CrimRev - Garcia Notes Book 2

CRIMINAL LAW 2

TITLE ONE CRIMES AGAINST NATIONAL SECURITY AND THE LAW OF NATIONS (Articles 114 – 122)

ARTICLE 114 – TREASON is committed by a Filipino citizen or an alien residing in the Philippines who levies war against the Philippine Government or adheres to her enemies by giving them aid and comfort ELEMENTS: 1. The offender is by birth, a Filipino Citizen or an alien residing in the Philippines, even if temporary allegiance The offender may either be a Filipino • citizen, because a Filipino citizen owes permanent allegiance to the Philippine Government; or another offender is a foreigner, an alien temporarily residing in the Philippines. During his temporary stay in the Philippines, he is given protection by the Philippine Government under its laws therefore it is but incumbent upon him to have temporary allegiance to the Philippine Government. That is why even an alien, a foreigner temporarily residing in the Philippines can also commit treason in times of war. 2.

That there is a war in which the Philippines is involved The second element is that there is a • war in which the Philippines is involved. In the case of Laura vs. Misa, treason is a war time offense. It can be committed only in times of war. In times of peace, Treason remains to be dormant crime, however, the moment when an emergency arises, the moment a war arises, it is immediately put into effect as an act self-defense and self-preservation of the Philippine Government. Treason cannot be committed in times of peace, because in times of peace, there are no traitors. •

Who are these traitors? These enemies are troops of the • enemy state which is in war with the Philippines. Filipino men like the MILF, NPAs, even if they are at war with the Philippine government, they cannot be considered as enemies

Dinty | Manalo | Navarez | Shyu | Tubio

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because they are still considered as Filipino citizens. So the aliens refer to the citizens of the enemy state which is at war with the Philippines. 3.

That the offender either— a. L e v i e s w a r a g a i n s t t h e Philippine government, or b. Adheres to the enemies by giving them aid or comfort. The third element refers to the • mode of committing treason. treason may be committed by either: a. Levies war against the Philippine government ,requires the concurrence of two elements: 1) there must be an actual of assembly of men 2) it is for the purpose of executing or effecting a treasonable design by force. This means that the said offenders, Filipino citizens who are said to be in collaboration with the enemy troops in order to hand over the Philippine Government to the enemy troops. Absent of that collaboration, it cannot be considered as treason   b. Adheres to the enemies by giving them aid or comfort. Adherence to the enemies— mean that the Filipino citizen or t h e o ff e n d e r i n t e n t i o n a l l y, intellectually and emotionally favors the e n e m y. Therefore,adherence to the enemies is an internal state of mind, it is mental state, you cannot see adherence to the enemies

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How now would you know that a person is adhering to the enemy state? It is manifested by his • acts of giving aid or comfort to the enemy. That is why these two must concur: 1. Adherence to the enemies

CRIMINAL LAW 2 2. Giving them aid or comfort •

Mere adherence to the enemies, without any act of giving aid or comfort to the enemy will not bring along treason, it is the act of giving aid or comfort which is the manifestation of the adherence to the enemies.

• EXAMPLES OF ACTS OF ADHERING TO THE ENEMIES BY GIVING AID OR COMFORT: o By giving the enemies information, transportation, arms, supplies, all of these will weaken the defense of the Philippines and strengthen the enemy state. o People vs. Perez:The court said, "the act of commandeering women or giving women to the enemy troops in times of war, to satisfy the lust of the enemy troops is not considered as a treasonable act." Because according the Court, whatever benefit is given to the enemy is merely trivial in nature,imperceptible and it was not the intent of the offender (unintentionally). •

give rise to a separate and distinct crime? Will you charge him for two crimes based on treason and murder? A: There is only one crime committed by him and the crime committed is treason. Common crimes such as Murder, physical injuries, homicide, arson, if they are committed in furtherance to, in connection with or incidentally to treason shall be absorbed in the crime of treason because they are atrocities for war and therefore, they are considered as absorbed in the crime of treason. It cannot even be complex, they are considered absorbed in the crime of treason.

There are two ways of proving treason under Article 114: 1. TESTIMONY OF TWO WITNESSES, AT L E A S T, T O T H E S A M E O V E R T A C T, OTHERWISE KNOWN AS THE "TWO-WITNESS RULE" There must be two witnesses who will prove • only on the commission by the offender of an overt act showing that he adheres to the enemy. Therefore, treason cannot be proven by mere substantial evidence. There must be direct evidence, a witness to this act of giving aid or comfort to the enemy. 2. CONFESSION OF THE OFFENDER OR THE ACCUSED MADE IN AN OPEN COURT Confession of guilt must be made before a • court. Extra-judicial confession will not give rise to conviction in case of the crime of treason.

ILLUSTRATION: Q: What if there is war which the Philippines is involved? X was among those who committed treason against the government. now X in committing treason killed a public officer of the government of the Philippines, in furtherance of his act of treason. Will such act amounting to murder


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  Q: What if A, B and C, conspired and agreed to commit treason against the Philippine Government. After their conspiracy and agreement, A went to X. A told his friend X that he was in conspiracy with B and C to commit treason against the Philippine Government. After A told him such conspiracy with X, A left. X, despite knowledge of the conspiracy to commit treason among A, B, and C, did not disclose such information to the proper authorities. What crime/crimes is/are committed by A, B, C, and X? A: A, B, and C are liable for the conspiracy to commit treason. There is a meeting of two or more persons come to an agreement to commit the crime of treason and decide to commit it.There is proposal to commit treason when a person has decided to commit the crime of treason and proposes its execution to some other person or persons. The moment that other person whom the proposal was given, raise to the commission of crime, we no longer have proposal, but we have Conspiracy to commit treason. In the problem, A, B, and C, conspired, agreed to commit the crime of treason against the Philippine government, therefore they are all liable for conspiracy to commit treason.

Q: X, who had knowledge of the conspiracy to commit treason among A, B, and C, however, despite that knowledge, he did not disclose it to the proper authorities. What is the liability of X? A: X is liable for misprision of treason – is committed by any person who owes permanent allegiance to the Philippine Government who fails to disclose of knowledge to commit treason as soon as possible to the proper authorities.In the problem, C, despite having knowledge of the conspiracy to commit treason among A, B, and C did not divulge it, did not disclose it to the proper authorities, therefore, X is liable for misprision of treason. •

TREASON can be committed both by Filipino citizens and a foreigner temporarily residing in the Philippines, but MISPRISION OF TREASON can only be committed by a Filipino citizen who owes permanent

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allegiance to the Philippine government, it cannot be committed by a foreigner residing in the Philippines.

ARTICLE 117 – ESPIONAGE There are two ways of committing espionage under Article 117: I. B y ent erin g , with out aut hori t y ther efor , a war shi p , fort, o r nav a l o r mili tary est abli s h m e n t o r res erv atio n to obt ain any info rma tion , pla ns, pho togr aph s or oth e r dat a of a


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con fide ntia l nat ure, rela tive t o the def ens e of the Phil ippi nes • The o ff e nde r can b e any pers on. H e can be a Filip ino citiz en, or a forei gner , or h e can be a publ i c offic e r o r emp loye e , o r h e can be a priv ate indi

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vidu al.

1. Tha t the o ff e nde r perf orm s unla wful o r una utho rize d acts b y the Phili ppin e gov ern men t.

W h e n will the crim e of espi ona g e aris e? Under the first mode, the crime of espionage will arise moment the offender enters the warship, fort or naval or military establishment or reservation, without authority if his intention is to obtain any information, plans, photographs or other data of a confidential nature, relative to the defense of the Philippines.

It is not necessary that for the crime to arise that he is successful in obtaining the data. It is not necessary that he indeed obtained the data. The mere act of entering without authority is sufficient if his intention is to obtain the data of confidential manner relative to the defense of the Philippines.

By disclosing to the representative of a foreign nation the contents of the articles, data or information referred to in paragraph No. 1 of art. 117, which he had in his possession by reason of the public office he holds. This mode of committing espionage can only • be committed by a public officer who has been trusted, by reason of his public position, of articles, data of confidential nature relative to the defense of the Philippines. The crime of espionage will arise the moment • the offender divulges or discloses the data and information to a representative of a foreign nation. So even if he is in possession of the same, • but he does not divulge it to any representative of a foreign nation, the crime will not arise.

•Espionage can be committed in BOTH, in times of peace and in times of war.

ARTICLE 118 –INCITING TO WAR OR GIVING MOTIVES FOR REPRISALS ELEMENTS:


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2. Tha t the said act prov oke o r give occ asio n f o r a war invo lvin g or liabl e to invo lve the Phili ppin e s o r exp ose Filip ino

CRIMINAL LAW 2 citiz ens t o repr isal s on their pers ons and pro pert y whil e they are in a forei g n cou ntry.

pea ce.

Case of CAPTAIN MENDOZA Hostage drama in Luneta. There were Hongkong citizens boarded the bus and here comes captain mendoza who was no longer a member of the military, he entered the bus, with different weapons and grenades and even killed some hongkong citizens. Captain mendoza performed unlawful, unauthorized acts which expose overseas Filipino workers in Hongkong and china to reprisals on their person or property. In fact, there were news at that time that Hongkong or China would be engaging in war with the Philippines. Head captain Mendoza, one of the crimes that may be held against him is inciting to war or giving motives for reprisals.

ARTICLE119 – VIOLATION OF NEUTRALITY ELEMENTS: 1. The crim e is com mitt e d whe n ther e is a war but the Phili ppin e s i s not invo lved i n the said war and;

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H e i s not lega l l y auth oriz e d t o d o so.

Inci ting t o war con note s that ther e is yet n o war. It is com mitt e d i n time s of


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2. The com pete n t auth ority issu ed a

CRIMINAL LAW 2 reg ulati o n f o r the pur pos e of enfo rcin g neut ralit y amo n g Filip ino citiz ens and ; 3.

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The o ff e nde r viol ates suc h reg ulati o n imp ose d.

Her e, ther e is war but the Phili ppin es is not invo lved in the said


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war. 

Q: There is a war between country X and country Y. Here comes Pedro, a Filipino citizen, he was siding with country X. Is he liable? A: No, he is not liable of violation of neutrality because in the problem, it did not say that the competent authority (the President) issued a proclamation or regulation imposing neutrality. •

The violation will only arise if there is a proclamation or regulation imposing neutrality and a Filipino citizen violates such declaration or regulation issued by a competent authority. Therefore, absence of such declaration of neutrality, the crime of violation of neutrality does not arise.

  ARTICLE120 – CORRESPONDENCE WITH HOSTILE COUNTRY ELEMENTS: 1. That it is in time of war in which the Philippines is involved. 2. That the offender makes correspondence with an enemy country or any territory occupied by enemy troops. 3. That the correspondence is either — a. Prohibited by the Philippine Government b. Carried on in ciphers or conventional signs c. Containing notice or information which might be useful to the enemy •

Here, there is a war in which the Philippines is involved.

Q: The Philippines is at war with the another country. Here comes X, a Filipino citizen, he has a pen pal who is a citizen of the country which is at war with the Philippines. The competent authority or the President issued a declaration of proclamation saying that there should be no correspondence to the enemy state. But X missed his penpal, and so, he wrote in a small piece of paper, "i love you, i miss you, muamua!" Is X liable of the crime of correspondence with the enemy? A:X is liable because there was a declaration issued by a competent authority that correspondence with the hostile country is prohibited and if there is no declaration, proclamation coming from the competent authority prohibiting correspondence, the crime will only arise if the said crime is carried on in ciphers or conventional signs or Containing notice or information which might be useful to the enemy.

ARTICLE 121 – FLIGHT TO ENEMY'S COUNTRY ELEMENTS: 1. That there is s war in which the Philippines is involved.

CRIMINAL LAW 2 2. That the offender must be owing allegiance to the Philippine Government 3. That the offender attempts to flee or go to enemy's country 4. That going to the enemy country is prohibited by a competent authority •

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a. The o ff e nde r s eith e r AT T A C K or SEI Z E the ves sel.

There must be a declaration or a proclamation issued by a competent authority, that no Filipino shall flee to the enemy's country and the offender violates such proclamation. Mere attempt will readily rise to the crime. It is not necessary that the offender has actually gone to the country. There must be declaration or proclamation prohibiting flight to enemy state.

ARTICLE 122 – PIRACY ELEMENTS: 1. The first element is where the vessel is located. The vessel can either be on the high seas or on Philippine waters (this was brought about by the amendment of RA 7659). Before the amendment of RA 7659, Piracy under Article 122 can only be committed when the vessel is on the high seas. But because of this amendment brought about by RA 7659, Piracy now under Article 122 can be committed when the vessel is on Philippine waters. 2.

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The second element provides for the offenders. The offenders must NOT be members of the complement or passengers of the vessel. Therefore, the offenders must be STRANGERS to the vessel. They must be coming from the outside, not from the inside.

The third ele men t refe rs to the mod e of com mitti n g pira cy.


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b. The o ff e nde r s eith e r SEI Z E I N WH O L E or I N PAR T the carg o , the equi pme n t o r the pers onal belo ngin g s o f the pas sen gers o r m e mbe rs of the com ple

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men t.

Bas e d o n thes e ele men t s , you will noti c e that pira cy is akin t o rob bery . It is in e ff e c t rob bery . It i s just call e d pira c y bec aus e the obje ct of the thin g is eith e r the ves sel o r the carg o or equi pme nt of


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the said ves sel. The re is also the use o f forc e or inti mid atio n . The re is also the use o f viol enc e agai nst pers ons. The re is also inte nt to gain .So it is akin , simil a r t o rob bery .

CRIMINAL LAW 2 ARTICLE122 –MUTINY COMMITTED WHEN: 1.The vessel is either on the high seas or on Philippine waters 2. The OFF E N D E R S are M E M B E R S O F THE C O M P L E M E N T o r PAS S E N G E R S O F THE V E S S EL 3. The o ff e nde r s rais e a com moti o n o r dist urb anc e on the boa r d the ship agai nst the lawf


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u l com man d of the capt ain o r the com man der o f the ship . In mutiny, there is no taking because in mutiny there is no intent to gain. Mutiny is the rising of commotion, a resistance against the lawful command, against the lawful authority of the commander or captain of the ship. Since in mutiny, there is no intent to gain, mutiny is akin to sedition. The rising of commotion, an uprising, an act of dissent against lawful authority.

