is NOT with intent to gain (i.e.: mementos or tokens), there is neither theft nor robbery, just plain rape and unjust vexation When rape and homicide coexist with robbery in the commission of the crime, the liability of the accused is for the special complex crime of robbery with homicide, rape being merely aggravating

Par.3 ROBBERY WITH SERIOUS PHYSICAL INJURIES UNDER ART.263, PAR.2

Applies when the serious physical injuries are committed ‘upon any person not responsible for its commission’ (people who aren’t themselves the robbers) If the serious physical injuries were inflicted on a fellow robber, there are 2 distinct offenses: robbery and serious physical injuries

Par.4 ROBBERY WITH UNNECESSARY VIOLENCE AND INTIMIDATION

The violence here need not result in serious physical injuries Violence employed must be unnecessary to the commission of robbery

1.

Any of the physical injuries defined in paragraphs 3 and 4, art.263 was inflicted in the course of the robbery 2. Any of them was inflicted upon any person not responsible for the commission of the robbery Par.5 ROBBERY WITH THE USE OF VIOLENCE AGAINST/ INTIMIDATION OF ANY PERSON *this is not a special complex crime, this is simple

Simple robbery – the use of violence against any person does NOT result in homicide, rape, intentional mutilation or any of the serious physical injuries which may give rise to a special complex crime; when it does result in those

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*REQUISITES OF ROBBERY UNDER THE 2ND CASE OF PAR.4, ART.294

CRIMINAL LAW II 187 K notes robbery

crimes, a special complex crime is committed The violence or intimidation need NOT be present before or at the exact moment when the object is taken, it may enter any time before the owner is finally deprived of his personal property Intimidation exists when the acts executed/ words uttered by the offender are capable of producing fear in the person threatened

ART.295 ROBBERY WITH PHYSICAL INJURIES, COMMITTED IN AN UNINHABITED PLACE AND BY A BAND, OR WITH THE USE OF FIREARM, ON A STREET, ROAD OR ALLEY Q: When is robbery with violence against or intimidation of persons qualified? When robbery is committed – 1. In an uninhabited place 2. By a band 3. By attacking a moving train, street car, motor vehicle, or airship 4. By entering the passengers’ compartments in a train, or in any manner taking the passengers by surprise in the respective conveyance 5. On a street, road, highway, or alley, and the intimidation is made with the use of firearms Q: May these circumstances be offset by ordinary mitigating circumstances? No Q: What is the legal effect of the presence of more than one of these circumstances? Only one will qualify the offense, the rest will serve to aggravate the penalty Q: Do they apply to homicide/rape or serious physical injuries committed with robbery? No

Q: When is there a band? When more than 3 armed malefactors take part in the commission of a robbery Q: Suppose A, B, C and D committed robbery with the use of an unlicensed firearm. What is the legal effect of the firearm on their liabilities? The penalty shall be imposed in the maximum *NB: whenever any of the arms used in the commission of the offense is an unlicensed firearm, the penalty imposed on all malefactors shall be the maximum period of the corresponding penalty provided by law Q: May A, B, C and D also be prosecuted for illegal possession of unlicensed firearm? Yes

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ART.296 DEFINITION OF A BAND AND PENALTY INCURRED BY MEMBERS THEREOF

CRIMINAL LAW II 188 K notes Q: What is the presumption of the law with respect to robbery committed by a band? Any member of a band who is present at the commission of robbery shall be punished as a principal of any of the assaults committed by the band, unless it can be shown that he attempted to prevent the same *NB: Requisites for liability for the acts of other members of the band – 1. The person is a member of the band 2. The band committed robbery 3. Other members of the band committed an assault (or assaults, plural) 4. He did not attempt to prevent the assault

NOTES *When the robbery was not committed by a band, the robber who did not take part in the assault by another isn’t 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 non-participant in the killing is liable only for robbery *When there is conspiracy to commit homicide and robbery, all the conspirators, even if there are less than 4 armed men, are liable for the special complex crime of robbery with homicide *Art.296 is not applicable to principals by induction who were NOT present at the robbery, if the agreement was to commit robbery (and yet homicide happened to be committed) *Proof of conspiracy is not necessary when 4 or more armed persons committed robbery *Members of the band must be present at the time of the robbery, although not necessarily during the assault *Republic Act 8249 considers the use of an unlicensed firearm in murder or homicide merely a special aggravating circumstance, NOT a separate crime *The special aggravating circumstance of the use of unlicensed firearm is NOT applicable to robbery with homicide committed by a band (art.295 does not apply to subdivisions 1 and 2 of art.294)

ART.297 ATTEMPTED AND FRUSTRATED ROBBERY COMMITTED UNDER CERTAIN CIRCUMSTANCES *When by reason or on occasion of an attempted/frustrated robbery, a homicide is committed, the person guilty of such offenses shall be punished by reclusion temporal in its maximum period to reclusion perpetua, unless the homicide committed shall deserve a higher penalty under the provisions of this Code

ART.298 EXECUTION OF DEEDS BY MEANS OF VIOLENCE OR INTIMIDATION

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*The use of a firearm – whether licensed or not – in making the intimidation is a qualifying circumstance when the robbery defined in any of paragraphs 3, 4 and 5 of art.294 is committed on a street, road, highway or alley

CRIMINAL LAW II 189 K notes Q: How is this committed? 1. The offender has intent to defraud another 2. He compels that person to sign, execute or deliver any public instrument or document 3. The compulsion is made by means of violence or intimidation Q: Does the instrument have to be public? Yes Q: What about the document? The document may be private or commercial Q: Suppose the document is void Art.298 does not apply

SECTION TWO – ROBBERY BY THE USE OF FORCE UPON THINGS Q: How is robbery by the use of force upon things committed? When the offender – 1. Entered a house or building by any of the means specified in art.299 or 302; or 2. Even if there was no entrance by any of those means, he broke a wardrobe, chest or any other kind of locked/closed/sealed furniture or receptacle in the house or building; or he took the same away to be broken or forced open outside the building Q: Suppose no entry at all was effected by the accused; and he simply used a long pole to take the article, what crime was committed? Theft *For this kind of robbery, entry is essential – if there is no entry, there is no robbery with force upon things Q: May robbery be committed without the actual use of force on things? Yes, when the entrance is effected through means not intended for egress; by using a fictitious name; or pretending the exercise of public authority; when things need not be broken or forced open Q: A, B, and C used a false key to open the door of their neighbour’s house. When they did so, they saw a motorcycle in the living room. They took it. What crime did they commit? Carnapping

Q: Suppose the accused broke the window of the car, and took the valuables inside. What crime did he commit? Theft Q: What if the accused pushed the car all the way to the other street before opening a door and taking the valuables inside? 1. Carnapping 2. Theft *separate crimes Q: Your cell phone was taken from your bag when you were walking through the street and didn’t notice. What crime was committed? Theft

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Q: Suppose the car contained jewelry and a safe box? The crime is still carnapping

CRIMINAL LAW II 190 K notes Q: Suppose you turned around at the moment you felt something being taken from your bag; and the accused pointed a gun at you to stop you from running after him. What crimes did he commit? 1. Theft 2. Grave Threats *separate crimes Q: After robbery was committed, the building was set on fire. What crimes were committed? Robbery with arson, complexed

ART.299 ROBBERY IN AN INHABITED HOUSE OR PUBLIC BUILDING OR EDIFICE DEVOTED TO WORSHIP Q: How is this committed? SUBDIVISION A, ART.299 ELEMENTS 1. The offender entered – a. An inhabited place; or b. A public building; or c. An edifice devoted to religious worship 2. The entrance was effected by any of the following means: a. Through an opening not intended for entrance or egress b. By breaking any wall, roof, or floor; or by breaking any door or window c. By using false keys, picklocks or similar tools d. By using any fictitious name or pretending he exercise of public authority 3. Once inside the building, the offender took personal property belonging to another and did so with intent to gain

SUBDIVISION B, ART.299 ELEMENTS 1. The offender is inside a dwelling house, public building or edifice devoted to religious worship, REGARDLESS of the circumstances under which he entered it 2. He takes personal property belonging to another; does so with intent to gain; and under any of the following circumstances: a. By the breaking of doors, wardrobes, chests or any other kind of locked or sealed furniture or receptacle; or b. By taking such furniture or objects away to be broken or forced open outside the place of robbery

NOTES: Subdivision B

The law focuses on the manner of gaining entry here (i.e.: breaking any wall, roof… etc.); entry is controlling here

The law focuses on the manner of obtaining the article (breaking anything INSIDE the building, i.e.: chests, wardrobes, furniture… or taking the same OUTSIDE to force them open)

The ‘door’ contemplated here is an EXTERNAL one

‘Doors’ contemplated here are internal ones, found within the building

The crime is theft if the offender did not enter the building

Entry by any of the means under subdivision A is not required for robbery under subdivision B

Any of the 4 means must be resorted to for ENTRANCE, not for getting out

When a thing is taken outside to be broken open, it isn’t necessary that it is actually forced open