SO HOW DO YOU DISTINGUISH PIRACY VS. MUTINY? 1. I n pira cy, the o ff e nde r s are stra nge rs to the ves sel, whe reas , in muti ny, the o ff e nde r s are nec ess arily insi d e the ves

CRIMINAL LAW 2 sel, they are eith e r m e mbe rs of the com ple men t or pas sen gers o f the ves sel 2. I n Pira cy, ther e is inte nt to gain bec aus e it i s simil a r t o rob bery , whe reas , in muti ny, ther e is n o inte nt to gain bec aus e the ess enc e of


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the crim e is t o g o agai nst the lawf u l auth ority o f the com man der o f the ship .

ILLUSTRATION: Q: The vessel is on the sea going to Mindoro. So while the ship is on its way to Mindoro, suddenly there comes a big storm. The commander or the captain of the ship said that they should first move towards the shore and let the storm comes calm in order to ensure the safety of the passengers of the vessel. The passengers of the vessel and members of the complement didn’t want the decision of the said captain of the ship and so they seize the captain of the ship and manned the vessel until they reach Mindoro. What crime, if any, is committed by these members of the complement and passengers of the vessel? A: They are liable of MUTINY. The vessel is on Philippine waters. The offenders are members of the complement and they go against the lawful authority of the captain of the ship. Therefore they are liable of mutiny.

Q: While a vessel is on Philippine waters, here comes a second vessel. Four men from the second vessel boarded the first vessel and at gunpoint, took the cargo and equipment of the said vessel. Placed them in the second vessel and off they went. What crime is committed by these four men? A: They are liable of PIRACY UNDER ARTICLE 122. The vessel is on Philippine waters, the offenders are not members of the complement or passengers of the ship. They seize the cargo and equipment of the vessel. Therefore, it is piracy under Article 122.

Q: The vessel is on Philippine waters. While the vessel is on Philippine waters, the members of the complement and passengers of the said vessel in conspiracy with one another took the cargo and equipment of the said vessel,

CRIMINAL LAW 2 and then they boarded a second vessel and off they went. What crime is committed by the members of the complement and passengers of the said vessel? A: The members of the complement and passengers of the vessel committed ACTS OF PIRACY because they seize in whole or in part the cargo or equipment of the vessel but NOT PIRACY UNDER ARTICLE 122 because in Article 122, it is a requisite that the offenders must be strangers to the vessel. Here, the offenders are members of the complement and passengers of the vessel. So the crime committed is PIRACY BUT UNDER PD 532.

ANTI-PIRACY AND ANTI-ROBBERY LAW OF 1974 (PD 532) Under PD 532, piracy is committed by attacking or seizing the vessel or seizing in whole or in part the cargo, equipment or personal belongings of the members of the complement or passengers of the vessel IRRESPECTIVE of the value thereof, committed by means of force and violence and committed by any person whether he may a member of the complement or passenger of the vessel or strangers to the vessel BUT the vessel is on Philippine waters. Therefore, for PIRACY UNDER PD 532 to arise, it necessary that the vessel is on Philippine waters.If the vessel is on the high seas, immediately rule out PD 532.

HOW COULD YOU KNOW IF IT IS PIRACY UNDER PD 532 OR PIRACY UNDER ARTICLE 122 OF RPC? If the vessel is on Philippine waters, your choice is • either Piracy under PD 532 or Piracy Article 122. • W h ere lies the diffe renc e? • Sinc e Artic l e 122 o f R P C is the mai n law, w e hav e to reco ncil e it with P D 532. O r P D 532 mus t be reco ncil e d


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with Artic l e 122. Pira c y und e r P D 532, the offe nde r s can b e any per son . He can b e a stra nge r . H e can b e m e m b ers o f the c o mpl e m ent. Therefore, where does PD 532 apply? • I t will appl y whe n the offe nde r s are m e m b ers o f the c o


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mpl e m ent o r pas sen ger s of the ves sel and the ves sel i s o n the Phil ippi n e wat ers.

Q: The vessel is on Philippine waters, suddenly men from the outside committed acts of piracy. What crime is committed? A: Piracy under Article 122 Q: The vessel is on Philippine waters. Acts of piracy were committed by the members of the complement or passengers of the vessel. What crime is committed? A: Piracy under PD 532

Q: What if the vessel is on the high seas? While the vessel is on the high seas, there comes a second vessel. Four men from the second vessel boarded the first vessel and at gunpoint took the cargo and equipment of the first vessel. What crime is committed by these four men? A: Piracy under Article 122. The vessel is on the high seas. The offenders are not members of the complement or the passengers of the vessel. They seize in whole or in part the cargo and equipment of the said vessel.

Q: While the vessel is on the high seas,members of the complement or passengers of the vessel in conspiracy with one anothertook away the cargo and equipment of the vessel. What crime is committed? NOTE: It is not piracy under Article 122 • because here, the offenders are members of the complement or passengers of the vessel. In Article 122, it is required that the offenders must be strangers to the vessel. It cannot be piracy under PD 532 because the vessel must be on Philippine waters. In our

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problem, the vessel is on the high seas. So, what crime is committed? A: Again, piracy is akin to robbery. Since Piracy under Article 122 and Piracy under PD 532 do not apply, the crime committed is ROBBERY IN AN UNINHABITED PLACE.

ARTICLE 123 – QUALIFIED PIRACY What are the circumstances which will qualify piracy? • Under Article 122, the following • circumstances will qualify piracy: 1. Whenever the offender have seized a vessel by boarding or firing upon; or 2. Whenever the offenders have aband0ned their victims without means of saving themselves; or There is intent to kill. • 3. W h e n e v e r t h e c r i m e i s a c c o m p a n i e d b y m u r d e r, homicide, physical injuries or rape Whenever these four • crimes accompanied the act of piracy, it will not bring a b o u t a s e p a ra te and distinct crime or a separate and distinct charge of murder, homicide, physical injuries or rape. These crimes are absorbed because they are circumstances which will qualify the penalty to death. NOTE: These circumstances are separate and distinct from each other. It is not necessary that all of themmust be present. The presence of one will qualify piracy. Notice the conjunction OR. These are qualifying circumstances which are prejudicial to the accused therefore they must be strictly construed.

ILLUSTRATION: Q: What if the vessel is on Philippine waters, and there comes a second vessel. Four men from the second vessel boarded the first vessel and at gunpoint, they asked the passengers to give to them all their valuables. One woman didn’t want to give her wedding ring because it was so precious to her and so one of the men forcibly took the wedding ring from the finger such that the finger was severed from it. What crime is committed? A: QUALIFIED PIRACY because piracy was accompanied by physical injuries.

Q: What if in the same problem, the woman didn’t want to give the ring, one of the men slapped the woman on the


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face three times and the face of the woman became reddish. She suffered slight physical injuries. What about the fact that the injury suffered was only slight? A: It will not make a difference although the injury suffered was only slight. In the third circumstance which will qualify piracy, the word “physical injuries” is used in its generic sense. Therefore, whatever be of kind of physical injuries, whether serious or slight for as long as it was accompanied by piracy, it will be considered as qualified piracy.

Q: What if in the same problem, the woman didn’t want to give the ring and one of the men touched the private parts of the said woman and after touching the private parts of the said woman with lust, he forcibly took the ring. What crime is committed by the said men? A: All of them will be liable for piracy. However, the man who touched the private part of the woman will be liable for two crimes: piracy and acts of lasciviousness. Acts of lasciviousness is not mentioned in Article 123. Therefore, its presence will not qualify piracy. It will bring about a separate and distinct charge of acts of lasciviousness. So, only these four crimes (murder, homicide, • physical injuries and rape) will qualify piracy. If other crime is committed and accompanied by piracy and is not among these four crimes mentioned in Article 123, it will bring about a separate and distinct charge.

QUALIFIED MUTINY Insofar as mutiny is concerned, what are the • circumstances which will qualify mutiny? In Article 123, there is no specific mention of • qualified mutiny, however according to Reyes and other legal luminaries, of the three circumstances stated in Article 123, paragraphs 2 and 3 are considered as circumstances which will qualify mutiny. That is: 1. whenever the offenders have abandoned their victims without means of saving themselves; or 2. w h e n e v e r t h e c r i m e i s accompanied with murder, homicide, physical injuries or rape According to Reyes and • other legal luminaries, only these two are considered qualified in mutiny because in mutiny, the offenders are n e c e s s a r i l y, o r d i n a r i l y inside the vessel because they are members of the

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ANTI-HIJACKING LAW (R.A. No. 6235 otherwise known as An Act Prohibiting Certain Acts inimical to Civil Aviation) Under RA 6235, there are four prohibited acts. 1. By compelling the pilot of an aircraft of Philippine registry to change its course or destination OR by seizing or usurping control thereof while it is in flight 2.

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By compelling an aircraft of foreign registry to land in Philippine territory OR by seizing or usurping control thereof while the same is in Philippine territory

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These are the first two prohibited acts. How could you distinguish the first act from the second act? • If the aircraft is of Philippine registry, the seizure or usurpation to amount in violation of RA 6235, requires that the aircraft must be in flight. An aircraft is in flight the moment all its external doors had been closed, following embarkation until any of it external doors had been opened for purposes of disembarkation. • On the other hand, if the aircraft is of f o r e i g n r e g i s t r y, t h e s e i z u r e o r usurpation did not need while it is in flight. For as long as the aircraft of foreign registry is within the Philippine territory, seizure or usurpation thereof will bring about violation of RA 6235 even if all its doors are opened; even if it is not in flight. Insofar as these two prohibited acts are concerned, what are the circumstances which will qualify the penalty? • Under RA 6235, the following circumstances will qualify the first two acts: a. By firing upon the pilot or the member of the crew or passenger of the aircraft; or b. By exploding or attempting to explode by mean of a bomb or explosive for purposes of destroying the aircraft; or c. W h e n e v e r t h e c r i m e i s accompanied by murder, homicide, serious physical injuries or rape •

NOTE: In case of piracy, the law uses the word “physical injuries” in its generic sense. Whatever be the kind of physical injury that will


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accompany piracy, the crime committed is qualified piracy. But in case of hijacking under RA 6235, the law is specific; it must be serious physical injuries. Therefore, if the physical injuries that would accompany the act of usurpation and seizure of the aircraft would only be less serious physical injuries or slight physical injuries, the penalty is not qualified. The penalty is qualified because from the penalty of 12 to 20 years, it would become 15 years to death.

By carrying or loading on board a PASSENGER AIRCRAFT operating as a public utility in the Philippines materials or substances which are explosive, flammable, corrosive or poisonous By shipping, carrying or loading on board a CARGO AIRCRAFT operating as a public utility in the Philippines materials or substances which are explosive, flammable, corrosive or poisonous in a manner not in accordance with the rules and regulations of the Air Transportation Office

HOW WOULD YOU DISTINGUISH THE 3RD FROM THE 4TH ACT? If the aircraft is a PASSENGER AIRCRAFT, • the mere act of carrying or loading explosive, flammable, corrosive or poisonous substances will immediately constitute a violation of RA 6235. If however the aircraft is a CARGO • AIRCRAFT, the loading of these poisonous substances, flammable substances, is allowed because it is a cargo aircraft. The crime will only arise if such act of loading is not in accordance with the rules and regulations of the Air Transportation Office.

HUMAN SECURITY ACT OF 2007 (R.A. No. 9372) Q: What if there is a bus and the bus is parked at Lunetapark and it was full of children. And here comes X, X had different kinds of explosive all over his body. And at gunpoint, entered the said bus and told the children to keep quiet. Thereafter, there is a cartolina on the glass window of the said bus. Written on the cartolina were his demands to the government. His demands were first, that his brother, a member of NPA and who is being incarcerated by the military be released and his second demand, was that funds be transferred to his account. So these were the demands made by X against the government. Because of this, the parents of the children arrived, the media arrived, all the cabinet secretaries arrived. Only the president did not arrive. So everybody was there. They were afraid that

CRIMINAL LAW 2 the children might die so there was chaos in the entire Philippines. It took the members of the military and police 12 hours to subdue X. So after 12 hours, they were able to arrest X. What crime, if any, may be filed against X? A: X will be charged of the crime of terrorism under RA 9372, the Human Security Act of 2007. Under Section 3 of Ra 9372, terrorism is committed when the offender commits any of the following acts punishable under the RPC: a. Piracy b. Rebellion c. Coup d’Etat d. Murder e. Kidnapping and Serious Illegal Detention f. Crimes involving Destruction

If the offender commits any of these acts punishable under the RPC or any of the following acts punishable under special penal laws:

1. Article 122 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters);  2. Article 134 (Rebellion or Insurrection);  3. Article 134-a (Coup d’Etat), including acts committed by private persons;  4. Article 248 (Murder);  5. Article 267 (Kidnapping and Serious Illegal Detention);  6. Article 324 (Crimes Involving Destruction, or under 1. Presidential Decree No. 1613 (The Law on Arson);  2. Republic Act No. 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990);  3. Republic Act No. 5207, (Atomic Energy Regulatory and Liability Act of 1968);  4. Republic Act No. 6235 (Anti-Hijacking Law);  5. Presidential Decree No. 532 (Anti-piracy and Antihighway Robbery Law of 1974); and,  6. Presidential Decree No. 1866, as amended (Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives)

If the offender commits any of these crimes under the RPC and any of the crimes under special penal laws, thereby sowing and creating a condition widespread and extraordinary fear and panic among the populace in order to coerce the government to give in to an unlawful demand, he is liable of terrorism and the penalty is 40 years imprisonment without the benefit of parole under the Indeterminate Sentence Law. So it is the maximum penalty of 40 years. He has to serve it totally. Even if he has already served the


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minimum, he cannot be given the benefit of parole under the Indeterminate Sentence Law. So it is necessary that he must commit any of these predicate crimes and after committing these predicate crimes, where lies the difference? Because his act that sowed and created fear and panic among the populace coupled with an unlawful demand against the government.

Q: So let us say that X was charged with terrorism based on a valid complaint or information a case of terrorism was filed against him before the RTC. However, after trial on the merits, the judge acquitted him. According to the judge, the prosecution failed to prove the guilt of the accused beyond reasonable doubt therefore acquittal for reasonable doubt. Since he is acquitted of terrorism under RA 9372, can he still be prosecuted for his predicate crime of kidnapping and illegal detention because he detained the children for more than 12 hours? Can he still be prosecuted for Illegal and Unlawful Possession of Firearms, Ammunitions or Explosives because he was full of firearms and ammunitions and explosives? A: No more. Because of Section 49 of RA 9372. Under Section 49 of RA 9372, whenever a person has been charged of terrorism, or any act punishable under RA 9372, based on the valid complaint or information, sufficient information and substance to bring about and thereafter he is acquitted or the case is dismissed, he can no longer be subsequently prosecuted for any other felony or offense necessarily included in the crime charged. The crime of kidnapping and serious illegal detention is necessarily included in terrorism because it is one of the predicate crimes. Likewise, violation of PD 1866, as amended Illegal and Unlawful Possession of Firearms is also necessarily included in terrorism because it is one of the predicated crimes in terrorism. Or any of these predicated crimes, he can no longer be charged because they are necessarily included in terrorism. This is known as the ABSORPTION PRINCIPLE in terrorism.

Q: But what if in the same problem, while X was waiting for his demands to be given by the government, he saw a girl and with lewd design, he touched the private parts of the seven-year old girl. Therefore he committed a violation of RA 7610 the Anti-Child Abuse Law. He was acquitted of terrorism. Can the state prosecute him for violation of RA 7610? A: Yes, because it is not among the predicate crimes. It is not a crime necessarily included in the crime of terrorism.

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The offender is a public officer or employee. BUT NOT ALL PUBLIC OFFICERS OR EMPLOYEES can commit arbitrary detention. The public officer of employee can commit arbitrary detention are only those who have been vested with authority to effect arrest and detain a person or at least to cause the detention of a person. Public officers who have been vested with authority to effects arrest and detain a person are POLICE OFFICERS. On the other hand, public officers vested with authority to cause the detention of a person are MEMBERS OF CONGRESS. They can order the detention of a person who has been cited of contempt for failing to accurate their proof, or we have JUDGES they can order the summary detention of persons cited in contempt of court. That he detains a person The second element requires that the offender detains a person. • So when is there detention? There is detention when the • offended party is placed in incarceration. When the offended party is placed behind bars or when the offended party is restrained of his person or liberty. In order to amount arbitrary • detention there must be an act of restraint on the person or liberty of the offended party. Absent that intent, absent the actual restraint on the person or liberty of the offended party – It can be any other crime BUT NOT ARBITRARY DETENTION. Therefore, Supreme Court said that intent to detain must be manifest, it must be evident. Absent that, it can be any other crime but not arbitrary detention. •

2.

TITLE TWO CRIMES AGAINST THE FUNDAMENTAL LAWS OF THE STATE (Articles 124 – 133)

The acts under TITLE TWO are made criminal because they both appease the Bill of Rights. The rights stated under the Constitution and the first of these is under ARTICLE 124, 125 and 126 – Arbitrary Detention.

3 KINDS OF ARBITRARY DETENTION: 1. Arbitrary Detention by detaining a person without legal ground under Article 124 2. Arbitrary Detention by failing to deliver the detained person to the proper judicial authorities within 12, 18 or 36 hours under Article 125 3. Arbitrary Detention by delaying the release of prisoners despite the judicial or executive order to do so under Article 126

ARTICLE124 – ARBITRARY DETENTION BY DETAINING A PERSON WITHOUT LEGAL GROUND ELEMENTS: 1. That the offender is a public officer or employee Who is the offender in Article 124? •


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3.

That the detention is without legal grounds The third element requires that the detention must be without legal ground. So when is detention without legal • grounds under Article 124? 1. When the said offended party was • arrested without a warrant of arrest. 2. When the said offended party was arrested and his arrest and detention does not fall under any of the

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circumstances or a valid warrantless arrest. 3. When he is not suffering from violent insanity or any other ailment which requires compulsory confinement. All of these are not • considered valid grounds for detention. So to reverse, what are the valid grounds for detention? The following are valid grounds for • detention: a. If the person does not receive and detained by virtue of a warrant of arrest. b. If a person was arrested and detained under any of the circumstances for a valid warrantless arrest c. If a person was suffering violent insanity or any illness which requires compulsory confinement. These are the valid ground • for the arrest and detention of a person.

ILLUSTRATION: Q: So if a person, driving his vehicle entered a one way street and in violation of the LTO rules and regulation, was stopped by police officer, his license was taken and gave him a ticket and was bought to the nearest PNP station and was placed behind bars. He was detained. That was 8 o’clock in the morning then the arresting officer left. And on the afternoon, the police officer returned to the police station. Upon his arrival, he immediately released the incarcerated person whom he detained for entering a one way street. Is the said police officer liable for arbitrary detention under Article 124? A: YES, he is liable ofARBITRARY DETENTION. He is a public officer vested with authority to effect arrest and detain a person. If he detained the person, the detention was without legal ground. It is without legal ground because entering a one way street and violating the traffic rules and regulation is not a ground for incarceration. It is not a ground for a person to be placed behind bars. If a person committed a violation of traffic rules and regulation like entering a one way street or beating the red light, he should only be given a ticket. There should not even be a confiscation of license. After that, he should be allowed to leave but that is not a ground for him to be placed under detention. Since the officer detained the person without any legal ground HE IS LIABLE FOR ARBITRARY DETENTION.


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Q: What if X is suspected to be a snatcher and many complaints was filed against him. One time, when the police officers were conducting a patrol they saw X who was perhaps waiting for a ride. When the police officers saw X they immediately arrested X and brought him to the nearest police station. They told X that he is to be investigated for he is said to be a cellphone snatcher. So he was brought to the investigation room however, the investigation officer was not around so the arresting officer told him that he needs to be investigated and that he can leave but he must make sure to come back for purposes of investigation otherwise if he does not come back the next time they see him they will kill him. So because of that, X would get out of the precinct but would immediately return. Are the police officers liable for arbitrary detention? A: NO, the police officers are not liable for arbitrary detention. There is no intent to restrain or detain the person or liberty of X, the offended party. In order to amount to arbitrary detention it is necessary that the intent of the public officer to restrain the person or liberty of the offended party must be manifest and it must be evident. In this case however, it is not. •

Even if there is a threat on the part of the police officer there is however no intent to detain X. What are the crimes if any are the police officer liable for? T h e y c o m m i t t e d G R AV E T H R E AT S • because they threatened to kill X if he would not come back. It is the grave threats that made X come back in the police station.

ARTICLE125 – ARBITRARY DETENTION BY FAILING TO DELIVER THE DETAINED PERSON TO THE PROPER JUDICIAL AUTHORITIES WITHIN 12, 18 OR 36 HOURS ELEMENTS: 1. The offender here is a public officer or employee vested with authority to effect arrest and detain a person 2. That offender has detained a person for some legal ground The second element requires that the offender arrests and detains a person for some legal ground. What are these legal grounds referred to • under Article 125? The legal ground being referred to in • Article 125 is not the fact that the said arrest was made by virtue of a warrant of arrest because if the offended party was arrested by the public officer by virtue of a valid warrant of arrest he does not have

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3.

the obligation to deliver him to the proper judicial authorities. So what are these valid instances in arresting a person? These refer to circumstances of valid • warrantless arrests under Section 5 Rule 112 of the Rules of Court. It requires that a peace officer or a private individual may even without a warrant arrest a person under the following circumstances: a. That in his presence the person to be arrested has committed, is actually committing, or is attempting to commit a crime. This is otherwise known as INFLAGRANTE DELICTO ARREST b. When a crime has in fact just been committed, and t h e p o l i c e o ff i c e r h a s probable cause to believe based on personal knowledge of facts and circumstances that the person to be arrested is the one who committed the crime. This is otherwise known as HOT PURSUIT ARREST. c. When the person to be arrested is a prisoner who has escaped from a penal establishment or a place where he is serving final sentence or temporarily detained while his case is pending, or has escaped while being transferred from one penal institution to another. These are the • circumstances for a valid warrantless arrest. These are the circumstances referred to in the second element of Article 125.

That the offender fails to deliver the person arrested to the proper judicial authorities within 12, 18 or 36 hours. The third element requires that that the offender fails to deliver the person arrested to the proper judicial authorities within 12, 18 or 36 hours.


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What do you mean by delivery? Delivery does not mean that you • really have to deliver the physical body of the person arrested to the court. It means constructive delivery or legal delivery, meaning, the filing of the appropriate case before the proper court. That is delivery to proper judicial authorities - filing of the case before the proper court. The law says that a public officer must deliver to the proper judicial authorities. So judicial authority, what does it mean? The proper judicial authorities refers • to COURTS OF JUSTICES OR JUDGES OF THE COURTS THAT HAS THE POWER TO ORDER THE INCARCERATION OR DETENTION OF A PERSON OR HIS TEMPORARY RESTRAIN UPON P O S T I N G O F A P P R O P R I AT E COMPLAIN.

The FISCAL does not belong to the proper judicial authority because he belongs to the executive branch. The Fiscal is under the Department of Justice and not under the Supreme Court. The head of the Fiscal is Secretary De Lima and the President and not Chief Justice Sereno. That’s why a Fiscal is not within the meaning of a judicial authority. Second, the fiscal may fix or the fiscal may recommend the bail but he does not have the power to fix the bail and allow the accused to go on temporary liberty. Only the judges are allowed to fix the bail and order the temporary liberty of the accused until upon the posting of the said bail.

The law says that a public officer must deliver the person arrested to proper judicial authority within: a. 12 hours, for crimes punishable by light penalties, or their equivalent b. 18 hours, for crimes punishable by correctional penalties, or their equivalent c. 36 hours, for crimes punishable by afflictive or capital penalties, or their equivalent

ILLUSTRATION: Q: What if a person has been arrested Inflagrante Delicto in possession of an unlicensed firearm. Possession of unlicensed firearm is punished by a special penal law (P.D. 1866 as amended). Is the arresting officer required to

CRIMINAL LAW 2 deliver the accused to the proper judicial authorities? Does Article 125 apply even to violation of special penal laws? A: Yes, because the law says “or their equivalent”. 12 hours, for crimes punishable by light penalties, or their equivalent. That means all their equivalent refers to their equivalent even in cases of violation of special penal laws. Therefore, even if the crime committed or the crime for which the offender is being arrested is based on violation of special penal laws, the arresting police officer has the obligation to deliver the person arrested to the proper judicial authorities in consonance with Article 125 of the Revised Penal Code.

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Q: What if the police officers caught X in the actual act of killing Y. So they saw X and Y fighting and they saw X stabbed Y to death. Therefore, X is liable of homicide. They arrested X and that was Saturday, 3 o’clock in the afternoon. Sunday, there is no office. The following day, Monday, happens to be declared a special non-working holiday. Therefore, the police officers were able to deliver X to the proper judicial officer only on Tuesday, 8 o’clock in the morning. They were able to file the case in the Fiscal’s office for purposes of proceedings Tuesday, 8 o’clock in the morning, beyond 36 hours which was required by law. Are the police officers liable for arbitrary detention? A: NO, the police officers are not liable for arbitrary detention. The Secretary of the Department of Justice has made a legal opinion that the said 12, 18 and 36 hours refers to WORKING HOURS. These refer to the time when the courts are open in order to receive the cases to be filed against them. This does not include the crime wherein the courts are closed and they did not receive the complaint or information to be filed against the accused.

ARTICLE126 – ARBITRARY DETENTION BY DELAYING THE RELEASE OF PRISONERS DESPITE THE JUDICIAL OR EXECUTIVE ORDER TO DO SO ELEMENTS: 1. The offender is a public officer or employee 2. That there is a judicial or executive order for the release of the prisoner or detention prisoner, or that there is a proceeding upon a petition for the liberation of such person. 3. That the offender without good/valid reason delays: (1) the service of the notice of such order to the prisoner; or (2) the performance of such judicial or executive order for the release of the prisoner; or (3) the proceeding upon a petition for the release of such person. NOTE: What is punishable is the delay without valid reason, the delay of the release of the prisoner despite the judicial or executive order to do so.


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Example of judicial order for the release of a prisoner let’s say that a person has been charged in court and the public prosecutor failed to present any evidence for consecutive times and no witnesses has ever been presented since the beginning. The judge will dismiss the case and order the release of the accused from jail. This is an example of a judicial order for the release of a prisoner. Or let’s say the judge acquitted the accused then he will order the release of the said accused from jail. How about an example of an executive order for a release of a prisoner? A person was arrested and placed behind bars and proceeding was filed before the fiscal’s office. The fiscal ordered the release of the prisoner. This is an example of executive order for the release the prisoner.

Q: What if X has been charged of two crimes - Illegal sales of dangerous drugs and illegal possession of dangerous drugs? So, two crimes were filed against him. The illegal possession of dangerous drugs was filed before the RTC Branch 6 on the other hand; the illegal sale was filed before RTC Branch 87. Two different courts were filed with. In the illegal possession of dangerous drugs which was filed in RTC Branch 6, no witnesses were ever presented and so the judge immediately declared the dismissal of the case and he ordered that X should already be released from jail. However, the case for illegal sale of dangerous drugs under RTC Branch 87 is still ongoing. The jail warden receives the order coming from the judge RTC Branch 6 that X should be released. The jail warden did not compel. Is the jail warden liable for arbitrary detention under Article 126 Arbitrary Detention by delaying the release of prisoners despite the judicial or executive order to do so? A: NO, the jail warden is not liable for arbitrary detention under Article 126 because there is still another pending case against the said prisoner before another court. Therefore, it is incumbent upon him not to compel with the judge of Branch 6 since there is another case in Branch 87 which is still ongoing. What the law punishes is delay without valid reason for the release of the prisoner.

ARTICLE127 – EXPULSION Expulsion is committed by public officers or employees who shall expel any person from the Philippines or who compels him to change his residence without any lawful authority to do so.Again, the offender is a public officer or employee who acts either: a. By expelling a person from the Philippines b. By compelling a person to change his residence •

What the law prohibits is that if this public officer or employee expels him from the Philippines or

CRIMINAL LAW 2 compels him to change his residence without lawful authority to do so because there are persons who have been authorized by law to deport a person from the Philippines or to compel a person to change his residence. •

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3.

He either enters the dwelling of another against the will of the latter or searching for papers or other effects found therein without the consent of the owner, or after having surreptitiously entered the dwelling, being discovered and asked to leave, he refuses to leave.

The courts on the other hand, have the power to compel a person to change his place of residence. Let’s say the offender is a concubine and the penalty to be imposed to a concubine is destierro. Therefore, the concubine is prohibited from entering a particular place based on the judgment of the court. Now, theprohibited place from which she is prohibited from entering is the place where she lives. She cannot enter the said place therefore; the court is empowered to compel her to change her place of residence because she cannot enter the place wherein her house is situated.