The whole body of the culprit must be inside the

The crime is estafa or theft if the thing is not

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Subdivision A

CRIMINAL LAW II 191 K notes building to constitute entry The wall must be an outside wall, not a party wall or one in between rooms in a house/building The outside door must be ‘broken’, not merely ‘forced open’ (roflmao) ‘False keys’ are genuine keys stolen from the owner or any keys other than those intended by the owner for use on the lock ‘Picklocks’ are tools specially adopted for the commission of robbery Mere possession of picklocks is punishable; even the locksmith who made them may be held liable Re: false keys, the genuine key must be stolen, not taken by force or intimidation of the owner

forced open INSIDE the building where it was being kept; or when it is taken therefrom to be broken outside The penalty for robbery with force upon things in an inhabited house, etc. depends on the VALUE of the property taken and on whether or not the offender carries arms The arms carried by the offender must NOT be used to intimidate, else art.294 applies Note the adjectives used by the law: the furniture or receptacle must be ‘locked or sealed’, if it isn’t locked or sealed, there is no robbery –Atty. A When the object is taken away (see: 2nd manner of commission, under subdivision B above), there mere act of removing it consummates the crime

The false key or picklock must be used to ENTER the building, NOT to open trunks/chests/etc. inside, else the crime is theft If the breaking of windows was committed on a car (like, the dude broke the car windows), the crime is theft, not robbery with force upon things

ART.300 ROBBERY IN AN UNINHABITED PLACE AND BY A BAND *The robbery mentioned in the next preceding article, if committed in an uninhabited place and by a band shall be punished by the maximum period of the penalty therefor Q: What are the 2 qualifications? Robbery under art.299 must be committed 1. By a band, AND 2. In an uninhabited place

Q: Suppose the robbery committed was by means of violence and intimidation against persons. What is the legal effect of the presence of a band? The presence of a band qualifies the offense *NB: Robbery with violence or intimidation of persons must be committed either in an uninhabited place OR by a band, in order to be qualified. Band and uninhabited place do not have to concur

ART.301 WHAT IS AN INHABITED HOUSE, PUBLIC BUILDING,

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Q: Do these 2 have to concur? Yes


BUILDING DEDICATED TO RELIGIOUS WORSHIP AND THEIR DEPENDENCIES Q: What is an inhabited house? Any shelter, ship or vessel constituting the dwelling of one or more persons, even though the inhabitants thereof shall temporarily be absent therefrom when the robbery is committed Q: What are dependencies? All interior courts, corrals, warehouses, granaries, barns, coach-houses, stables or other departments or enclosed spaces contiguous to the building or edifice, having an interior entrance connected therewith and which form part of the whole *NB: Requisites for dependencies – 1. Must be contiguous to the building 2. Must have an interior entrance connected therewith; and 3. Must form part of the whole Q: What is a public building? The term ‘public building’ includes every building owned by the government or belonging to a private person bit used or rented by the government, although temporarily unoccupied by the same Q: Suppose there is a house. Adjacent to it is a grocery. There is a door connecting one to the other and the offender destroys the external grocery door and went through the connecting door into the house. Is he liable? Yes Q: Suppose in a public building, the accused entered through the external door, took something from inside the building and left through the window. What crime did he commit? Theft – he destroyed nothing, did not force entrance, used no false keys, etc. Q: Suppose he merely reached for the valuables nearest to the open window. What crime did he commit? Theft Q: Suppose his entire body went through the window Robbery

Q: How is this committed? 1. The offender entered an uninhabited place or building which was NOT a dwelling house or public building or edifice devoted to worship 2. Any of the following circumstances was present: a. Entrance was effected through an opening not intended for entrance of egress b. A wall, roof, floor or outside door or window was broken c. Entrance was effected through the use of false keys, picklocks or other similar tools d. A door, wardrobe, chest or receptacle was broken e. A closed or sealed receptacle was removed, even if the same is broken elsewhere 3. The offender took therefrom personal property belonging to another, with intent to gain

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ART.302 ROBBERY IN AN UNINHABITED PLACE OR IN A PRIVATE BUILDING


ART.303 ROBBERY OF CEREALS, FRUITS OR FIREWOOD IN AN UNINHABITED PLACE OR PRIVATE BUILDING *In the cases enumerated in arts.299 and 302, when the robbery consists in the taking of cereals, fruits or firewood, the culprit shall suffer the penalty next lower in degree than that prescribed in the said articles Q: What are cereals? Seedlings which are immediate products of the soil

ART.304 POSSESSION OF PICKLOCKS OR SIMILAR TOOLS Q: How is this committed? 1. The offender has in his possession picklocks or similar tools 2. Such picklocks or similar tools are specially adapted to the commission of robbery 3. The offender does not have lawful cause for such possession Q: What about the person making such tools? The same penalty applies to the maker of the tools Q: Suppose the offender is a locksmith? The penalty is higher (prision correccional in its medium – maximum periods) Q: Is actual use necessary? No

ART.305 FALSE KEYS

CHAPTER TWO BRIGANDAGE Q: What is brigandage? Brigandage is a crime committed by more than 3 armed persons who form a band of robbers for the purpose of committing robbery in the highways; or kidnapping persons for the purpose of extortion or to obtain ransom for any other purpose to be attained by means of force or violence Q: What is punishable here? The act of forming a band for the purpose of robbery or kidnapping for ransom, or for any other purpose to be attained through force or violence

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Q: What are included in the term ‘false keys’? 1. Picklocks or similar tools 2. Genuine keys stolen from the owner 3. Any keys other than those intended by the owner for use in the lock forcibly opened by the offender


ART.306 WHO ARE BRIGANDS – PENALTY Q: When is there brigandage? When – 1. There are at least 4 armed persons 2. They formed a band of robbers 3. For any of the following purposes: a. To commit robbery in the highways b. To kidnap persons for ransom or extortion c. To attain any other purpose through force or violence Q: What is the presumption of the law as to brigandage? All persons in the band are presumed highway robbers of brigands if any of them carries an unlicensed firearm

NOTES: *The law does not qualify the ‘arms’ necessary, except when the presumption as to unlicensed firearms is applied *’Highway’ includes city streets

ART.307 AIDING AND ABETTING A BAND OF BRIGANDS Q: How is this committed? 1. There is a band of brigands 2. The offender knows the band to be of brigands 3. He does any of the following acts: a. He in any manner aids, abets, or protects such band of brigands b. He gives them information of the movements of the police or other peace officer of the government c. He acquires or receives the property taken by the brigands Q: What is the presumption of the law as to knowledge? The person performing the acts has done so knowingly unless the contrary is proven

*Highway Robbery and 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 persons; or force upon things, or other unlawful means, committed by any person on any Philippine highway *Philippine highway: Any road, street, passage, highway and bridges, or other parts thereof, or railway/railroad within the Philippines used by persons or vehicles or locomotives or trains for the movement or circulation of persons or transportation of goods, articles, or property or both *Any person who aids or protects highway robbers, or abets the commission of highway robbery/brigandage shall be considered as an accomplice

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HIGHWAY ROBBERY OR BRIGANDAGE UNDER PRESIDENTIAL DECREE 532


*The same presumption applies as to knowledge, under art.307 of the RPC

CHAPTER THREE THEFT Q: How is theft committed? Theft is committed by any person who, with intent to gain, but without violence against or intimidation of persons nor force upon things, shall take personal property of another without the latter’s consent

ART.308 WHO ARE LIABLE FOR THEFT Q: Who may be held liable for theft? 1. Those who – a. With intent to gain b. But without violence against persons nor force upon things c. Take personal property belonging to another d. Without the latter’s consent 2. Those who – a. Having found lost property b. Fail to deliver the same to local authorities or to its owner 3. Those who – a. After having maliciously damaged the property of another b. Remove or make use of the fruits or object of the damage caused by them 4. Those who – a. Enter and enclosed state or field b. Where trespass is forbidden or which belongs to another without the consent of its owner c. To hunt or fish upon the same or gather fruits, cereals or other forest/farm products Q: How is theft committed? 1. Taking of personal property 2. The personal property belongs to another 3. The taking is done with intent to gain AND without the consent of the owner 4. The taking is accomplished without the use of violence against or intimidation of persons or force upon things

NOTES *There is ‘taking’ even If the offender received the thing from the offended party because taking is defined with respect to the transfer of physical possession *’Personal property’ includes electricity and gas, promissory notes, checks and invoices *Selling the share of a partner or joint owner is NOT theft because, before the dissolution of the partnership, the property is owned in common, no part of that property truly belongs to a co-owner or partner

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Q: What does the law presume, when a person is found in possession of property not belong to him? The law presumes theft, provided that the property must have been recently stolen