VIOLATION OF DOMICILE (ARTICLE 128, 129, 130) a public officer or employee entered into a • dwelling of another which is not armed with a search warrant different prohibited acts constituting violation of • domicile: I. By entering any dwelling against the will of the owner thereof; or II. By searching papers or other effects found therein without the previous consent of such owner; or III. By refusing to leave the premises, after having surreptitiously entered

ARTICLE128 – VIOLATION OF DOMICILE ELEMENTS: 1. The offender is a public officer or employee •

He was not authorized by a judicial order to enter the dwelling and/or make a search therein for papers or other effects The second element requires that • entering upon the dwelling of another which is not authorized by a judicial order. The judicial order refers to a search warrant

For example, the President has the power to deport or expel a person from the Philippines. Another example is a foreigner who is known to be a persona non grata; the President may order his deportation to his home.

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The third elements provides for the different modes of violation of domicile (These three modes are separate and distinct from each other – do not look for all the three modes in a problem, violation of one of them will bring about violation of domicile)

1. -

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2.

Who is the offender in the violation of domicile? He must be a public officer or employee • acting under color of authority A public officer or employee is said to be • acting under color of authority if he has been vested with the authority to implement a search warrant, but when he entered in the said dwelling, he is not armed with a search warrant. Therefore, he was acting under color of authority. Even if he is a public officer or employee, but • he did not act under color of authority, is liable only, not for violation of domicile, but is either liable for qualified trespass to dwelling or trespass to property because the public officer or employee is acting under his private capacity.


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2.

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3. -

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By entering any dwelling against the will of the owner thereof; or There must a prohibition, an opposition from entering. It can either be an implied or expressed opposition from entering. Example: implied opposition – the door is closed. It can be said that the owner is saying that “No one can enter my house” expressed prohibition – when the owner is inside the house and the officer knocks upon the door and upon seeing the officer, the owner closes the door. if there are sayings – “Do not enter”, “No entry” It does not mean entering without the consent. An entry without the consent is not an entry against the will. When you say entry against the will, there must be an opposition or a prohibition from entering the dwelling.

By searching papers or other effects found therein without the previous consent of the owner; or The consent of the owner matters. Even if the public officer or employee is allowed inside, the fact that he is allowed inside does not mean that he is allowed to conduct the search. He must ask first for the previous consent of the owner before proceeding with the search. Without the previous consent of the owner to conduct the search, any search would be a violation of domicile.

By refusing to leave the premises, after having surreptitiously entered the dwelling it is his refusal to leave the premises that will bring about the violation of domicile, NOT the surreptitiously entering. But it is required that entering must be done surreptitiously. Surreptitious entering means entering the dwelling

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secretly, candidly. Therefore, it is important that he mus-t refuse to leave after being discovered and asked to leave in order to amount to violation of domicile. Mere surreptitious entering will not bring about violation of domicile.

ILLUSTRATION: Q:What if the door of the house was opened, a police officer without being armed with a search warrant, entered the door of the house and went up to the sala. The owner of the house saw him and asked him to leave, and he left. Is he liable for violation of domicile? A: He is not liable for violation of domicile. When the door of the house is open, there is no prohibition; there is no opposition from entering. Anybody may enter even without a search warrant; therefore, since there is no prohibition or opposition from entering, violation of domicile cannot be committed under the first act. Under the second act, it cannot be committed because he did not conduct the search. The third act also not done because the entering of the house is not done surreptitiously.

Q: What if in the same problem, the door of the house was opened, a public officer with the intent to conduct a search warrant entered the house, when he was in the sala, the owner of the house saw him and told him to leave. He did not leave; he just stayed there and sat on the sofa. Is he liable for violation of domicile? A: He is not liable for violation of domicile. Under the first act, is entry against the will? – NO, the door was opened. Therefore, there was no opposition or prohibition from entering. Under the second act, he did not conduct a search. Under the third act, is the entering done surreptitiously? – NO, because the door of the house was opened; therefore, he did not violate any of the following acts amounting to violation of domicile. But he did not leave the house, although the • owner of the house asked him to leave. Is he liable? • Yes. He is liable for unjust vexation. (Nangiinislangsiya) • Although he did not the house, he cannot be liable for violation of domicile because his act does not constitute the acts prohibited by Article 128.

Q: The door of the house was closed, but it was not locked. A police officer without a search warrant opened the door, realizing it was not locked, entered the house and went up to the sala intending to conduct the search. Before he could conduct the search, the owner of the house saw him, and told him to leave and he left. Is he liable for violation of domicile? A: Yes. He is laible for violation of domicile. Even if he left the said place upon being told to do


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it, he is already liable because his entry was against the will of the owner. The door was closed although it was not locked. Therefore, there was an implied opposition, an implied prohibition from entering.When he entered without a search warrant intending to conduct a search is already a violation of domicile

Q: What if the police officer knocked on the door of the house of X. X opened the door, upon seeing the public officers, X allowed them to enter. The police officer told X that they were looking for a stolen car stereo in the neighborhood; we are going to conduct a search in your house. X said, "No, you cannot conduct a search inside my house”. The police officers agreed and left the house. Are they liable for violation of domicile? A: They are not liable. It is not entry against the will. They did not conduct a search. The entry was not done surreptitiously. It does not fall any of the acts, therefore, they are not liable for violation of domicile.

Q: In the same problem, when they told the owner that they were conducting a search for the stolen car stereo, the owner of the house said, “No, you cannot conduct a search. There is nothing stolen inside my house” but the police officers proceeded with the search. A: This time, they are liable for violation of domicile because they made a search without the previous consent of the owner – under the second act of Art. 128

Q: What if in the same problem, the owner of the house told the police officers, “No you cannot conduct a search, there is nothing stolen inside my house” The police officers obliged, they were going to leave the house, obeying the order of the owner. However, on their way out, before they could go out, they saw near the door, a table and on top of it, there were drug paraphernalia, contraband. And so, they seized and confiscated the contraband and then thereafter they leave the house. Are they liable for violation of domicile? Are the evidences confiscated admissible against the owner? A: They are not liable of violation of domicile. When they were told not to conduct the search, they did not conduct the search and they were about to leave, therefore, not liable for violation of domicile. But they confiscated the drug paraphernalia that they saw. Yes, the confiscated drug paraphernalia were admissible against the owner because they were contraband. They are illegal per se. And the police officers saw them without conducting the search, they saw them inadvertently. Even without conducting the search, the police officers would see contraband, narcotics, in their presence, in their plain view, they are mandated by law to seize and confiscate

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the same under the plain view doctrine. So in this case, these drug paraphernalia where under the plain view and therefore under the obligation to seize and confiscate them and these are admissible as evidence against the owner of the house.

Q: What if a police officer was conducting a surveillance of X, a well-known drug pusher, so he was always within the vicinity of the house of X. One time, it was the birthday of X, the gate of the house was open, and the door of the house was opened. The police officer disguised himself as one of the guests and he entered the house together with the flow of the guests. His intention was to conduct a search. He was already about to conduct the search when the owner of the house recognized him. The owner of the house came up to him. “I know you, you are a police officer. Get out of my house right now” and he left. Is he liable for violation of domicile? A: No, he is not liable for violation of domicile. The entry was done surreptitiously, secretly, candidly, he was in disguise. It was not against the will of the owner because the gates and the door were open. He did not conduct the search because the owner saw him before he could do so. The entry was done surreptitiously. He was discovered and ordered to leave, and he left. Therefore, he is not liable for violation of domicile However, upon being discovered and ordered to • leave and stayed in the house. • Here, he is not liable for violation of domicile.

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Under Articles 129 and 130, there is still violation of domicile despite the public officer or employee is armed with a search warrant.

ARTICLE129 – SEARCH WARRANTS MALICIOUSLY OBTAINED AND ABUSE IN THE SERVICE OF THOSE LEGALLY OBTAINED Prohibited acts – violation of domicile is • committed through: I.By procuring a search warrant without just cause • When a public officer or employee conducts a search and the search warrant was an illegally procured search warrant. It was procured without just cause.

SEARCH WARRANT – is an order in writing, issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and to bring to court the particular things to be seized.

Before a search warrant may be issue, the following are the requisites to a valid search warrant:


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1. 2. 3. 4.

5. 6.

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It is required that it is for one specific offense. There must be probable cause The probable cause must be determined personally by the issuing judge The said probable cause was determined by the issuing judge personally through searching questions and answers in writing, under oath or affirmation as the testimony given by applicant of the said search warrant or any witnesses he may produce. The applicant of the search warrant and his witnesses must testify only as to facts personally known to them The said search warrant must specifically state the place to be searched and the place to be seized. If any of these requisites is wanting, then the said search warrant is illegally procured. It is procured without just cause A search conducted by virtue of a search warrant illegally procured without just cause is a kin to a search without a search warrant.

Q: What if the police officer was armed with a search warrant, he procured the search warrant illegally without just cause. The police had an enemy, B, then proceeded to a judge to issue a search warrant testifying under oath, the he is positive under his surveillance that B was in possession of an unlicensed firearm inside his house. The judge believed the police and issued a search warrant against B. The police officer is now armed with a search warrant, and went to the house of B and showed it to B. B, upon reading the search warrant, knew it was maliciously procured, it was procured without just cause. Should B allow the police officer to conduct the search? A: Yes. Even if the said search warrant was procured without just cause, the police officer must be allowed to enter and conduct the search, because of the so-called, REGULARITY OF PERFORMANCE OF DUTY on the part of the judge in issuing the said search warrant. He is armed with a search warrant issued by the judge and therefore, he must allow him to enter his house and to conduct his search. What now would be the remedy of the owner • of the house? • The owner of the house has the following remedies: 1. He can file a motion to quash the said warrant 2. He can file a motion to suppress the evidence that have been confiscated inside the house. • In addition to these motions, he can file a case of violation of domicile against the said public officer who conducted the search. Violation of domicile under Art. 129 because he procured the said search warrant without just cause. • So in other words, the said police officers must be allowed to enter and allowed to conduct the search and the owner of the house shall have the abovementioned remedies thereafter.

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II.By exceeding his authority or by using unnecessary severity in executing a search warrant legally procured

• A search warrant is valid only for a period of 10 days from the date of its issuance appearing on the search warrant.

ILLUSTRATION: A search warrant was dated Dec. 1, a police officer received it on Dec 3. The search was conducted Dec. 13. The said search warrant is already invalid. • When they conducted the said search on Dec. 13, they already exceeded the authority in the said search warrant. Therefore, they are liable of violation of domicile under Article 129.

Q: What if the said search warrant says that they could conduct the search, anytime of the day. They conducted the search at night time. A: They are liable of violation of domicile under Article 129 because they exceeded the authority in the said search warrant.

A search warrant may only be conducted at day time. It may only be implemented at day time, EXCEPTIONS: When there is a specific order in the • search warrant stating that if can be conducted at anytime of the day or night. Absence of such order in the said search • warrant, a search warrant can only be implemented at day time.

Q: What if a search warrant was issued against X, the place to be search is located at 123 valentiono St. They police went there. The house was owned not by X, but by Y. So they look for the house of X, the house of X was 321 valentino St. They presented a search warrant to X. X said, “you cannot conduct a search inside my house. The address in the search warrant is 123 valentinost. and my address is 321 valentinost. Nevertheless, the officers conducted the search and they found the illegal items inside the house. Are the police officers liable of violation of domicile? Are the confiscated admissible evidence against the owner? A: The officers are liable for the violation of domicile. When they conducted the said search, on a house that has a different address from that said search warrant, they exceeded their authority in the said search warrant. The search warrant is so worded, expressly, as to the thing or place to be searched. The police officer cannot exercise discretion. They have to follow what is stated in the search warrant. The moment they did not follow what is stated in the search warrant, then they exceeded the authority. •

In that case, when there is variance between what


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is stated in the search warrant and the actual facts of the case to be searched, the have to go back to the judge that issued the said search warrant and they have to ask or move for the amendment of the said search warrant.

Q: What if the third punishable act under Art. 129 amounting to the violation of domicile, when the public officer or employee exercised excessive severity in the implementation of the said search warrant.

What if a search warrant is issued against X, the police officers went to the house of X, upon reaching the house of X, they showed the warrant to X and he allowed them to enter. The search warrant said that they could search for dangerous drugs, particularly, shabu. In searching for shabu, they turned upside down and deliberately destroyed each and every furniture and appliance inside the house of X. When the wife of X saw this, she told the police officers to stop, but she was slapped twice. she then suffered less serious physical injuries. In deliberately destroying the furniture and appliances of X, the public officers committed malicious mischief. In slapping the wife, they committed less serious physical injuries. What crime/crimes would you file against the police officers? A: You have to file 3 cases: 1. Violation of domicile – because they exercised excessive severity in the implementation of the said search warrant. They need not destroy the property. They need not slap the wife. All of these are excess of the search warrant. Therefore they should be filed in • violation of Art. 129, violation of domicile, for exercising excessive severity. 1. Malicious mischief – for destroying the furniture and appliances 2. less serious physical injuries – for slapping the wife

•

Are you going to file all 3 cases or is it absorbed and must be file within the court? • Violation of domicile cannot absorb malicious mischief nor less serious physical injuries. • Although in reality, these two are merely the manifestations of the excess in the implementation of the said search warrant, they cannot be absorbed, they cannot be complex. Under Art. 129, he expressly prohibits such absorption and such complexity of crimes • Under Article 129, the liability for violation of domicile shall be in addition to the liability attaching to the offender for commission of any other crime. Therefore, if aside from violation of domicile, Another crime is committed by the police officers, they had to be charged with all these cases. Art. 129 prohibits the complexing of a crime. It also prohibits the absorption of this crime, therefore all 3 cases must be filed against the said police officers.

CRIMINAL LAW 2

ARTICLE130 – SEARCHING DOMICILE WITHOUT WITNESSES Prohibited act: • I. By conducting a search in the absence of the owner of the house, or any member of his family, or two witnesses residing in the same locality

ILLUSTRATION: Q: What if under Article 130, violation of domicile is committed when the search was conducted in the absence of the owner of the house, or any member of his family or two witnesses residing from the same locality. A search warrant was issued against X and the police officers went to the house of X. They showed the search warrant to X and they were allowed inside to conduct the search. In conducting the search, the search was witnessed by 2 barangay tanods who came with them, who arrived with them in the house of X. in the conduct of the search, they told the owner of the house, X, that his wife and his two children to remain in the sala while they conduct the search inside the bedroom of X. In conducting the search in the bedroom of X, the search was witnessed by 2 barangay tanods and they found 2 plastic sachets of shabu underneath the pillow inside the bedroom of X. Are the police officers liable of violation of domicile under Article 130? Are the evidence seized admissible against the owner? A: The police officers are liable of violation of domicile under Article 130. Article 130 provides for an hierarchy of witnesses who must be present in the conduct of the search. The law says it must witnessed by the owner of the house, it is only in the absence of the owner of the house that it must be witnessed by any member of his family. It is only in the absence of the owner of the house or any member of his family that there must be 2 witnesses residing from the same locality. In the problem, the owner of the house was there, the members of his family were there but, they were not allowed to witness the said search. Therefore, the said search was conducted in violation of Article 130 and any evidence confiscated will be inadmissible against the owner of the house for being fruits of poisonous tree under the exclusionary rule in Political Law

GALVANTE VS. CASIMIRO The Supreme Court says, “There is no such crime as illegal search. So, what is prohibited only the searching of the dwelling under Article 129. But, in case of search under vehicle or any other places, there is no such thing as illegal search. The remedy is to file an action for damages, a civil action for damages.”


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ARTICLE131 – PROHIBITION, INTERRUPTION AND DISSOLUTION OF PEACEFUL MEETINGS This is committed by a public officer or employee • who commits any of the following acts: I. By prohibiting or by interrupting, without legal ground, the holding of a peaceful meeting, or by dissolving the same. (any peaceful meeting) II. By hindering any person from joining any lawful association or from attending any of its meetings. III. 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. •

For the crime to arise, it is necessary that the meeting that was prevented, interrupted or dissolved must be a peaceful meeting and it must be for any lawful purpose. If the meeting is not a peaceful meeting or if the meeting is not for lawful purpose, a public officer or employee has all the rights to prevent, interrupt or dissolve the said meeting.

This is in the exercise of the freedom of speech, freedom of expression and freedom of assembly. However, these 3 freedoms are not absolute. The Supreme Court has enjoined the power of the State to regulate these meetings through permits.

Before any of these peaceful meetings for a lawful purpose may be held in a public place, there must be a permit coming from the local authority of the place. The permit is only to regulate the said meeting and not to prohibit it. Regulate as to the time, place and to the date, so that the public would not be in inconvenience.

ARTICLE132 – INTERRUPTION OF RELIGIOUS WORSHIP ELEMENTS: 1. This is committed by an offender who is again a public officer or employee. 2. Then there is a religious ceremony or manifestations of any religion are about to take place or are going on. 3. That the offender prevents or disturbs the said religious worship or religious ceremony. If the offender makes us of violence or threats in • committing the crime, such use of violence or threats would not constitute a separate and distinct charge. Rather it is considered as an aggravating or qualifying circumstance which would mean an imposition of a higher penalty.

ILLUSTRATION: Q: So what if there is a barrio fiesta and the priest is about to celebrate the mass. Here comes X and he went to the

CRIMINAL LAW 2 priest and point the gun to the priest. Then the priest was about to celebrate the mass. At first the priest did not mind him. But X intentionally pointed the gun to the head of the priest and said, “I will kill you if you will celebrate the mass!” So the priest did not celebrate the mass and all the faithful went out of the church. What crime if any is committed by X? A: X is liable for interruption of religious worship under Article 132. What about the fact that he pointed a gun at the head of the priest? Would it constitute a separate and distinct crime of grave threats? It will not. The fact that threats were employed in the commission of the crime would only mean the penalty will be imposed in its maximum period. It would be considered an aggravating circumstance in committing the crime of interruption of religious worship. BUT, IT WILL BRING ABOUT A SEPARATE AND DISTINCT CHARGE FOR GRAVE THREATS OR EVEN UNDER LIGHT THREATS.

3.

ARTICLE133 – OFFENDING THE RELIGIOUS FEELINGS ELEMENTS: 1. Committed by a public officer or employee or a private individual. The first element provides for the • offender. The offender may be a public officer or employee or a private individual. This is the only crime under Title Two where the offender can be a private individual. From Article 124 to Article 132 under Title Two, the offender can ONLY be a public officer or employee. The only exception is Article 133, offending the religious feelings wherein the offender can either be a public officer or employee or a private individual. The reason is, whoever may be the offender, a public officer or employee or a private individual, there will be the same offense made on the feelings of the faithful. 2.

The said offender performs acts (1) in a place devoted to religious worship, or (2) during the celebration of any religious ceremony. The second element requires that • the offender performs acts notoriously offensive to the feelings of the faithful. Acts notoriously offensive to the feelings of the faithful are those acts directed against their religious dogma, ritual, faith of the religion, or mocks, ridicule, or scoffs of the said dogma,


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ritual, faith or he attempts to damage the object of veneration of a certain religion. The law says “notoriously offensive”, according to Reyes, it means that it is offensive to all kinds of religion. If the same thing would be done to any religion they will also be offended.

That the acts must be notoriously offensive to the feelings of the faithful. The third element requires that the • said acts notoriously offensive to the feelings of the faithful can be committed only (1) in a place devoted to religious worship, or (2) during the celebration of any religious ceremony. The law uses the word “or” therefore, if the act is done in a place devoted to religious worship, it is not necessary that there be a religious ceremony ongoing. Because it can either be with or without a religious ceremony for as long as the place is devoted for religious worship.

ILLUSTRATION: Q: So what if X (A private individual) entered a catholic church after that the tabernacle was opened and he took out the chalice and inside the chalice was the host which was being received by Catholics during communion. He poured the host in the floor then he destroyed them, spit on them and stepped on them. Is he liable under Article 133? A: YES. The act he performed is notoriously offensive to the feelings of the Catholics. If the same act is done to the object of veneration of the Buddhists or if the same act is done to the object of veneration of the Muslims, they will also be offended. Therefore, it is notoriously offensive to the feelings of the faithful because even if it is applied to other religions they would be offended too. And it was done in a place devoted to religious worship because it is done inside the church even if no religious ceremony is ongoing.

Q: What if inside the PICC there was this art exhibit ongoing and one artist, this was a controversy before right? There was this picture of Jesus Christ and on the picture of Jesus Christ he put a representation of a penis on his face. Is the said artist liable under Article 133 offending the religious feelings? A: NO. He cannot be liable for offending religious feelings under Article 133. Because the PICC is not a place devoted for religious worship and the art exhibit is not a celebration of a religious ceremony. Therefore, since the last

CRIMINAL LAW 2 element is not present even if it offends religious feelings, he cannot be held liable under Article 133 for the absence of the 3rd element.

TITLE THREE CRIMES AGAINST PUBLIC ORDER (Articles 134 – 160)

ARTICLE134 - REBELLION OR INSURRECTION ELEMENTS: 1. That there must be (a) public uprising, and (b) taking arms against the Government 2. That the purpose of the uprising or movement is either – a. to remove from the allegiance to said Government or its laws: 1. the territory of the Philippines or any part thereof; or 2. any body of land, naval or other armed forces; or b. to deprive the Chief Executive or Congress, wholly or partially, of any their powers or prerogatives. The essence or the gravamen of REBELLION is : • The armed uprising against the Philippine Government. So it is a public uprising with the taking up of arms. AN ARMED PUBLIC UPRISING. In case of Rebellion, it can be committed by any • person, or with a participation of the public.

ARTICLE134-A – COUP D’ETAT ELEMENTS: 1. That the offender is a person or persons belonging to the military or police or holding any public office or employment; 2. That it is committed by means of a swift attack accompanied by violence, intimidation, threat, strategy or stealth; 3. That the attack is directed against duly constituted authorities of the Republic of the Philippines, or any military camp or installation, communication networks, public utilities or other facilities needed for the exercise and continued possession of power; 4. That the purpose of the attack is to seize or diminish state power.

•

•

Committed by any person or persons belonging to the military or police or holding any public office or employment, with or without civilian support, carried out singly or simultaneously anywhere in the Philippines for the purpose of seizing or diminishing state power. The essence of COUP D’ETAT is a swift attack directed against the duly constituted authorities, with or without civilians. REBELLION

COUP D’ETAT

E s s e n c e – a n A r m e d Essence – swift attack public Uprising against the against the duly constituted Government authorities

THE LEADERS - Any person who (a) promotes (b) maintains or (c) heads a rebellion or insurrection

THE PARTICIPANTS – Any person who (a) participates (b) executes the commands of others in rebellion or insurrection

Crime of the Masses, it It can be committed with or involves a multitude of without the participation of people the public because it says, with or without civilian support, provided it has been committed by any member of the military, the police or those holding public office or employment. Purpose – Overthrow the Government of the Philippines and replace it with the Government of the Rebels

Purpose – only to diminish state power, to destabilize the government, not entirely to overthrow the government.

Can only be committed by Can be committed not only m e a n s o f f o r c e a n d by means of force and violence violence but also by means of intimidation, threat, strategy or stealth

THE LEADERS - Any person who (a) leads (b) directs or (c) command others to undertake a coup d’etat


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CRIMINAL LAW 2 THE PARTICIPANTS – Any member of the Government who (a) participates (b) executes the commands of others in undertaking a coup d’etat

crime such as murder, if the commission of the crimes was done in furtherance of Rebellion. Therefore, it is necessary that there must be evidence shown in what way the said killing has promoted, fostered the idea of the Rebels. Absent any connection with the commission of the common crime and the furtherance of rebellion, the appropriate charge is only murder, homicide, arson or physical injuries as the case maybe.

Any person who is not in the Government service who (a) Participates (b) Supports (c) Finances (d) abets or (e) aids in the undertaking of a coup d’etat

•

What if common crimes are committed in the course of Rebellion? Common crimes committed in furtherance of, • incident to or in connection with Rebellion are considered as ABSORBED in the crime of Rebellion – known as the THEORY OF ABSORPTION IN REBELLION.

THEORY OF ABSORPTION IN REBELLION Whenever in the course of committing rebellion, • murder, homicide, arson, physical injuries, other common crimes are committed, and these common crimes are in furtherance to, incident to, in connection with Rebellion is considered as absorbed in the crime of Rebellion. Therefore, only one charge of Rebellion should be charged against the said offender.

ENRILE v SALAZAR Senator Juan Ponce Enrile was charged with the Following crimes: 1. charged with Rebellion 2. charged with multipleMurder 3. Multiple frustrated murder 4. violation of PD 1829 – obstruction of Justice because he harbored or concealed then Colonel Gregorio Honasan. •

What did the Supreme Court say? The Supreme Court said: • “only one charge and it should be rebellion. The violation of PD 1829, the multiple murder and multiple frustrated murder are absorbed in Rebellion under the theory of absorption in Rebellion.” The Supreme Court further said that although violation of PD 1829 is a violation of a special penal law, still if it is committed in furtherance of Rebellion, it can still be absorbed in the crime of Rebellion.

ILLUSTRATION: Q: What if a police officer was on his way to the office, suddenly here comes a member of the NPA, he saw the police officer and shot him. What crime is committed? is it Rebellion or murder? Rebellion can only be absorbed common •


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A: In the case, the proper charged would be murder. There was no evidence showing in what way the said NPA has promoted the ideas of the Rebels in killing of the said police officer. Absent of that evidence, it would be a charge of murder and not rebellion. Rebellion is a continuing crime. Therefore, these NPA who rebelled against the Government, to overthrow the Government, that one time uprising is sufficient, they are already considered as rebels because it is a continuing offense.

GONZALES v ABAYA Senator Trillanes and company was charged with 2 crimes, coup d’etat in the RTC of Makati and the violation of articles of war, particularly acts of unbecoming of an officer and a gentleman filed before the military court. While the case was pending in the RTC of Makati, the lawyer filed a petition, a motion, saying that the violation of the articles of war should be absorbed by the case filed before the RTC of Makati. Can Coup d’etat absorb the violations of article of war? • The Supreme Court ruled in the NEGATIVE. • According to the Supreme Court, for the theory of absorption to apply, it is necessary that both cases must be heard or may be heard before the same civilian court. • In this case, the coup d’etat must be heard in a civilian court, RTC of Makati, whereas the violations of the articles of war can be heard only before a military court. Therefore, one cannot absorb the other. • Second reasoning given by the Supreme Court, for the theory to absorption to apply, it is necessary that both crimes are punished by the same penal statute • Third reasoning, violation of the articles of war is sui generis. It is a kind of its own. Nothing compares to it. Therefore, it cannot be absorbed by any other crime.

ARTICLE136 – CONSPIRACY AND PROPOSAL TO C O M M I T C O U P D ’ E T A T, R E B E L L I O N O R INSURRECTION There is CONSPIRACY TO COMMIT • REBELLION when two or more persons come into an agreement concerning the commission of rebellion (to rise publicly and take arms against the Government to any of the purposes of

CRIMINAL LAW 2 rebellion) and decide to commit it. There is PROPOSAL TO COMMIT REBELLION when a person who decides to commit rebellion proposes its execution to another person it is necessary that the other person would not agree, if that person agree, then it is already conspiracy to commit rebellion Conspiracy is a bilateral act which involves two or • more persons, whereas proposal is a unilateral act only one person decides to commit the crime and he proposes its execution to another person. There is a conspiracy to commit coup d’etat the same way of committing it. Also the proposal to commit coup d’etat.

purposes of sedition can either be political in nature or social in nature.

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A R T I C L E 1 3 8 – I N C I T I N G TO R E B E L L I O N O R INSURRECTION Inciting to Rebellion is a crime under the Revised Penal Code. ELEMENTS: 1. It is committed by any person who does not take up arms or is not in open hostility with the Government 2. he incites others to uprise for any of the purposes of rebellion (incite others to the execution of any of the acts of rebellion) 3. by means of speeches, proclamations, writings, emblems, banners or other representations tending to the same end. There is NO SUCH CRIME AS INCITING TO COUP • D’ETAT.

SEDITION (ARTICLE 139) ELEMENTS: 1. That the offender rise (1) publicly, and (2) tumultuously; 2. That they employ force, intimidation or other means outside of legal methods; 3. That the offenders employ any of those means to attain any of the following objectives: 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 officer thereof from freely exercising its or his functions, or prevents 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; and 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 There is a public uprising again but no taking up of • arms but it is done tumultuously by means of force, intimidation or any other means outside the legal methods. •

Therefore, based on the objects of sedition, the


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The purpose of sedition is not to overthrow the government but to go against what the government wants to implement. To go against a new law, an administrative order or public officer or employee. It is a disturbance, a commotion against the lawful command of the authority. The rallies that you see everyday, the rallies against a new law to be implemented, they are considered as ordinary protest or rallies, but the moment they are carried outside of legal methods, by means of force and violence, they will become to be a seditious act.

•

So, sedition is like any other rally, it only becomes seditious because there is the public uprising, done tumultuously, by means of force, violation or any other means outside of the legal method. REBELLION

SEDITION

Both have a public uprising Objective – Political in Objective – can either be nature Political or social in nature To o v e r t h r o w t h e Government and to replace the it with the Government of the Rebels

ARTICLE141 – CONSPIRACY TO COMMIT SEDITION There is a crime conspiracy to commit sedition but • not proposal to commit sedition. A proposal to commit sedition is not a punishable act under the RPC.