CRIMINAL LAW II 196 K notes *In the sale of goods, there is theft if the goods are taken after payment but BEFORE measuring or weighing without consent of the vendor *Actual or REAL gain is not necessary, the law looks at anumo lucrandi (intent to gain) *Lack of opposition is NOT consent, even if the offended party knew of the taking but did not consent to it, the crime is still theft *There is no robbery, (but theft instead) when violence is employed for a reason entirely foreign to the act of taking *Unless the force upon things is employed to ENTER the building, there is theft *Delay in the delivery of lost property to the local authorities is immaterial when the finder surrendered it voluntarily to the owner when the latter came to retrieve it *Par.1, art.308 is not only limited to the actual finder, the finder in law as well (i.e.: a policeman) to whom the actual finder surrendered the lost property is also within the scope of the provision *The law does not require knowledge of the owner of the lost property (that his property was indeed missing), as long as the accused knew of had reason to know that the property was lost, it was his duty to return it *Intent to gain is inferred from deliberate failure to deliver the lost property to the proper person *The unlawful fishing should NOT be done in an actual fishpond, else the crime is qualified theft *Theft is not a continuing offense

ART.309 PENALTIES Q: What are the bases for penalties in theft? 1. The value of the thing stolen 2. The value and nature of the property taken or 3. The circumstances or causes that impelled the culprit to commit the crime

Q: When is theft qualified? 1. If the act is committed by a domestic servant 2. If it was committed with grave abuse of confidence 3. If the property stolen is – a. A motor vehicle b. Mail matter c. Large cattle 4. If the property stolen consists of coconuts taken from the plantation 5. If the property stolen is fish taken from a fishpond or fishery 6. If the property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption or any other calamity, vehicular accident or civil disturbance

NOTES

HIRYU KIMIKO OKUBO

ART.310 QUALIFIED THEFT

CRIMINAL LAW II 197 K notes *The penalty here is 2 degrees higher *Theft by a housemate is not always qualified *Theft by a labour3er is not qualified theft, only simple theft *Theft by one who had access to the place where the property is kept is qualified theft *The confidence gravely abused must be that existing between the offended party and the offender *Theft by an industrial partner is not qualified theft *IMPORTANT! RE: The NOVATION THEORY (of extinguishing criminal liability in theft), according to People v. Tanjuatco, GR. No. L-23924, April 29, 1968, the acceptance of payment by the complainant converts the liability of the accused into a civil obligation or estops the complainant from proceeding with criminal prosecution and this is applicable when there are contractual relations between the accused and complainant. Atty A disagrees. ‘Does it extinguish criminal liability? No. Never. The grounds for extinguishment of criminal liability are enumerated under Art.89, Novation is not one of them. Criminal liability inures to the act the moment all elements are there, whether you like it or not; and the moment this happens, criminal liability may ONLY be extinguished through the modes under art.89. Does it extinguish criminal liability before the crime is committed or before all elements set in? No. Legally speaking, there is no crime yet, and there is nothing to be extinguished.’ – Atty. A

ANTI-CARNAPPING ACT OF 1992 RE: THEFT OF MOTOR VEHICLES *Carnapping: The taking with intent to gain, or a motor vehicle belonging to another without the latter’s consent, or by means of violence against or intimidation of persons; or by use of force upon things *Qualified Carnapping: When in the course of the commission or on the occasion of carnapping, the owner, driver, or occupant of the vehicle is killed or raped

ANTI-CATTLE RUSTLING LAW OF 1974 RE: THEFT OF LARGE CATTLE

Includes the killing of large cattle, or taking its meat or hide without the consent of the owner or raiser *Presumption of cattle rustling: Failure to exhibit required documents = prima facie evidence that the large cattle in one’s possession, control or custody are the fruits of cattle rustling *Large cattle: Includes the cow, carabao, horse, mule, ass or other domesticated member of the bovine family

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*Cattle rustling: Taking away by any means, method or scheme, without the consent of the owner or raiser, of any of the animals classified as large cattle whether or not for profit or gain or whether committed with or without violence against or intimidation of any person or force upon things


PRESIDENTIAL DECREE 330 RE: QUALIFIED THEFT *Qualified Theft also includes timber smuggling from, and illegal cutting of logs in, public forest and forest reserves

PRESIDENTIAL DECREE 1612 ANTI-FENCING LAW *Fencing: The act of any person who, with intent to fain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner deal in any article, item or object or anything of value which he knows, or should be known to him, to have been derived from the proceeds or robbery or theft *Presumption of Fencing: Mere possession of any good, article, item, object or anything of value which has been the subject of robbery or thievery = prima facie evidence of fencing *ELEMENTS of Fencing: 1. Robbery or theft has been committed 2. The accused, who is not a principal or accomplice in the robbery/theft, buys, receives, possesses… any article … or anything of value which has been derived from the proceeds of the said crime 3. The accused knows or should have known that the said article/thing of value has been delivered from the proceeds of the crime of robbery/theft 4. There is, on the part of the accused, intent to gain for himself or another

ART.311 THEFT OF THE PROPERTY OF THE NATIONAL LIBRARY AND NATIONAL MUSEUM *If the property stolen be any property of the national library/national museum, the penalty shall be arresto mayor/fine ranging from Php 200 – 500, or both, unless a higher penalty should be provided under other provisions of this Code, in which case, the offender shall be punished by such higher penalty

ART.312 OCCUPATION OF REAL PROPERTY OR USURPATION OF REAL RIGHTS IN PROPERTY Q: What are the punishable acts? 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: 1. The offender takes possession of any real property or usurps any real rights in property

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CHAPTER FOUR USURPATION

CRIMINAL LAW II 199 K notes 2. The real property/real rights belong to another 3. Violence against or intimidation of persons is used by the offender in occupying real property or usurping real rights in property 4. There is intent to gain on the part of the offender

ART.313 ALTERING BOUNDARIES OR LANDMARKS *ELEMENTS: 1. There are boundary marks or monuments of towns, provinces, or estates, or any other marks intended to designate the boundaries of the same 2. The offender alters the said boundary marks

CHAPTER FIVE CULPABLE INSOLVENCY ART.314 FRAUDULENT INSOLVENCY *ELEMENTS: 1. The offender is a debtor, and has obligations due and payable 2. He absconds with his property 3. There is prejudice to his creditors

CHAPTER SIX SWINDLING AND OTHER DECEITS ART.315 SWINDLING – ESTAFA

ESTAFA UNDER ART. 315 Elements of Estafa IN GENERAL: 1. The accused defrauded another a. By abuse of confidence or b. By means of deceit (fraudulent acts/fraudulent means) 2. Damage or Prejudice capable of pecuniary estimation is caused to the offended party or to a third person ESTAFA WITH UNFAITHFULNESS OR ABUSE OF CONFIDENCE (Art.315, No.1) a) By altering the substance, quantity or quality of anything of value

ESTAFA BY MEANS OF FALSE PRETENSES OR FRAUDULENT ACTS (Art.315, No.2)

ESTAFA THROUGH FRAUDULENT MEANS (Art.315, No.3)

a) By using fictitious name, or falsely pretending to possess power, influence,

a) By inducing another, by means of deceit, to sign any document

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*This part is immensely trying – so here’s a table for ya :)


ELEMENTS: 1. The offender has an onerous obligation to deliver something of value 2. He alters its substance, quantity or quality 3. Damage or prejudice is caused to another

b) By misappropriating or converting money, goods or any other personal property received in trust, or on commission or for administration, or under any obligation involving the duty to make delivery of, or to return the same; or by denying having received such goods/money

qualifications, property, credit, agency, business or imaginary transactions; or by other similar deceits

ELEMENTS: 1. The offender induced the offended party to sign a document 2. Deceit is employed to make him sign the document 3. The offended party signed the document 4. Prejudice is caused

b) By altering the quality, fineness, or weight of anything pertaining to his art or business

b) By resorting to some fraudulent practice to insure success in a gambling game

c) By pretending to have bribed any Government employee

c) By removing, concealing, or destroying any court record, office files, document or any other papers

c) By taking undue advantage of the signature of the offended party in blank, and by writing any document above such signature in blank ELEMENTS: 1. The paper with the signature of the offended party is in blank 2. The offended party should have delivered it to the offender 3. Above the signature of the offended party, a document is written by the offender without authority to do so 4. The document so written creates a liability of, or causes damage to, the

ELEMENTS: 1. There are court records, office files, documents or any other papers 2. The offender removed, concealed or destroyed any of them 3. The offender had intent to defraud another

HIRYU KIMIKO OKUBO

ELEMENTS: 1. The money goods, or other personal property must be received by the offender in trust/ on commission/ for administration/ under any obligation involving delivery or return of the same 2. There is misappropriation or conversion of such money/ property by the offender; or denial on his part of such receipt

CRIMINAL LAW II 201 K notes offended party or any 3rd person d) By postdating a check or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check ELEMENTS: 1. The offender post-dated a check, or issued a check in payment of an obligation 2. 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

Q: How is Damage or Prejudice inflicted? 1. The offender was deprived of his money or property as a result of fraud 2. There is a disturbance in property rights or 3. Temporary prejudice to the offended party or to a 3rd person

HIRYU KIMIKO OKUBO

e) By obtaining any food, refreshment, or accommodation at a hotel, inn, restaurant, boarding house, lodging house, or apartment house and the like without paying therefor; or by obtaining credit at the said places by the use of false pretense; or by abandoning or surreptitiously removing any part of his baggage from the same without paying for his food, refreshment or accommodation

CRIMINAL LAW II 202 K notes FORMULAE FOR DETERMINING THE COMMISSION OF ESTAFA, THEFT OR CIVIL LIABILITY (The Amurao Formulae) ESTAFA Juridical Possession + Material Possession + Misappropriation of the property THEFT

Material Possession ONLY + Misappropriation

NO CRIME, ONLY CIVIL LIABILITY

OWNERSHIP of the personal property + Juridical Possession + Material Possession + Misappropriation

**NOTES: *Understand the difference between JURIDICAL and MATERIAL possession: 1.

JURIDICAL POSSESSION is the kind of possession based on, or coming from a judicial act or transaction (this is what gives you the right to possess), i.e.: an agreement/ a contract, express or implied, oral or written; a provision of law (like a lease, commodatum, or deposit). This is the kind of possession that can be set up even against the actual owner of the property, a ‘better’ right than the owner because it emanates from the law or an agreement

2. MATERIAL POSSESSION is possession that does NOT originate from a judicial act; it is an extension of the personality of the owner (i.e.: the owner gives you instructions, commands, orders or requests). This may not be set up against the owner of the property *What is controlling here is the SOURCE of possession *RE: ESTAFA, the obligation involves the ‘return of the SAME thing’. When the obligation is facultative, therefore, there is no obligation to return that exact same thing *Transfer of ownership is a transfer or all rights over the thing, therefore, misappropriation of the thing carries no criminal liability, only civil liability (i.e.: co-ownership) *When the agent acts within the scope and purpose of the agency when he sells/disposes of the thing, there is no crime committed. If, however, there was an express prohibition NOT to employ a sub-agent, for example, and the agent did, estafa is committed (because the agent acted beyond his scope, acted as if he were the owner of the property, he CONVERTED the property and disregarded the terms and conditions of the agency and the sale and acted in violation of what was agreed upon)

*RE, BATAS PAMBANSA 22 (BP 22): This is a catch-all provision, providing for criminal liability whether or not there is a pre-existing obligation. The liability under BP 22 is SEPARATE from that under Art.315 of the RPC. Q: Suppose Amurao’s criminal law 2 book was borrowed by a student. Amurao allowed the student to use the book for a week. Can he take back the book tomorrow? No Q: Suppose the week has passed, and you were not able to return the book. What crime did you commit? Estafa

HIRYU KIMIKO OKUBO

*RE: COMMISSON OF FRAUD VIA POSTDATING A CHECK: if this happened simultaneously with contracting the obligation, estafa has been committed. If, however, there was already an existing obligation when the check was issued, there is no estafa.

CRIMINAL LAW II 203 K notes Q: Suppose Atty. Amurao asked you to bring his book to the dean’s office. After 2 minutes, you were called back because Amurao decided he does not trust you. Can you refuse to return the book? No, Atty. Amurao has a better right to possession than I do Q: Suppose that instead of going to the dean’s office, you went to Recto and sold the book. What crime did you commit? Theft – I only had material possession of the thing when I misappropriated it Q: X borrowed the book. Already anticipating that it could be lost, he asked Atty. Amurao ‘what if I can’t return it?’, to which Amurao answered ‘As long as you give me the same book, latest edition.’ The student was not able to return the original book. What crime did X commit? X did not commit any crime and is liable only for civil liability, he was not under the obligation to return the exact same book, and ownership of the original book was transferred to him *NB: the thing that has to be returned has to be the SAME thing. If, as in this case, only a similar object is asked in the event that the original one is lost, ownership was transferred. X practically owned the original book and could opt to replace it with the latest edition Q: Atty. Amurao lent you his lucky Php 1,000 bill. He has kept the same in his wallet for 15 years because it has brought him a lot of luck. Atty. Amurao told you to return the same bill and made a receipt for it, on which he wrote down the bill’s serial number. He also made it clear that the bill was to be returned on or before Monday. On Monday, you failed to return the bill. What crime was committed? Estafa Q: X asked Amurao if he could borrow the lucky bill. Amurao agreed, and told X that it would be okay if he lost the original one and replaced it with another Php 1,000 bill. X failed to return the original bill. What crime was committed? None – X is only civilly liable Q: Suppose Amurao has a driver. He handed the driver the keys to the car so he could gas up. The driver did not return. What crime was committed? Carnapping *When the object of the misappropriation is a car or a motor vehicle, and the offender only had MATERIAL possession of the thing, the crime is carnapping Q: X borrowed Amurao’s car over the weekend to be used as a private car for X’s cousin’s wedding. The car was not returned. What crime was committed? Estafa – Both material and juridical possession were transferred, this is not carnapping

Q: A guardian was appointed by the court over the property of the ward. The property amounted to Php 500,000. The guardian misappropriated Php 200,000. What crime was committed? Estafa Q: A sales representative of an appliance company approached B, a prospective customer. The sales representative explained the benefits, and when B was not convinced, he allowed a one-week trial period. After the 7 days, B failed to return the product. Was there misappropriation? Yes Q: Could B be liable for estafa? No

HIRYU KIMIKO OKUBO

Q: Suppose A asked B to pay A’s business taxes, for which A gave B Php 50,000. Instead of paying for the taxes, B spent the money for personal uses. What crime was committed? Estafa

CRIMINAL LAW II 204 K notes Q: A student deposited Php 200,000 for the alleged destruction of laboratory materials in school. After the hearing, the court found him not guilty. The school was asked to return the bills, but it returned Php 200,000 in bills with different serial numbers. What crime was committed? None, the school was not under the obligation to return the exact same bills, only the same amount Q: Suppose A is the owner of several pieces of jewelry worth Php 2,000. He gave the jewelry to X to be sold on a cash basis. Within 5 days, X was supposed to account for the proceeds of the sale. If it was not sold, he would return the jewelry to A. X sold the jewelry on a credit basis and the buyer failed to pay on the agreed date. X therefore failed to account for the sale. What crime was committed? Estafa by conversion Q: Suppose that when the jewelry was given to X, he was merely told to sell the same within 30 days and if it was not sold, to return the same. X sold it on credit. Was the sale on credit within the scope of the authority given to X? Yes Q: May X therefore be held liable for estafa? No Q: Suppose that instead of selling the jewelry, X gave it to a sub-agent who sold the jewelry to Y. Y could not pay for the same on the agreed date. Is X liable for estafa? No, there was no express prohibition against employing a sub-agent (if there was, X could be liable for estafa) Q: May a co-owner of a property be liable for estafa? No Q: What is the legal effect of Novation on criminal liability? None, novation does not affect criminal liability (see: earlier notes on the novation theory vis-àvis criminal liability) Q: ABC Corporation’s head of office is in Manila. X was assigned to Cebu to collect ABC’s accounts there. All collectors shall have a period of 30 days to remit the collected accounts. On the 10 th day, X played in a casino and lost the entire amount. Was there misappropriation? Yes Q: Is X liable for estafa? No, he still has 20 days to remit the amount

Q: Did it extinguish the criminal liability? No, because at the time it was entered into, all the elements of estafa were not yet present; AND even if they were, novation is not one of the modes of extinguishing criminal liability Q: Suppose that on December 18, the president said that the collectors have only under December 24 to remit their collection; X did not want to leave Cebu since it was Christmas. He ended up spending the money. On December 26, X went to Manila and talked to the president. They had an agreement, but X resigned the next day. Is X liable for estafa? Yes, the promissory note did not extinguish the criminal liability and all the elements of estafa were complete

HIRYU KIMIKO OKUBO

Q: Suppose that on the 20th day, X went to Manila, talked to the President of the company, and confessed. He entered into an agreement with the President and signed a promissory note where he acknowledged his obligation to pay, and that the amount would be deducted from his salary. After 5 days, X resigned. Was there novation? Yes – novation arose from the agreement entered into with the President

CRIMINAL LAW II 205 K notes Q: Suppose one Saturday afternoon, you went to a grocery store, purchased groceries worth Php 10,000. You did not have enough cash with you and you also did not have enough funds in the bank but you decided to issue a check anyway. The owner accepted the check. On Monday, the grocery store owner deposited the check and it bounced. A demand to pay was made, and you failed to comply. What crime was committed? Estafa – the check was issued simultaneously with the obligation Violation of BP 22 (provided you received sufficient notice) *separate crimes Q: Suppose you asked the owner if you could just pay on Monday and you would be allowed to bring home the items you sought to buy. The owner agreed. On Monday, you issued a check which bounced. A demand for payment was made and you failed to comply. Was estafa committed? No, at the time the check was issued, there was already a pre-existing obligation Q: On a Saturday afternoon, you purchased groceries worth Php 10.000. You issued a check in favour of the owner, but before the check was deposited by the latter on Monday, you went to him and told him that the check you issued will be replaced by a new one. The owner accepted the new check, but it bounced. Is this estafa? No, the issuance of the new check was already for a pre-existing obligation, but I could be liable for a violation of BP 22

BATAS PAMBANSA 22 RE: BOUNCING CHECKS Q: Who are liable? Persons who – 1. Issue 2. Make; or 3. Draw A bouncing check Q: Are endorsers liable? No Q: Suppose a check was issued not as payment of an account but as a guaranty for an obligation. The check bounced. Is the person who issued it liable? Yes, mere issuance constitutes a violation of BP 22

1.