ARTICLE142 – INCITING TO SEDITION ELEMENTS: 1. The offender is not a participant (does not take direct part) in the crime of sedition 2. He incites others to uprise for any of the purposes of sedition 3. By means of speeches, proclamations, writings, emblems, cartoon, banners, or other representation tending to the same end. •

•

Inciting to Rebellion or Inciting to Sedition can only be committed by a person who is not a participant in the Rebellion or the Sedition, because if he is a participant in the Rebellion or Sedition, the appropriate charge is Rebellion or Sedition as the case may be. Not merely inciting to Rebellion or Sedition.

Inciting to Sedition is committed not only by inciting others for any of the purposes of sedition. Different acts of inciting to sedition: I.Inciting others to the accomplishment of any of the acts which constitute sedition by means of

CRIMINAL LAW 2 speeches, proclamations, writings, emblems, etc. II.Uttering seditious words or speeches which tend to disturb the public peace III.Writing, publishing or circulating scurrilous libels against the Government, or any of the duly constituted authorities thereof, which tend to disturb the public peace.

USE OF UNLICENSED FIREARM (PD 1866 as amended by RA 8294 otherwise known as the laws on illegal/ unlawful possession, manufacture, dealing in, acquisition or disposition of firearms, ammunition or explosives or instruments used in the manufacture of firearms, ammunition or explosives)

See: People vs. Ladjaalam and Celino Sr. vs. People Under Section 1 – If the use of an unlicensed • firearm is in furtherance of, incident to, or in connection with the crime of rebellion or sedition, or attempted coup d’état, such use of unlicensed firearm shall be absorbed in the crime of rebellion, sedition or attempted coup d’état. •

•

•

Therefore, the use of unlicensed firearm in case of rebellion or sedition, or attempted coup d’état will not bring about a separate or distinct charge. There is only one crime that is rebellion or sedition, or attempted coup d’état. The use of unlicensed firearm is not even an aggravating circumstance. It is absorbed in the crime of rebellion or sedition, or attempted coup d’état. Under the same Section 1 of PD 1866 as amended by RA 8294, if the use of an unlicensed firearm is in the crime of homicide or murder, as the case may be, the use of unlicensed firearm shall be considered as an aggravating c i r c u m s t a n c e . S o i n t h e l a w, i t i s a n AGGRAVATING CIRCUMSTANCE. W H AT K I N D O F A G G R AVAT I N G CIRCUMSTANCE? As decided by the Supreme Court in number • of cases, it is a SPECIAL AGGRAVATING CIRCUMSTANCE which cannot be offset by any mitigating circumstance. The Supreme Court also held that the use of the word “homicide or murder” under Section 1 is in its generic sense, therefore, whatever be the kind of killing for as long as the unlicensed firearm is used, such use of unlicensed firearm is considered as a SPECIAL AGGRAVATING CIRCUMSTANCE.

ILLUSTRATION: Q: So if a son had an argument with his father, in the course of the argument with his father, the son killed the


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father, the firearm was recovered. What crime or crimes would you file against the son? A: The son is liable of the crime ofPARRICIDE, for having killed his own father. The use of unlicensed firearm shall be considered as a SPECIAL AGGRAVATING CIRCUMSTANCE. Because as held by the Supreme Court, the use of the word “murder” is in its generic sense, therefore it includes any kind wherein the imposable penalty is RECLUSION PERPETUA TO DEATH such as Parricide.

Under Section 1 of PD 1866 as amended, it also provided that a person can only be held liable of illegal possession of unlicensed firearm provided that no other crime was committed by the person arrested. It is necessary that no other crime was committed by the person arrested.

PEOPLE VS. LADJAALAM The police officers armed with a warrant of arrest went to the house of WalpanLadjaalam to effect the warrant of arrest. WalpanLadjaalam, upon seeing the police officers, fired shots at the officers. Hence, he was charged with direct assault with multiple attempted homicide. Aside from that, he was also charged with illegal possession of unlicensed firearms. He was convicted of both crimes before the Regional Trial Court. On appeal before the Supreme Court, SC said the illegal possession of firearms case should be dismissed. He should be acquitted in the said case because he committed another crime, and that is, DIRECT ASSAULT WITH MULTIPLE ATTEMPTED HOMICIDE.

What about in the case of CELINO, SR. VS. PEOPLE? In this case, it was election time, there was a COMELEC gun ban. A person was found in possession of an unlicensed firearm. Arrested, he was charged of 2 crimes: (1) violation of the COMELEC gun ban, and (2) illegal possession of unlicensed firearms. During the arraignment for the violation of the COMELEC gun ban, he pleaded not guilty. However, during the arraignment for illegal possession of an unlicensed firearm, he filed a motion to quash the information. According to him, he cannot be charged of illegal possession of an unlicensed firearm because the law says that you can only be charged of illegal possession of an unlicensed firearm provided that no other crime is committed by the person arrested. He said here, he committed violation of COMELEC gun ban, therefore, he can no longer be liable for violation of PD 1866 that is Illegal Possession of Unlicensed Firearm. IS HIS CONTENTION CORRECT? •

CRIMINAL LAW 2 •

His contention is wrong because according to the Supreme Court, when the law says “provided that no other crime is committed by the person arrested”, the word “committed” means that there is already a final determination of guilt – a final conviction of guilt based on a successful prosecution or a judicial admission. Therefore, the word “committed” means he has already been held guilty beyond reasonable doubt a final judgment.

• In the case of CELINO SR., he was not yet convicted. He was only being prosecuted. He was only being charged of illegal possession of unlicensed firearm. Therefore, both cases can proceed. He can be charged both of illegal possession of unlicensed firearms and violation of COMELEC gun ban. However, the moment he is convicted of violation of COMELEC gun ban, he should be acquitted of illegal possession of unlicensed firearm, because this time, the law says provided that no other crime is committed by the person arrested. Therefore, a final conviction is necessary before the illegal possession of unlicensed firearm may be dismissed or he may be acquitted of the same. So that is the relation of PD 1866 to sedition, rebellion and coup d’état.

ARTICLE143 – ACTS TENDING TO PREVENT THE MEETING OF THE ASSEMBLY AND SIMILAR BODIES Punishes acts preventing the meeting of Congress • The crime is committed if there is a projected or • actual meeting of the Congress and the offender, by means of force or fraud, prevents such meeting The offender here is any person: he may be a • private individual, public officer or employee It is necessary that the offender prevents the • meeting of the Congress or any of its committees, or constitutional committees or any provincial city or municipal board.

ILLUSTRATION: Q: So what if there is a meeting of the Sangguniang Panlungsod. It was being presided by the Vice Mayor as the presiding officer of the city council. During the session of the SangguniangPanlungsod, here comes the mayor together with some police officers. They entered the session of and disturbed and prevented the said meeting by force. What crime, if any, was committed? A: It is the violation of Article 143 – ACTS TENDING TO PREVENT THE MEETING OF CONGRESS AND SIMILAR BODIES.

ARTICLE144 – DISTURBANCE OF PROCEEDINGS Punishes disturbance of proceedings • In disturbance of proceedings, there is a meeting • of Congress or of any of its committees or subcommittees, constitutional commissions or


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committees or divisions thereof, or of any provincial board or city or municipal council or board The offender either disturbs any of such proceedings or he behaves while in the presence of such proceedings in such a manner as to interrupt the proceedings or impair the respect due it. So here, it is necessary that the offender, who was present in the meeting, either he disturbs the said proceeding, or while being there, he performed an act which impair the respect due to them or which interrupted the said proceeding

ILLUSTRATION: Q: The FREEDOM OF INFORMATION BILLwas on the committee level. It was votation time. On the right side of the said place or meeting, there were some observers or people who were coming from the media. On the left side, there were ordinary people who do not agree on the freedom of information bill. It was time to vote for the passage of Freedom of Information bill, the members of the committee were voting when suddenly some members of the media immediately pulled out a placard and shouted: “YES TO FREEDOM TO INFORMATION BILL!”Are they liable of any crime? A: YES. They are liable of disturbance of proceedings under Article 144. Because while in the presence of the said meeting, they behaved in such a manner as to interrupt the proceedings, or impair the respect due it.

ARTICLE145 – VIOLATION OF PARLIAMENTARY IMMUNITY Punishes violation of parliamentary immunity • There are TWO (2) ACTS PUNISHED IN • VIOLATION OF PARLIAMENTARY IMMUNITY: 1. Penalty: Prision Mayor – committed by any person who by means of force, intimidation, fraud or threat, or any other means and by said means, he tried to prevent any member of the Congress either from attending any meeting of the Congress or its committees or subcommittees, constitutional commissions or committees or divisions thereof , from expressing his opinions or casting his vote can be committed by • anyone (private individual, public officer or employee) 2.

Penalty: PrisionCorreccional – can only be committed by a public officer or employee who shall, while the

CRIMINAL LAW 2

Congress is in regular or special session, arrest or search any member thereof, except in case such member has committed a crime punishable under this Code by a penalty higher than prision mayor. Offender should be • only a public officer or employee and not any individual because any individual cannot make a search or arrest a member of the Congress It is necessary that at • the time of the arrest, the member of Congress, the Congress must be in its regular or special session. Likewise, it is • necessary that the said member of Congress has committed a crime which is not higher than Prision Mayor.

ILLUSTRATION: Q: How about in the case of Panfilo Lacson? A: The case against Sen. Lacson was fortunately dismissed by the Court of Appeals. But let us say, it is not dismissed by the Court of Appeals, he was being charged of double murder – Dacer-Corbito double murder slay. He went into hiding. Let us say that he made his appearance. Can he be arrested even if the Congress is in regular or special session? YES. Because the crime committed by him is punishable by a crime committer higher than prision mayor. It is punishable by reclusion perpetua. Therefore, had it not been dismissed by Congress and he apparently appeared and the Congress is in regular or special session, he could be arrested.

Q: What if a Congressman is charged with the crime of libel before the RTC. The RTC issued a warrant of arrest against the Congressman. The police officers armed with a warrant of arrest went inside the walls of Congress and they arrested the said Congressman. Are the police officers liable under this Article? A:YES, they are liable for violation of parliamentary immunity under the second. Because at the time the Congress is in its regular session and they arrested the said Congressman, Libel under Article 355 is punishable only by Prision Correcional in its minimum and medium


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period, therefore it is below Prision Mayor, hence, the Congressman cannot be arrested while the Congress is in its regular or special session.

Q: What if Congressman A is charged with the crime of attempted homicide. The fiscal found probable cause, the case was filed in court. The court agrees with the fiscal and a warrant of arrest was issued against Congressman A. The warrant of arrest was issued by the judge on December 24, the police officers had possession of the said warrant of arrest on December 25, on Christmas Day. While Congressman was inside his house, the police officers arrived and arrested the said Congressman for having been charged of the crime of Attempted Homicide. The penalty for Attempted Homicide is Prision Correcional because under Article 249, the penalty for Homicide is Reclusion Temporal and the attempted is two degrees lower, one degree is Prision Mayor, two degrees lower is Prision Correcional, therefore, the penalty to be imposed in this Attempted Homicide is Prision Correcional. So the police officers armed with a warrant of arrest went inside the house of the Congressman and arrested him on Christmas Day, December 25, are the police officers liable for violating parliamentary immunity under Article 145? A:YES, they are liable for violation of Parliamentary Immunity.Because during Christmas break or during Holy week break or any other kind of break, Congress is still in its regular session. Because as stated in Political Law, in Constitution, when does Congress start? 4th Monday of July, that is when the President states his SONA. When does Congress ends? 30 days before the start of Congress. Therefore, during Christmas break or during Holy week break or any other break, the Congress is still in its regular session. Any arrest of a member of Congress during this time, if the said member of Congress has not committed a crime where a penalty is higher than Prision Mayor, shall be punished as violation parliamentary immunity under Article 145.

ARTICLE146 – ILLEGAL ASSEMBLY There are 2 KINDS OF ILLEGAL ASSEMBLY: • I.Any meeting attended by armed persons for the purpose of committing any of the crimes punishable under this Code ELEMENTS: 1. That there be a meeting, a gathering or group of persons, whether in fixed place or moving 2. The meeting is attended by armed persons 3. The purpose of the meeting is to9 commit any of the crimes punishable under the Code

CRIMINAL LAW 2

•

•

•

•

In case of illegal assembly, it is only necessary that there be a meeting, the meeting must be attended by armed persons, under the first mode. In here, when it says “armed persons”, it is not required that all those persons present in the meeting must be with arms. It suffices that one, two or more, or some of them would be with arms. When we say “arms,” it does not only mean firearms, it refers to any things, knives, stones, anything which can cause violence or injury to another person. It is necessary however, that the purpose of the meeting is unlawful – that is to commit any of the crimes punishable under the RPC. Under the second mode of committing illegal assembly, again there is a meeting, and there is no requisite that those in attendance must be armed, therefore, they may or may not be with arms. But it is requires for the crime to arise that the audience must be incited to commit treason, rebellion, or insurrection, sedition or assault upon a person in authority or his agents. Otherwise, the crime will not arise.


In case of illegal assembly, the organizers or leader of the meeting will be criminally liable, as well as the persons merely present in the said meeting. Under Article 146, first paragraph, last sentence – it is provided that persons who are merely present at the meeting shall be punished by Arresto Mayor, unless they are armed, the penalty shall be Prision Correcional, therefore, whether you are armed or not, you can be held criminally liable for illegal assembly, it will only differ in the penalty. o If you are armed - Prision Correcional o Not armed - Arresto Mayor (lower)

•

II.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 agents ELEMENTS: 4. There is a meeting, a gathering or group of persons, whether in fixed place or moving 5. The audience, whether armed or not, is incited to the commission of the crime of treason, rebellion, or insurrection, sedition or direct assault The said gathering of • men or men, may or may not be armed. It is not required that they be armed. Provided that the audience where incited to commit treason, rebellion, or insurrection, sedition or assault upon a person in authority or his agents)

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•

ARTICLE147 – ILLEGAL ASSOCIATIONS WHAT ARE ILLEGAL ASSOCIATIONS? 1. Associations totally or partially organized for the purpose of committing any of the crimes punishable under the Code 2. Associations totally or partially organized for some purpose contrary to public morals In case of illegal associations, it is necessary that • there be a formation of a group, not merely a meeting and in the said association, not only the members of the association should be penalized, but also the founders, directors and president of the said association or organization should be held criminally liable.