Making or Drawing and Issuing any check to apply on account tor for value, knowing at the time of issue that the (maker/drawer/issuer) does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonoured for insufficiency of funds/credit; or would have been dishonoured for the same reason, had not the person drawer, without any valid reason, ordered the bank to stop payment ELEMENTS: 1. A person makes/draws of issues any check 2. The check is made/drawn/issued to apply

2. Having sufficient funds in, or credit with the drawee bank when the offender makes/draws or issues a check, by failing to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of 90 days from the date appearing thereon, for which reason it is dishonoured by the drawee bank

ELEMENTS: 1. A person has sufficient funds/credit when he makes/issues/draws a check

HIRYU KIMIKO OKUBO

Q: What are the punishable acts?

CRIMINAL LAW II 206 K notes on account or for value 3. The person who makes/draws/issues the check knows at the time of issue that he does not have sufficient funds/credit for the payment of the check upon its presentment 4. The check is subsequently dishonoured for insufficiency of funds/credit; or would have been dishonoured for the same reason if the drawer had not, without any valid reason, ordered the bank to stop payment

2. 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 90 days from the date appearing thereon 3. The check is dishonoured by the drawee bank

NOTES: *The making, drawing and issuing of a check, payment of which is refused by the drawee bank because of insufficiency of funds in or credit, is prima facie evidence of knowledge of insufficiency of funds/credit when the check is presented within 90 days from the date on the check *Failure to make good the payment within 5 banking days gives rise to prima facie evidence of knowledge of the lack and insufficiency of funds *If the check that was issued without funds is presented AFTER 90 days, the drawer/maker/issuer is not liable *The maker/issuer/drawer is also not liable when the he pays the holder of the check 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 bank *Prima facie evidence does not arise where notice of non-payment is not sent to the maker/drawer of the check *Conviction of acquittal under the Revised Penal Code is NOT a bar to prosecution under BP 22 (re: estafa) because of the different requisites – BP 22 requires the additional fact of the drawee’s knowledge of lack/insufficiency of funds, the RPC does not. *Estafa by issuing a bad check is a continuing crime

Q: Same facts, but this time, you did not have sufficient funds when you ordered the bank to stop payment. Are you liable? Yes

ART.316 OTHER FORMS OF SWINDLING *The other forms of swindling are: 1. Conveying, selling, encumbering or mortgaging any real property, and pretending to be the owner of the same **ELEMENTS: a. The thing is immovable

HIRYU KIMIKO OKUBO

Q: Suppose at the time you issued a check, you had sufficient funds. After 2 days, you sent a notice to the bank to stop payment because the payee failed to comply with his obligation. The bank refused to honour the check. Are you liable? No

CRIMINAL LAW II 207 K notes b. The offender, who is not the owner of the property, represents that he is the owner c. He executes an act of ownership d. The act is made to the prejudice of the owner or a 3rd person (actual damage is necessary) 2. Disposing of real property as free from encumbrance, although such encumbrance is not recorded **ELEMENTS: a. The thing disposed of is real property b. The offender knew that the real property was encumbered, whether the encumbrance is recorded or not c. There is express representation by the offender that the real property is free from encumbrance d. The act of disposing of the real property is made to the damage of another 3. Wrongful taking by the owner of his property from its rightful possessor **ELEMENTS: a. The offender is the owner of personal property b. The property is in the lawful possession of another c. The offender wrongfully takes it from its lawful possessor d. Prejudice is thereby caused to the possessor or to a 3rd person 4. Executing any fictitious contract to the prejudice of another *NB: If the conveyance is real and not simulated, the crime is fraudulent insolvency under art.314 5. Accepting any compensation for services not rendered or for labour not performed *NB: Fraud here is required, else, the arrangement is solution indebiti, and carries with it only the civil duty to return undue payment 6. Selling, mortgaging or encumbering real property or properties with which the offender guaranteed the fulfillment of his obligation as surety **ELEMENTS: a. The 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 properties c. He sells, mortgages, or in any other manner encumbers said real property d. Such sale, mortgage or encumbrance is – i. Without express authority from the court ii. Made before the cancellation of his bond; or iii. Made before being relieved from the obligation contracted by him

*ELEMENTS: 1. The offender takes advantage of the inexperience or emotions/ feelings of a minor 2. He induces the minor to – a. Assume an obligation b. Give release or c. Execute transfer of any property right 3. The consideration is some loan of money or credit or other personal property 4. The transaction is to the detriment of the minor

ART.318 OTHER DECEITS *Punishable Acts:

HIRYU KIMIKO OKUBO

ART.317 SWINDLING A MINOR


1. Defrauding or damaging another by any other deceit not mentioned in the preceding articles 2. Interpreting dreams, making forecasts, telling fortunes or taking advantage of the credulity of the public in any other similar manner for profit or gain

PRESIDENTIAL DECREE 1613 RE: ARSON ART.320 ARSON **NB: Presidential Decree 1613 expressly repealed or amended Articles 320-326 of the Revised Penal Code, but Presidential Decree 1744 revived Article 320 *Kinds of Arson: 1. Simple Arson (Sec.1, PD 1613) 2. Destruction Arson (Art.320, as amended by RA No.7659) 3. Other cases of arson (Sec.3, PD 1613) PD 1613 AMENDING THE LAW ON ARSON *Summary of Important Definitions and Salient Provisions Arson: -Any person who burns or sets fire to the property of another -The same penalty shall be imposed when the person sets fire to his own property under circumstances which expose to danger the life or property of another -Definition: the malicious destruction of property by fire

Destructive Arson: -When the property burned is – 1. Ammunitions factories or establishments where explosives/combustible materials are stored 2. Archive/museum whether public or private; any edifice devoted to culture, education and social services 3. Any church/place of worship/ building where people usually assemble 4. Train, airplane, vessel, watercraft or conveyance for transportation of persons or property 5. Building where evidence is kept for use in any legislative, judicial or administrative or other official proceeding 6. Hospital, hotel, dormitory, lodging house, housing tenement, shopping centre, public or private market, theatre/movie house 7. Building, whether used as a dwelling or not, situated in a populated or congested area Other cases of arson: -Burning any of the following – 1. Building used as offices of the government or 2. Inhabited house/ dwelling 3. Industrial establishment 4. Plantation, farm, pastureland, etc. 5. Rice/sugar or cane mill, mill central 6. Railway/ bus station, airport, wharf, warehouse Special Aggravating Circumstances:

HIRYU KIMIKO OKUBO

-Conspiracy to commit arson is also punishable

CRIMINAL LAW II 209 K notes 1. If committed with intent to gain 2. If committed for the benefit of another 3. The offender is motivated by spite or hatred towards the owner or occupant of the property burned 4. Committed by a syndicate (planned or carried out by a group of 3 or more persons) Prima Facie Evidence of Arson 1. The fire started simultaneously in more than one part of the building 2. A substantial amount of flammable materials are stored in the building 3. Gasoline, kerosene, petroleum or other flammable or combustible substances or materials soaked therewith, or containers thereof, or any electronic contrivance designed to start a fire or ashes or traces of any of the foregoing are found in the ruins 4. The building or property is insured for substantially more than its actual value at the time of the issuance of the policy 5. If during the lifetime of the corresponding fire insurance policy, more than 2 fires have occurred in the same premises owner or under the control of the offender and/or insured 6. If shortly before the fire, a substantial portion of the effects insured and stored in a building or property had been withdrawn from the premises except in the ordinary course of business 7. Demand for money or other valuable consideration was made before the fire in exchange for the desistance of the offender or for the safety of the person or property of the victim

Q: How is Arson committed, under the RPC? CRIMES INVOLVING DESTRUCTION

Elements:

Elements:

1.

1.

An uninhabited hut, storehouse, barn, shed, or any other property is burned 2. The value of the property burned does not exceed Php25.00 3. The burning was done at a time or under circumstances which clearly exclude all danger of the fire spreading

NOTES

BURNING ONE’S PROPERTY AS A MEANS TO COMMIT ARSON Elements:

The offender 1. The offender set fire causes destruction to, or destroyed his of the property own property 2. The destruction 2. The purpose of the was done by means offender in doing so of – was to commit arson a. Explosion or to cause great b. Discharge of destruction electric current 3. The property c. Inundation belonging to another d. Sinking or was burned or stranding of a destroyed vessel e. Damaging the engine of the vessel f. Taking up rails from railway track g. Destroying telegraph wires and posts or those of any other system h. Other similar effective means of destruction

ARSON

Elements: 1.

The property burned is the exclusive property of the offender 2. The purpose of the offender in burning it is to defraud or cause damage to another or prejudice is actually caused, or the thing burned is a building 1.in an inhabited place

HIRYU KIMIKO OKUBO

ARSON OF PROPERTY OF SMALL VALUE


*There is no complex crime of Arson with Homicide. If by reason or on occasion of arson, death results, the crime of Homicide is absorbed in arson *Under RA 9372 (Human Security Act of 2007), a person who commits an act punishable under PD 1613 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 terrorism (sec.3, RA 9372)

CHAPTER NINE MALICIOUS MISCHIEF ART.327 WHO ARE LIABLE FOR MALICIOUS MISCHIEF *Any person who deliberately causes damage to another’s property and who does not fall within the provisions of the next preceding chapter (arson, other crimes involving destruction) *Elements of Malicious Mischief: 1. The offender deliberately caused damage to the property of another 2. Such act does not constitute arson or other crimes involving destruction 3. The act of damaging another’s property is committed merely for the sake of damaging it

NOTES: *Malicious mischief is the wilful damaging of another’s property for the sake of causing damage due to hate, revenge or other evil motives *It cannot be committed through negligence *If no malice was involved, there is only civil liability *If after damaging the thing, the offender used it, the crime is theft

ART.328 SPECIAL CASES OF MALICIOUS MISCHIEF *Qualified Malicious Mischief: 1. Causing damage to obstruct the performance of public functions 2. Using poisonous or corrosive substances 3. Spreading any infection or contagion among cattle 4. Causing damage to the property of the National Museum or Library or to any archive, registry, waterworks, road, promenade, or any other thing used in common by the public

ART.329

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*Damage is not an incident of the crime (as compared to, for example, breaking windows in robbery) – the act of causing damage itself is punishable


OTHER MISCHIEFS *Mischiefs not included in Art.328, punished according to the value of the damage caused

ART.330 DAMAGE AND OBSTRUCTION TO MEANS OF COMMUNICATION *Damaging any railway, telegraph, or telephone lines *Qualified if the damage results in any derailment of cars, collision or other accidents

ART.331 DESTROYING OR DAMAGING STATUES, PUBLIC MONUMENTS OR PAINTINGS *Self-explanatory, this

CHAPTER TEN EXEMPTION FROM CRIMINAL LIABILITY IN CRIMES AGAINST PROPERTY ART.332 PERSONS EXEMPT FROM CRIMINAL LIABILITY *Crimes involved: 1. Theft 2. Swindling/Estafa 3. Malicious Mischief

NOTES *Exemption is based on family relations *Parties to the crime who are not related to the offended party still remain criminally liable *Exempted persons include: stepparents, adopted children, concubine/paramour

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*Persons Exempted: 1. Spouses, ascendants and descendants, relatives by affinity in the same line 2. Widowed spouse who commits any of the 3 crimes above 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, sisters-in-law, if living together


TITLE ELEVEN CRIMES AGAINST CHASTITY CHAPTER ONE ADULTERY AND CONCUBINAGE ART.333 WHO ARE GUILTY OF ADULTERY *Persons Liable: 1. Married woman who has sexual relations with a man not her husband 2. The man who has carnal knowledge of her, knowing her to be married, even if the marriage be subsequently declared void *Elements: 1. The woman is married 2. She has sexual relations with a man not her husband 3. With respect to the man, he knew her to be married

NOTES *The acquittal of one party does not operate as acquittal for the other

ART.334 CONCUBINAGE *Modes of Commission: 1. Keeping a mistress in the conjugal dwelling 2. Having sexual relations, under scandalous circumstances, with a woman who is not the man’s wife 3. Cohabiting with her in any other place

CHAPTER TWO RAPE AND ACTS OF LASCIVIOUSNESS *NB: Art.335 on Rape was repealed by Republic Act 8353

ART.336 ACTS OF LASCIVIOUSNESS *Elements: 1. The offender commits any act of lasciviousness or lewdness 2. The act is committed against a person of either sex 3. The act is committed under any of the following circumstances: a. Using force or intimidation

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*Elements: 1. The man is married 2. He committed any of the 3 punishable acts 3. With respect to the woman, she must know him to be married

CRIMINAL LAW II 213 K notes b. The offended party is deprived of reason or is unconscious c. By means of fraudulent machination or grave abuse of authority d. The offended party is under 12 years old or demented

CHAPTER THREE SEDUCTION, CORRUPTION OF MINORS, AND WHITE SLAVE TRADE *Seduction: Enticing a woman to unlawful sexual intercourse by promise of marriage or other means of persuasion without the use of force

ART.337 QUALIFIED SEDUCTION *2 classes: 1. Seduction of a virgin over 12 and under 18 by certain persons (i.e.: person in authority, etc.) 2. Seduction of a sister by her brother, or descendant by her ascendant regardless or her age or reputation *Elements of seduction of virgin 1. The offended party is a virgin, which is presumed if she is unmarried and of good reputation 2. She is over 12, but under 18 3. The offender has sexual intercourse with her 4. The offender employs abuse of authority, confidence or relationship *Persons Liable: 1. Those who abused their authority a. Person in public authority b. Guardian c. Teacher d. Person entrusted with the education or custody of the seduced girl 2. Those who abused confidence a. Priest b. House servant c. Domestic 3. Those who abused relationship a. Brother who seduced his sister b. Ascendant who seduced his descendant

*Elements: 1. The offender party is over 12 years old, but under 18 2. She is of good reputation, single or a widow 3. The offender has sexual intercourse with her 4. The act is done by means of deceit

ART.339 ACTS OF LASCIVIOUSNESS WITH THE CONSENT OF THE OFFENDED PARTY

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ART.338 SIMPLE SEDUCTION

CRIMINAL LAW II 214 K notes *Elements: 1. The offender commits acts of lasciviousness or lewdness 2. The acts are committed upon a woman who is a virgin, single or widow of good reputation, under 18 but over 12 years old; or a sister or descendant 3. The offender accomplishes the acts by abuse of authority, confidence, relationship or deceit

ART.340 CORRUPTION OF MINORS *The promotion or facilitation of prostitution or corruption of persons under age to satisfy the lust of another

ART.341 WHITE SLAVE TRADE *Punishable Acts: 1. Engaging in the business of prostitution 2. Profiting by prostitution 3. Enlisting the services of women for the purpose of prostitution

CHAPTER FOUR ABDUCTION *Abduction: The taking away of a woman from her house or place where she may be for the purpose of carrying her to another place with intent to marry or corrupt her

ART.342 FORCIBLE ABDUCTION *Elements: 1. The person abducted is any woman, regardless of age, civil status, or reputation 2. The abduction is against her will 3. The abduction is carried out with lewd designs

*Elements: 1. The offended party must be a virgin 2. She must be over 12 years old, but under 18 3. The taking away must be with her consent, after solicitation or cajolery from the offender 4. The taking away must be with lewd designs

ART.344 PROSECUTION OF THE CRIMES OF ADULTERY, CONCUBINAGE, SEDUCTION, ABDUCTION AND ACTS OF LASCIVIOUSNESS

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ART.343 CONSENTED ABDUCTION

CRIMINAL LAW II 215 K notes *Art.344 no longer covers the prosecution of Rape, as per RA 8353. Rape may now be prosecuted ex officio *Order of preference for filing the complaint in the above mentioned crimes: 1. The offended party 2. Parents 3. Grandparents 4. Guardians *parents, grandparents and guardians may file if the party is a minor or is incapacitated *RE: ADULTERY AND CONCUBINAGE – Prosecution shall be upon a complaint filed by the offended spouse. The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, or in any case, if he shall have consented or pardoned the offenders *RE: SEDUCTION AND ABDUCTION – Prosecution shall be upon a complaint filed by the offended party or her parents, grandparents, or guardian. No prosecution if the offender has been expressly pardoned by the above-named person *RE: SEDUCTION, ABDUCTION, ACTS OF LASCIVIOUSNESS – The marriage of the offender with the offended party shall extinguish the criminal action or remit the penalty already imposed upon him *The complaint must be – 1. Subscribed to by the offended party and 2. Filed in court, not with the fiscal *Silence or acquiescence of the offended party does not cure the defect of lack of subscription nor operate to confer jurisdiction of the court *Pardon must come BEFORE the institution of criminal action and BOTH offenders must be pardoned *Prior consent bars the institution of criminal proceedings, subsequent consent bars it too *Condonation is NOT synonymous with pardon; Condonation does not bar subsequent complaints *Only the offended party may pardon, except in cases where the offended minor is dead or incapacitated *Marriage of the parties guilty of adultery/concubinage does not extinguish criminal liability because both parties are offenders

1. To indemnify the offended woman 2. To acknowledge the offspring, unless the law should prevent him from doing so 3. In every case, to support the offspring *The adulterer and the concubine can be sentenced to indemnify the offended spouse for damages *There is no civil liability for acts of lasciviousness *In multiple rape, all the accused must support the offspring

ART.346

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ART.345 CIVIL LIABILITY OF PERSONS GUILTY OF CRIMES AGAINST CHASTITY


LIABILITY OF ASCENDANTS, GUARDIANS, TEACHERS OR OTHER PERSONS ENTRUSTED WITH THE CUSTODY OF THE OFFENDED PARTY *Accomplices punished as principals in private crimes: 1. Ascendants 2. Guardians 3. Curators 4. Teachers 5. Any other person who cooperates as an accomplice with abuse of authority or confidential relationship