ILLEGAL ASSEMBLY

ILLEGAL ASSOCIATION

the purpose will always be a violation under the RPC. Even under the second mode – inciting to commit treason, rebellion, or insurrection, sedition or assault upon a person in authority or his agents

the purpose of the association may be for purpose of committing crimes violating the RPC or even in violation of special penal laws, provided that it is in violation of special penal law, it must be against public morals

Necessary that there is an actual meeting or assembly

Not necessary that there be an actual meeting

Meeting and the attendance at such meeting are the acts punished

Act of forming or organizing and membership in the association are the acts punished

ILLUSTRATION:

CRIMINAL LAW 2 Q: So what if A, B and C gathered 20 persons and proposed to them the idea of committing simultaneous bank robbery all over Metro Manila, so they will commit robbery in 4 banks simultaneously. So these 20 men agreed to the said commission of bank robbery, and after they have come to the agreement, here comes the police, the police got a tip from an informer, the police arrived and they were all arrested. What crime or crimes if any should they be charged of? A:They could not be charged of any crime. There is no such thing as conspiracy to commit robbery. Because in robbery, robbery is only a mode of committing the crime, it is not a crime by itself, unlike in case of treason, rebellion, there is such a crime of conspiracy to commit treason, conspiracy to commit rebellion, and they are punished by such acts. There is no such crime as conspiracy to commit robbery. So here, conspiracy is a mere preparatory act which is not yet punishable by law. For them to be punished, it is necessary that they must at least perform an overt act directly connected to bank robbery. So here, they just merely conspired to commit robbery without the performance of any overt act directly connected to robbery. Hence, they are not criminally liable. What they did is only a preparatory act not directly connected to robbery. Q: Why not illegal assembly? A: Because in the problem, it is not mentioned that the persons were armed. Also, the crime of bank robbery is not among the crimes mentioned in the second act. Q: Why not illegal association? A: Because what they did was only a mere meeting, it was not an organization or association. Therefore, they are not liable of any crime. -

LET US ADD FACTS TO THE PROBLEM. Q: Let us say A, B, and C gathered 20 men – 10 were armed and the other 10 were not armed. Again, they conspired and agreed to commit simultaneous bank robbery all over Metro Manila. After their agreement here comes the police officers, the police officers arrested them. Of what crime or crimes may the police officer file against them? A:They should be charged of illegal assembly under the first act. They have the gathering of men and their purpose is to commit a crime punishable under the RPC which is robbery and it is attended by armed persons, even if only 10 were with arms, still it is considered as illegal assembly. Because the law does not require a number as to the persons who should be armed. So, all of them should be held criminally liable. A, B and C, as leaders or organizers of the said meeting, are liable for illegal assembly. Those persons who are armed, the penalty is higher than


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those who are not armed. Prision Correcional – if they are armed Arresto Mayor – if they are not armed

Q: What if A, B and C gathered 1000 men and women. Their intention was to incite the people to uprise against the government to overthrow the present administration. These 1000 men and women arrived in the said designated place. These 1000 men and women were arranging the chairs when suddenly here comes the police officers who got a tip about the said meeting. The police officers immediately arrested A, B and C and the 1000 men and women. What crime or crimes if any may these 1000 men and women be charged of? A:They have not committed any crime. It cannot be under the first act of illegal assembly because the said 1000 men and women were not armed. It cannot be under the second act of illegal assembly, because for one to be liable under this act, note that even if not all of them need not to be armed, it is required that the audience must be incited to commit treason, rebellion, or insurrection, sedition or assault upon a person in authority or his agents. Here the intention of A, B and C is to incite them to commit rebellion, BUT there was no statement in the problem that they were indeed incited to commit rebellion. In fact, they were just arranging the chairs, the meeting was only about to begin. Therefore, they have not yet committed any crime.

Q: What if the jueteng lords of Southern Tagalog gathered, they gathered in Batangas. So their purpose was to define ways and means to propagate jueteng considering that the government would not want to legalize jueteng, their decision was define ways and means to propagate jueteng by using minors, those 15 years of age or below as kubrador in the case of jueteng, so that was the purpose of their meeting. In the said meeting, they elected their wouldbe president, vice president, treasurer, etc. So they formed an organization, an association and they said that at the end of the month, they would meet and define ways and means to propagate jueteng. The police officers arrived and they were all arrested. But they are not with arms, it is not mentioned that any of them were with arms. A:The crime committed is illegal association under Article 147. It is an association totally and partially organized for some purpose contrary to public morals. Jueteng is in violation of PD 1602, illegal gambling as amended and it is against public morals because it has not yet been legalized by law.

ARTICLE148 – DIRECT ASSAULT The two forms in committing the crime of direct assault • under Article 148 are:

CRIMINAL LAW 2 I.

Without public uprising, by employing FORCE or INTIMIDATION for the attainment of any of the purposes enumerated defining the crimes of rebellion and sedition. The intention of the offender is to commit • any of the purposes of rebellion or sedition. PURPOSES OF REBELLION: • 1. To remove from the allegiance to the Government or its laws: a. t h e t e r r i t o r y o f t h e Philippines or any part thereof; or b. any body of land, naval, or other armed forces; or 2. To deprive the Chief Executive or Congress, wholly or partially, of any of their powers or prerogatives. PURPOSES OF SEDITION: • 1. To PREVENT the promulgation or execution of any law or the holding of any popular election; 2. To P R E V E N T t h e N a t i o n a l Government, or any provincial or municipal government or any public officer thereof from freely exercising its or his functions, or PREVENT the execution of any administrative order; 3. To INFLICT any act of hate or revenge upon the person or property of any public officer or employee; 4. To COMMIT, for any political or social end, any act of hate or revenge against private persons or any social class; 5. To DESPOIL, for any political or social end, any person, municipality, province, or the National Government of all its property or any part thereof NOTE: The law says that there is no public uprising, therefore whenever there is actual commission of rebellion or sedition, direct assault can never be committed because the element of direct assault in whatever form is that there be no public uprising, on the other hand, a necessary element in the crime of sedition or rebellion is there be public uprising.

ELEMENTS: 1. T h e o f f e n d e r e m p l o y s f o r c e o r intimidation 2. AIM of the offender is to attain any of the purposes of the crime of rebellion or any of the objects of the crime of sedition


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3. II.

There is no public uprising

Without public uprising, by ATTACKING, by EMPLOYING FORCE, or by SERIOUSLY INTIMIDATING or SERIOUSLY RESISTING any person in authority or any of his agents, while in the performance of official duties, or on the occasion of such performance. Most popular form of direct assault • ELEMENTS: 1. The offender a. Makes an attack, b. Employs force, c. Makes a serious intimidation, or d. Makes a serious resistance • If the offended party is a person in authority, the attack or the employment of force need not be serious because under Article 148, the mere act of laying of hands in the person in authority is already qualified direct assault. Therefore, the mere act of pushing a person in authority is already qualified direct assault because the offender already laid hands upon a person in authority. Hence, it need not be s e r i o u s . H o w e v e r, i f t h e offended party is a mere agent of a person in authority, it is necessary that the employment of force must be serious. The reason is that in order to show defiance of law against a mere agent of person in authority, it is necessary that the attack or force employed must be serious in nature. • If what has been done is intimidation or resistance, to amount to direct assault, it must always be serious whether the offended party is a person in authority or a mere agent of a person in authority. 2.

The second element requires that the assault is against a person in authority or an agent of a person in authority Who are these so-calledpersons in • authority? (Art 152) 1. Any person directly vested with jurisdiction, whether as an individual or as a

CRIMINAL LAW 2

2. 3.

4.

•

3.

member of some court or government-owned and controlled corporation, board or commission A barangay captain and a barangay chairman Teachers, professors, or persons charged with the supervision of public or duly recognized private schools, colleges or institutions Lawyers while engaged in their professional duties or while in the act of their professional duties

•

Who is an agent of a person in authority? (Art 152, par 2) A person who, by direct • provision of law, by election or by appointment by c o m p e t e n t a u t h o r i t y, i s charged with the maintenance of public order and the protection and security of life and property ( e . g . p o l i c e o ff i c e r, councilors). Likewise, it is stated that any person who comes to the aid of a person in authority is deemed an agent of person in authority.

•

The third element provides that at the time of the assault, the person in authority is engaged in the performance of his official duties or the attack was on occasion of such performance of official duty. Direct assault can be • committed whether the public officer or employee. Direct assault can be • committed whether the public officer or agent of a person in authority is in the engaged in the performance of his official duties or on occasion of such performance. If a person in authority or his • agent is engaged in the performance of his official duty at the time of the assault, regardless of the motive of the offender, direct assault will always arise. Whether there is a personal vendetta, whether it is a


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4.

5.

public reason or whatever reason, there is always direct assault. There is defiance of authority because the person in authority or his agent is actually engaged in the performance of official duty But if the person in authority or his agent is not engaged in the performance of his official duty at the time of the assault, motive on the part of offender becomes material. You have to determine the motive on the part of the offender. If the motive on the part of the offender is a personal vendetta, the crime c o m m i t t e d i s m u r d e r, homicide, serious physical injuries or less serious physical injuries, as the case may be. But if the motive is by reason of the authorities’ past performance of his official duty, the crime committed is still direct assault. The phrase “on occasion of such performance” means that the said assault was by reason of the past performance of official duty. So “on occasion” means it is by reason of the past performance of official duty.

The fourth element provides that the offender knows him to be a person in authority or an agent of a person in authority. So it is that the offender knows him to be a person in authority because otherwise, he cannot be said that he defied the law, he defied the authority. In the first place, he didn’t know that the person he is attacking is a person in authority or an agent of a person in authority.

The fifth element requires that there be no public uprising.

QUALIFIED DIRECT ASSAULT There are three circumstances which will qualify direct assault:

CRIMINAL LAW 2 1.

When the assault is committed by means of a weapon; WEAPON - firearms, knives or any other • items which will inflict injury.

2.

When the offender is a public officer or employee; So when a public officer or employee attacks • a person in authority, it is always qualified direct assault.

When the offender lays hands upon a person in authority Will only lie if the laying of hands is upon a • person in authority. Any of these three circumstances will qualify direct assault. 3.

NOTE: The first two qualifying circumstance affects both a person in authority or agent of a person in authority. However, the third qualifying circumstance (laying hands upon a person in authority) will only lie if the offended party is a person in authority. Mere laying of hands to an agent of person in authority is not qualified. It will only qualify if the laying of hands is upon a person in authority.

COMPLEX CRIME OF DIRECT ASSAULT: Whenever the crime of direct assault is committed, and there is a resulting felony (e.g. death, physical injuries), you always complex it. Under Article 48, you should always complex it because from a single act, two or more grave or less grave felonies had resulted. Under Article 48, Book I, you have to complex it. So it could be: o Direct assault with Murder o Direct assault with Homicide o Direct assault with Serious Physical Injuries o Direct assault with Less Serious Physical Injuries •

But if the resulting felony is only SLIGHT PHYSICAL INJURIES, you cannot complex it. It is prohibited under Article 48 because:

1.

2.

It is only a light felony. Under Article 48, you can only complex two or more grave or less grave felonies but not a light felony. Slight physical injury or light felony is already absorbed in direct assault because whenever you assault somebody, definitely, somehow, any injury would happen to him. That is why it is already absorbed in direct assault.

ILLUSTRATION: Q: What if the city mayor attended the flag ceremony. It was a mandate. So there was this flag ceremony attended by the city mayor. After the flag ceremony, the mayor went to the platform and was making an announcement to the


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city hall employees. Suddenly here comes X. X went near the mayor and shot the mayor on the head. The mayor died. What crime is committed by X? A: QUALIFIED DIRECT ASSAULT WITH MURDER. The city mayor was engaged in the performance of his official duty at the time of the assault therefore it is direct assault. Because the city mayor was engaged in the performance of his official duty regardless of the motive of X, even if it is by mayor’s past performance of official duty or by reason of personal vendetta, regardless of the motive of X, the offender, since the mayor is engaged in the performance of his official duty, it is direct assault. Now, the mayor died. Therefore there is a resulting felony of murder because obviously there was treachery; therefore, it is direct assault with murder. Now, the offender made use of a weapon, he made use of a pistol gun, a firearm which is a qualifying circumstance, therefore, the crime committed is QUALIFIED DIRECT ASSAULT WITH MURDER. (EXAM TIP: the corresponding explanation must be complete—what is the qualifying circumstance, what is direct assault, what is a complex crime)

Q: What if the city mayor has just attended a Sunday mass. He and his wife and children were getting out of the church when suddenly here comes X. X, onboard the motorcycle went straight to the city mayor and fired at the head of the city mayor. The city mayor died. It was found that X was a former employee of the city hall, who was dismissed by the city mayor because he engaged in an anomalous transaction. What crime is committed by X? A : Q U A L I F I E D D I R E C T A S S A U LT W I T H MURDER.The city mayor was not engaged in the performance of his official duty. Since the city mayor was not engaged in the performance of his official duty, he is a person in authority, you have to know the reason, the motive of the offender. The offender was a city hall employee who was dismissed by the city mayor, therefore the motive was by reason of the past performance of the said person in authority. So it is by reason of the past performance of his official duty, the attack, the firing was done on occasion of such performance of official duty therefore the crime committed is direct assault. The mayor died. Obviously there was treachery therefore it is direct assault with murder. The offender made use of a firearm, which is a qualifying circumstance in direct assault therefore it is QUALIFIED DIRECT ASSAULT WITH MURDER.

CRIMINAL LAW 2 Q: What if in the same problem, here comes X, the mayor was coming out of the church, X shot the city mayor. Now X happened to be a former gardener who was dismissed from the service of the household because he performed a wrongful act while gardening. Therefore his reason was a personal vendetta. What crime is committed by X? A: X committed a crime ofMURDER. Obviously, there was treachery on the part of X. It is not direct assault because the mayor was not engaged in the performance of his official duty and the reason behind the assault was personal vendetta. Therefore it cannot be said that the attack was on occasion of such performance of official duty.