TITLE TWELVE CRIMES AGAINST THE CIVIL STATUS OF PERSONS CHAPTER ONE SIMULATION OF BIRTHS AND USURPATION OF CIVIL STATUS ART.347 SIMULATION OF BIRTHS, SUBSTITUTION OF ONE CHILD FOR ANOTHER AND CONCEALMENT OR ABANDONMENT OF A LEGITIMATE CHILD *Punishable Acts: 1. Simulation of birth 2. Substitution of one child for another 3. Concealing or abandoning any legitimate child with intent to cause such child to lose its civil status *The fact that the child will be benefited by the simulation of its birth is not a defence

ART.348 USURPATION OF CIVIL STATUS *Committed by assuming the filiation or parental or conjugal rights of another for the purpose of defrauding the offended party of his heirs *’Civil Status’ includes one’s public station, profession, the rights, duties, capacities and incapacities which determine a person to a given class

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*Requisites for concealing or abandoning a legitimate child: 1. The child must be legitimate 2. The offender conceals or abandons such child 3. The offender has the intent to cause such child to lose its civil status

CRIMINAL LAW II 217 K notes *There must be intent to enjoy the rights arising from the civil status of another, else the crime is assuming or using a fictitious name under art.178 or estafa under art.315 *The purpose of defrauding the offended party of his heirs qualifies the crime

CHAPTER TWO ILLEGAL MARRIAGES Art.349 BIGAMY *Elements: 1. The offender has been legally married 2. The marriage has not been legally dissolved or in case of an absentee spouse, that spouse could not yet be presumed dead according to the civil code 3. He contracts a 2nd or subsequent marriage 4. The subsequent marriage has all the essential requisites for validity *The 2nd spouse is not necessarily liable for bigamy *Bigamy is not a private crime *A person convicted of bigamy may still be prosecuted for concubinage

ART.350 MARRIAGE CONTRACTED AGAINST PROVISIONS OF LAWS *Elements: 1. The 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 *Qualifying: If either of the contracting parties obtains the consent of the other by means of violence, intimidation, or fraud

ART.351 PREMATURE MARRIAGES *Persons Liable: 1. Any widow who married within 301 days from 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 *Ratio: Preventing confusion in connection with filiation and paternity *The period may be disregarded if the first husband was sterile or impotent

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*The offender must not be guilty of bigamy

CRIMINAL LAW II 218 K notes *The period applies only to women who are not pregnant. If they are, the prohibition is good only until delivery

ART.352 PERFORMANCE OF ILLEGAL MARRIAGE CEREMONY *Persons Liable: Priests or ministers of any religious denomination or sect or civil authorities who shall perform or authorize any illegal marriage ceremony *The offender must be authorized to solemnize marriage else, the liability is for Art.177 (usurpation of authority or official functions)

TITLE THIRTEEN CRIMES AGAINST HONOUR CHAPTER ONE LIBEL SECTION ONE – DEFINITION, FORMS AND PUNISHMENT OF THE CRIME

ART.353 DEFINITION OF LIBEL *A libel is a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonour, discredit or contempt of a natural or juridical person, or to blacken the memory of one who is dead *Defamation: includes liber and slander, means the offense of injuring a person’s character, fame, or reputation through false and malicious statements *Libel: Defamation committed by means of writing, printing, lithography, engraving, radio, phonograph, painting or theatrical or cinematographic exhibition or any similar means *Oral defamation = slander

*Elements of Defamation 1. Imputation of – a. A crime b. A vice or defect – real or imaginary c. Any act or omission, status of circumstance 2. The imputation is made publicly 3. It must be malicious 4. It is directed at a natural or juridical person or one who is dead 5. It tends to cause the dishonour, discredit or contempt of the person defamed *The meaning of the writer is immaterial, it is the meaning CONVEYED to the minds of persons of reasonable understanding that the law looks at, taking into consideration the surrounding circumstances *Even if intended for humour, it could still be libellous

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*Seditious libel is punished under art.142


*Imputation of criminal intent is NOT libellous *There is no crime if the imputation is not published; publication being communication of the defamatory matter to some 3rd persons *MALICE IN FACT: may be shown by proof of ill-will, or purpose to injure; express malice *MALICE IN LAW: presumed from a defamatory imputation; proof of malice is not required because it is presumed to exist by the law *Where the communication is privileged, malice is not presumed from the defamatory words; the prosecution must prove malice whenever the imputation appears in a privileged communication *Even if the publication is injurious, the presumption of malice in law disappears upon proof of good intention and justifiable motive *But where malice in fact is present, justifiable motive cannot exist and the imputations become actionable *Identification of the offended party is required; it isn’t sufficient that the offended party recognized himself as the attacked or defamed; it must be shown that at least a 3rd person could identify him as the object of the libelous publication *Where the article is impersonal on its face and interpretation of its language does not single out individuals, the requisite of identification is missing and defamation does not exist *BUT the publication need not refer to the offended party by name; it is sufficient that the offended party is the person meant or alluded to therein *Defamatory remarks directed at a group of persons is not actionable unless the statements are allembracing or are sufficiently specific for the victims to be identifiable *Liber published in different parts may be taken together to establish the identity of the offended party *INNUENDO: a clause in the indictment or other pleading containing an averment which is explanatory of some preceding word or statement; defines the defamatory meaning which the plaintiff set on the words, to show how they came to have that meaning and also to show how they relate to the plaintiff *In libel, there are as many offenses as there are persons defamed

*Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases: 1. A private communication made by any person to another in the performance of any legal, moral, or social duty; and 2. A fair and true report, made in good faith, without any comments or remarks of any judicial, legislative, or other official proceeding which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions *IS TRUTH A DEFENCE IN LIBEL? NO. Generally speaking, truth is NOT a defence in libel. An offender may NOT invoke ‘truth’ as a defence in libel, because libel is a punishable act wherein the law looks at the EFFECT TO THE MINDS OF THE PUBLIC (i.e.: whether the publication has stigmatized the offended party in the

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ART.354 REQUIREMENT FOR PUBLICITY

CRIMINAL LAW II 220 K notes eyes of the public), and NOT at the intrinsic value of the publication (i.e.: whether it was truthful or otherwise) NOTE however, that the law enumerates specific instances when truth may be invoked as a defence (SEE: ART.361) *Malice in law is presumed from every defamatory imputation, EVEN IF it were true, the presumption still exists if no good intention and justifiable motive for making it is shown *Rebutting the Presumption of Malice: Defendant must show that – 1. The defamatory imputation is true, in case the allows proof of the truth of the imputation (see: No.2, art.354 re: ‘fair and true report’) 2. It is published with good intention; and 3. There is justifiable motive for making it *RE: PRIVILEGED COMMUNICATION: ABSOLUTE PRIVILEGED COMMUNICATION NOT actionable, EVEN IF its author has acted in bad faith i.e.: statements by members of Congress in the discharge of their functions; answers given by witnesses in reply to questions propounded to them; allegations or statements made by the parties or their counsels in their pleadings Scope: narrow and practically limited to legislative and judicial proceedings and other acts of state, including communications made in the discharge of duty under express authority of law, by or to heads of executive departments and matters involving military affairs

CONDITIONAL OR QUALIFIED PRIVILEGED COMMUNICATION Those which, although containing defamatory imputations, would not be actionable UNLESS made with malice or bad faith There is malice when the defamer has been prompted by ill-will or spite and speaks not in response to duty, but merely to injure the reputation of the person defamed If the case is not covered by absolute privilege, it may be tested in the light of the qualified privilege extended to a private communication made by person to another in the performance of any legal, moral or social duty Lost by proof of malice

*Communication in par.1, art.354 need not be in a private document

*REQUISITES OF PRIVILEGED COMMUNICATION (Par.1, Art.354) 1. The person who made the communication had a legal, moral or social duty to make the communication, or at least, had an interest to be upheld 2. The communication is addressed to an officer or board or superior having some interest or duty in the matter 3. The statements in the communication are made in good faith and without malice *RE: privileged communication in the performance of a legal duty, presupposes a provision of law conferring upon the accused the duty to communicate; if there is no provision of law, there is no duty to communicate, and the communication is therefore not privileged *RE: moral duty, the existence of a moral duty depends upon the relationship between the giver and receiver of the communication and whether the said communication is voluntarily given or not; i.e.: complaints against priests to their superiors *RE: social duty, this also depends upon the relationship between the sender and recipient

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*The privileged communication covers also complaints against individuals who are not public officers, like priests


*Unnecessary publicity destroys good faith *That the statement is privileged is a matter of defence that must be established by the accused *Overcoming the defence of privileged communication: Prosecution must prove that – 1. The defendant acted with malice in fact 2. There is no reasonable ground for believing the charge to be true *Even when the statements are found to be false, if there is probable cause for belief in their truthfulness and the charge is made in good faith, the mantle of privilege may still cover the individual’s mistake *REQUISITES OF A FAIR AND TRUE REPORT (Par.2, Art.354) 1. It is a fair and true report of a judicial, legislative or other official proceeding which are NOT of a confidential nature; or a statement/speech/report delivered in said proceeding, or of any other act performed by a public official in the exercise of his functions 2. It is made in good faith 3. It is without any comments or remarks *The communication made in the report must be pertinent and material to the subject matter in which the author claims an interest to uphold *The protection of the privilege may be lost by the MANNER of its exercise *Only matters which are NOT of confidential nature may be published *Defamatory remarks and comments on the conduct of public officers which are related to the discharge of their official duties will not constitute libel if the defendant proves the truth of the imputation; this concerns matters of PUBLIC INTEREST, where the imputation is based on this, the presumption of criminal intent does NOT arise from the mere publication of defamatory matter; in order that a discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on false supposition *Retaliation or vindictiveness cannot be a basis of self-defence in defamation

ART.355 LIBEL BY MEANS OF WRITING OR SIMILAR MEANS *Libel may be committed by means of – 1. Writing 2. Printing 3. Lithography 4. Engraving 5. Radio 6. Phonograph 7. Painting 8. Theatrical exhibition 9. Cinematographic exhibition 10. Any similar means

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*The defamatory statements made by the accused must be a fair answer to the libel made by the supposed offended party and must be related to the imputation made the answer should be unnecessary libelous


*Defamation made through an amplifier is not libel but oral defamation

ART.356 THREATENING TO PUBLISH AND OFFER TO PREVENT SUCH PUBLICATION FOR A COMPENSATION *Punishable Acts: 1. Threatening another to publish a libel concerning him, or his parents, spouse, child or other members of his family 2. Offering to prevent the publication for compensation or monetary consideration *Blackmail: any unlawful extortion of money by threats of accusation or exposure *Felonies where blackmail is possible: 1. Light threats (art.288) 2. Threatening to publish, or offering to prevent the publication of a libel for compensation (art.356)

ART.357 PROHIBITED PUBLICATION OF ACTS REFERRED TO IN THE COURSE OF OFFICIAL PROCEEDINGS *Elements: 1. The offender is a reporter, editor, or manager of a newspaper daily or magazine 2. He publishes facts connected with the private life of another 3. Such facts are offensive to the honour, virtue and reputation of said person *The prohibition applies even if the facts are involved in official proceedings *GAG LAW (art.357): newspaper reports on cases pertaining to adultery, divorce, issues about the legitimacy of children will necessarily be barred from publication

ART.358 SLANDER *Slander: oral defamation; libel committed by oral or spoken means instead of in writing *Factors that determine the gravity of Oral Defamation: 1. Expressions used 2. Personal relation of the accused and the offended party 3. Circumstances surrounding the case 4. Social standing or position of the offended party *The slander need not be personally heard by the offended party

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*The reporter, etc. may NOT, however, be compelled to reveal the source of the news report unless the Court/ House Committee of Congress finds it to be demanded by the security of the State


ART.359 SLANDER BY DEED *Elements: 1. The offender performs any act not included in any other crime against honour 2. Such act is performed in the presence of other persons 3. Such act casts dishonour, discredit or contempt upon the offended party *Slander by deed refers to slander BY PERFORMANCE, not by the use of words – written or spoken

SECTION TWO – GENERAL PROVISIONS

ART.360 PERSONS RESPONSIBLE *Persons liable for crimes against honour: 1. Person who publishes, exhibits or causes the publication or exhibition of any defamation in writing or similar means 2. Author or editor of a book or pamphlet 3. 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 participated in, or have connection with its publication *If the crime imputed is one that cannot be prosecuted publicly (i.e.: adultery), offended party must file the complaint; the information filed by the fiscal is not sufficient to clothe the court with jurisdiction

ART.361 PROOF OF THE TRUTH *When proof of truth is admissible: 1. When the act or omission imputed constitutes a crime regardless of whether the offended party is a private or public individual 2. When the offended party is a government employee, even if the act or omission imputed does not constitute a crime, provided it is related to the discharge of his official duties

*Proof of truth must rest upon POSITIVE, DIRECT evidence, upon which a definite finding may be made by the court; but PROBABLE CAUSE for belief in the truth of the statement is sufficient *Retraction may mitigate the damages *That the publication was made as an honest mistake only serves to mitigate the damages and is not a complete defence

ART.362 LIBELOUS REMARKS

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*RE: public officers, when the imputation involves the private life of a government employee, which is NOT related to the discharge of his official duties, the offender is not allowed to prove the truth of it as a matter of defence

CRIMINAL LAW II 224 K notes *Libelous remarks or comments connected with the matter privileged under the provisions of art.354, if made with malice, shall not exempt the author thereof, nor the editor of a newspaper from criminal liability

CHAPTER TWO INCRIMINATORY MACHINATIONS ART.363 INCRIMINATING INNOCENT PERSON *Elements: 1. The offender performs an act 2. By such act he directly incriminates or imputes to an innocent person the commission of a crime 3. The act does not constitute perjury *Art.363 is limited to ‘planting’ evidence and the like, which do not in themselves constitute false prosecutions but tend to directly cause false prosecutions

ART.364 INTRIGUING AGAINST HONOUR *Committed by fomenting any intrigue which has for its principal purpose to blemish the honour or reputation of a person *Includes in its scope any scheme or plot which consists of some trickery for the above-defined purpose *Gossiping, which is done by availing directly of spoken words = Defamation, NOT intriguing against honour *Where the source of the information given can be pinpointed and definitely determined, and it passes from one to another for the purpose of causing dishonour, the crime is Slander

TITLE FOURTEEN QUASI-OFFENSES SOLE CHAPTER CRIMINAL NEGLIGENCE ART.365 IMPRUDENCE AND NEGLIGENCE *Four ways of commission:

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*But where the source or the author of the derogatory information cannot be determined and the defendant borrows that information and without subscribing to the truth thereof, passes it to others, the crime is intriguing against honour


By committing through reckless imprudence any act which, had it been intentional, would constitute a grave or less grave or light felony 2. By committing through simple imprudence or negligence an at which would otherwise constitute a grave or a less serious felony 3. By causing damage to the property of another through reckless imprudence or simple imprudence or negligence 4. By causing through simple imprudence or negligence some wrong, which if done maliciously, would have constituted a light felony *RECKLESS IMPRUDENCE: 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 or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place *SIMPLE IMPRUDENCE: consists in the lack of precaution displayed in those cases wherein the damage impending to be caused is not immediate nor the danger clearly manifest *If the act performed would NOT constitute a felony (grave/less grave/light) under any other provision of the Code which defines intentional felony, art.365 is not applicable. There is no crime committed. *Imprudence or negligence is NOT a crime in itself, but rather a way of committing one; it merely determines a lower degree of criminal liability and becomes punishable ONLY when it results in a felony *Criminal negligence is a quasi-offense, dealt with separately from wilful offenses; what is principally penalized is the mental attitude or condition behind the act, the dangerous recklessness, the lack of care or foresight *Imprudence: deficiency of ACTION; failure in PRECAUTION *Negligence: deficiency of PERCEPTION; failure in ADVERTENCE *Elements of Reckless Imprudence: 1. The offender does or fails to do an act 2. The doing of/failure to do that act is voluntary 3. It is without malice 4. Material damage results 5. There is inexcusable lack of precaution on the part of the offender, taking into consideration – a. His employment or occupation; b. Degree of intelligence, physical condition; c. Other circumstances regarding persons, time and place

*Elements of Simple Imprudence: 1. There is a lack of precaution on the part of the offender 2. The damage impending to be caused is not immediate or the danger is not clearly manifest *Art.64 relative to mitigating and aggravating circumstances is NOT applicable to crimes committed through negligence; courts shall exercise sound discretion by judging on a case-by-case basis *Contributory Negligence is NOT a complete defence, it merely mitigates criminal liability *Doctrine of Last Clear Chance: In accordance with this, the contributory negligence of the injured party will not the defeat the action if it is shown that the accused might have avoided the consequences of the negligence of the injured party by the exercise of reasonable care and prudence *Emergency Rule: An accused who, by the negligence of another and not by his own negligence, is suddenly placed in an emergency and compelled to act instantly to avoid injury is not guilty of

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*Criminal Negligence presupposes lack of intention to commit the wrong done, but that it came about due to imprudence on the part of the offender

CRIMINAL LAW II 226 K notes negligence if he makes such a choice which a person of ordinary prudence placed in such a position might make, even though he did not make the wisest choice *Failure to lend help is a qualifying circumstance

- oOo END OF CRIMINAL LAW 2 COVERAGE oOo-

CONGRATULATIONS! You made it through a semester under this law school’s most challenging Criminal Law Professor! Good luck with the grade and the QPI, and here’s hoping that these notes helped out a bit – If only to lighten to sometimes depressing mood:) As for You, Marvin - I’d like to think you would have enrolled alongside us For this coming semester, had you not been busy enjoying those wings. Fly high. ‘1-K all the way’, remember? We love and miss you – and yes the dream lives on... all the way to the Bar exam and beyond it.

HIRYU KIMIKO OKUBO

~Kimiko

Criminal Law 2 - Amurao Notes

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