Q: What if the judge has just rendered judgment. After rendering the judgment, after finding the accused guilty beyond reasonable doubt, the accused got mad. He jumped on the judge and he boxed the judge several times. The court interpreter, the person nearest to the judge, came to the aid of the judge. This angered the accused. The accused got mad at the court interpreter and he boxed the court interpreter as well. Thereafter the security guards arrived and took away the said accused. The judge suffered serious physical injuries whereas the court interpreter suffered slight physical injuries. What crime or crimes is/are committed by the accused, first against the judge, and second against the court interpreter? A: As against the judge, the accused is liable of the crime of QUALIFIED DIRECT ASSAULT WITH SERIOUS PHYSICAL INJURIES. The judge is a person in authority under Article 152. He was engaged in the performance of his official duty at the time of the assault therefore the crime committed is direct assault. It has a resulting felony, serious physical injuries; therefore it should be direct assault with serious physical injuries. The accused in boxing the judge, laid hands upon a person in authority therefore it is QUALIFIED DIRECT ASSAULT WITH SERIOUS PHYSICAL INJURIES.

As against the court interpreter, the accused is liable of the crime of DIRECT ASSAULT. At the time the court interpreter came to the aid of a person in authority, who was the victim of direct assault. Note under Article 152, any person who comes to the aid of a person in authority is deemed an agent of a person in authority therefore, when the court interpreter came to the aid of the said judge, who was a person in authority, he became an agent of a person in authority. And under Article 148, any attack on an agent of a person in authority is direct assault. Therefore the crime committed is direct assault. The said interpreter suffered slight physical injury. You cannot complex it because it is only a light


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felony. Therefore it is only direct assault not complex. The said accused laid hands upon the court interpreter, would you qualify it? No, because he is mere agent of person in authority. Therefore the crime committed is only direct assault.

ARTICLE149 – INDIRECT ASSAULT Indirect assault can be committed only when a • direct assault is also committed ELEMENTS: 1. An AGENT of a person in authority is the victim of any of the forms of direct assault defined in Article 148. 2. A person comes to the aid of such agent 3. Offender makes use of force or intimidation upon such person coming to the aid of the agent.

Q: What if a police officer was manning the traffic and it was a heavy traffic so the vehicles were stuck. What if one of the owners of the vehicles got mad at the police officer and he went straight to the police officer, who at the time has no pistol, and boxed the police officer. While he was boxing a police officer a pedestrian saw the incident .the pedestrian came to the aid of the police officer. This angered the owner of the vehicle so he, too, boxed the said pedestrian. The said pedestrian suffered slight physical injuries while the police officer suffered less serious physical injuries. What crime or crimes is/are committed by the said owner of the vehicle against: a. The police officer b. The pedestrian? A: a. DIRECT ASSAULT WITH LESS SERIOUS PHYSICAL INJURIES. The said owner of the vehicle boxed the said police officer. The police officer is an agent of a person in authority under Article 152 because he was charged with the maintenance of public order. The police officer is in the actual performance of his official duty at the time of the assault therefore the crime committed is direct assault. There is also a resulting felony which is less serious physical injuries, a less grave felony; therefore we have to complex it, direct assault with less serious physical injuries. The offender laid hands upon the police officer, however, laying of hands will not qualify because he is a mere agent of person in authority; therefore the crime committed against the police officer is direct assault with less serious physical injuries. (NOTE: an MMDA officer is also an agent of a person in authority because he is charged with the maintenance of public order and the protection and security of life and property)

CRIMINAL LAW 2 b. INDIRECT ASSAULT under Art 149. An agent of a person in authority was the victim of direct assault. A person came to his aid who is the pedestrian. When the pedestrian came to the aid of this agent of person in authority, he did not become an agent of a person in authority under Art 152 because under Art 152, a person would only become an agent of a person in authority if he came to the aid of a person in authority. Here, the pedestrian merely came to the aid of an agent of a person in authority who is the police officer. Therefore, when the pedestrian came to the aid of the police officer, he did not become also an agent of a person in authority; as such, the crime committed is INDIRECT ASSAULT. When the pedestrian came to the aid of the police officer, force and intimidation were employed against him so the crime committed by the owner of the vehicle against the pedestrian is indirect assault. Are you going to complex it to the crime • of slight physical injuries? No, because it is absorbed and it is • only a light felony.

Under Article 149, INDIRECT ASSAULT is committed if a person in authority or an agent of a person in authority is the victim of direct assault. Any person who came to his aid and that person was employed with force or intimidation by the offender. Why is it in the given problem, when the person • under attacked is a person in authority and when someone came to his aid, and that someone was also attacked, the crime committed is direct assault against that someone. But when the victim of direct assault is a mere agent of a person in authority, and someone came to his aid, and that someone was also attacked, the crime is indirect assault. The reason is that the Congress • amended Article 152 without correspondingly amending Article 149. Based on the amendment made by • Congress in Article 152, it is stated that any person who comes to the aid of a person in authority is deemed an agent of person in authority. And if an agent of a person in authority is attacked, such attack is under Article 148 which is direct assault and not indirect assault under Article 149. But if the victim of the said direct • assault is a mere agent of a person in authority, and someone who comes to his aid will not become an agent of a person in authority; therefore when he is also attacked, it will only be indirect assault under Article 149.


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•

In statcon, when there are two provisions which are contrary, you reconcile. So to reconcile, Article 149 or indirect assault will only apply if the victim of direct assault is a mere agent of person in authority and someone came to his aid, and that someone was also employed with force and intimidation.

ARTICLE150 – DISOBEDIENCE TO SUMMONS ISSUED BY THE NATIONAL ASSEMBLY, ITS COMMITTEES OR SUBCOMMITTTES, BY THE CONSTITUTIONAL COMMISSIONS, ITS COMMITTEES, SUBCOMITTEES OR DIVISIONS Acts Punished: • I.By refusing, without legal excuse, to obey summons issued by the Congress or any of its extensions or any of its standing committees or subcommittees, by the Constitutional Commissions, its committees, subcommittees or any other body which has the power to issue summons. • Under the first act, for the crime to arise, it is necessary that the offender’s refusal to obey the summons is without any legal excuse. If there is a valid reason, a legal excuse, why the offender didn’t attend the said committee hearing of the congress or why he failed to comply with the said summons or any of the acts under Art. 150; the crime will not arise.

II.By refusing to be sworn or placed under affirmation while being before such legislative or constitutional body or official. • Under the second act the public official or the person was required to appear in the said meeting and obey the summons however, the moment he appeared in the said meeting, he refused to be sworn to. He does not want to be sworn to and he refused to be placed under affirmation before such legislative or constitutional body. Art. 150 is still violated. III.By refusing to answer any legal inquiry or to produce any books, papers, documents, or records in his possession, when required by them to do so in the exercise of their functions.

IV.By refusing another from attending as a witness in such legislative or constitutional body. Under the fourth act punished, the said • offender did not fail to attend in the summons; he restrained another from

CRIMINAL LAW 2 attending as a witness. He prevented another person in attending as a witness in such legislative or constitutional body hearing.

V.By inducing disobedience to a summons or refusal to be sworn by any such body or official. NOTE that Congress where it be the • House of Representatives or the Senate has the power to issue summons because they have the power to investigate that is inquiry in aid of legislation. Whatever be the findings in the said investigating body, it will be used in the making of a bill, a proposal. NOTE that they don’t have the power to file a case so whatever be the product of their investigation, they will give it either to the Ombudsman or to the DOJ. It is upto the DOJ or to the Ombudsman to file a case because the purpose of the Senate or the HOR is only inquiry in aid of legislation.

ILLUSTRATION: Q: What if there is this committee hearing, an investigation about anomalous transactions entered into by a former officials of the DENR. While the said official received the summons, he failed to appear because he was at St. Lukes. He was confined because he was suffering from hypertension. Can he be held liable under Art. 150? A: He cannot be held liable because he has a legal excuse to attend or to obey the summons issued by the Congress. The moment that there is a legal excuse, the crime will not arise BUT if his measure is without any legal excuse NOTE that aside from violation of Art. 150, he can also be held liable or cited for contempt by the said committee of Congress and usually when cited for contempt, he is placed in detention in the Senate Blue Ribbon Committee.

Q: He obeyed the summons, he appeared, he allowed himself to be sworn in however, the moment that the Senators asked him questions, and he refused to answer the questions. He said: I invoke my right against selfincrimination. When he was solely required to produce the books which were confirmed to be in his possession; He didn’t want to produce the said books because according to him, the production of these books would incriminate himself. Can he be held liable under Art. 150? A: He cannot. If the answer to any of the questions or if the conduction of the same will incriminate the person in the said crime; he has the right not to do so. Under the Constitution, No person can be compelled to be a witness against


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himself and asking him, requiring him, ordering him to produce the books or to answer any questions which would incriminate himself is akin to making him a witness against himself and it is unconstitutional.

ARTICLE151 – RESISTANCE AND DISOBEDIENCE TO A PERSON IN AUTHORITY OR THE AGENTS OF SUCH PERSON Punishes two acts: • I. RESISTANCE AND SERIOUS DISOBEDIENCE (PAR 1) ELEMENTS: 1. The person in authority or his agent a. i s e n g a g e d i n t h e performance of official duty; or b. gives a lawful order to the offender 1. Offender resists or seriously disobey such person in authority or his agent 2. That such resistance or disobedience will not amount to a.direct assault (Art 148), b.indirect assault (Art 149); or c.disobedience to summons issued by Congress

II. SIMPLE DISOBEDIENCE (PAR 2) ELEMENTS: 1. An AGENT of a person in authority a. is engaged in the performance of official duty; or b. gives a lawful order to the offender 1. The offender disobeys such order of the agent 2. Such disobedience is not serious in nature

ILLUSTRATION: Q: What if the mayor has a project, a cleaning act operation in order to prevent dengue. So they were cleaning up the canals. While the mayor was cleaning up the canals together with other city hall employees, here comes Mang Pedro who had taken beer and was a little tipsy. So the went there and was shouting and making noise, disturbing the people who were busy cleaning up the canals. And so the police officer cleaning told Mang Pedro to go home because he was disturbing the cleaning up operation. Mang Pedro, instead of going home, merely sat nearby the canal being cleaned by the people. What crime, if any, did Mang Pedro commit? A: Mang Pedro committed SIMPLE DISOBEDIENCE UNDER ARTICLE 151 par 2. Article 151, second paragraph, simple disobedience is committed when an agent of a

CRIMINAL LAW 2 person in authority is engaged in the performance of official duty or gives a lawful order to the offender, that the offender disobeys and such disobedience is not of serious nature. In the problem, it was the police officer, an agent of a person in authority, who gave the order to Mang Pedro and Mang Pedro disobeyed him but such disobedience was not serious in nature because he merely sat nearby the canal; therefore there was no showing that such disobedience is serious in nature so the crime committed is simple disobedience.

A: The following are the persons in authority: 1. Municipal Mayors 2. Division Superintendent of schools 3. Public and private school teachers 4. Teacher-nurse 5. President of the sanitary division 6. Provincial Fiscal 7. Judges 8. Lawyers in actual performance of duties 9. Sangguniang Bayan member 10.Barangay Chairman

Q: Is there direct assault with robbery? Let’s say that the city mayor was assaulted and thereafter he took the watch of the mayor. A: No, there is no such crime. The crime committed is not direct assault with robbery. It is already robbery with any resulting felony, if there is one. What if the original motive was to assault the city • mayor? If the original motive is to assault the • city mayor and not to commit robbery, but the offender took the watch, there will be two crimes because the offender already performed two acts. If there are two separate and distinct • crimes, there shall be two information that will be filed to the court. If it is a complex crime, only one information is filed before the court. • If the intention is to rob, and in the occasion of the said robbery, homicide, serious physical injuries, rape, intentional mutilation, arson was committed, the crime committed under Article 294 is robbery with homicide, robbery with intentional mutilation, robbery with rape, robbery with arson or robbery with serious physical injuries. • If the original intention was to assault the city mayor and thereafter he committed robbery, there will be two acts. Because his intention was to assault and thereafter he committed the second act of taking away the personal property of the city mayor. • In case of DIRECT ASSAULT WITH MURDER or HOMICIDE, it is considered a complex crime under Article 48 because based on the single act performed, two or more grave or less grave offense was committed. Because with the single act of boxing, the offender committed direct assault and serious/less serious physical injuries.

Q: Who is an agent of a person in authority? A: Those who are in charged with: • The maintenance of public order; and • The protection and security of life and property

ARTICLE152 – PERSONS IN AUTHORITHY AND AGENTS OF PERSONS IN AUTHORITY Q: Who are persons in authority?


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ARTICLE153 – TUMULTS AND OTHER DISTURBANCES Acts punished: • I.Causing any serious disturbances in a public place, office or establishment; For the said disturbance to be • considered as a violation of Art 153; it is necessary that the said offender deliberately intended to disturb the said meeting or public place. It was a planned intentional act.

II.Interrupting or disturbing performances, functions or gatherings, or peaceful meetings, if the act is not included in Arts. 131 and 132; NOTE that there is a qualification • made by law provided that the said interruption or disturbance of public gatherings, functions and peaceful meetings must not fall as a violation under Art 131 or Art 132.

III.Making any outcry tending to incite rebellion or sedition in any meeting, association or public place.

IV.Displaying placards or emblems which provoke a disturbance of public order in such place; Whether this making of an outcry or • the displaying of placards or emblems, it is necessary that such act of displaying placards or emblems must be an unconscious outburst of emotion. It must not be intentionally calculated to incite people to rebel or to commit sedition because otherwise, the crime would be inciting to rebellion or inciting to sedition.

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V.Burying with pomp the body of a person who has been legally executed. When you say legally executed; it • means that the said person has committed a heinous crime. The penalty prescribed by law is death and so he was killed by means of lethal injection but at present because of Republic Act No. 9346, we have no more death penalty. Death Penalty is prohibited to be imposed. •

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But in burying with pomp the body of the person who has been legally executed; the said person must be legally executed because the said person has committed a heinous crime yet when he was buried he was buried with such extravagance as if as he is a hero, as if as the government has committed a crime in legally executing him therefore it causes sympathy arising on the part of the people hence, it was a disturbance of public order.

If any of these prohibited acts constituting violation of Art 153 is committed by more than 3 persons who are provided with arms or any means of violence it is said to be tumultuous therefore there must be at least four persons who are armed or provided with means of violence for it to be considered as tumultuous.

SO WHERE LIES THE DIFFERENCE BETWEEN ART 153 AND ART 131 OR 132? Article 153 punishes TUMULTS ANS OTHER • DISTURBANCES OF PUBLIC ORDER, Article 131 punishes PROHIBITION, INTERRUPTION AND DISSOLUTION OF PEACEFUL MEETINGS, Article 132 punishes INTERRUPTING OF RELIGIOUS FEELINGS •

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Articles 131 and 132 can only be committed by a Public Officer. It cannot be committed by a private individual whereas under Art 153, it can be committed both by a Public Officer and a private individual.

What if the offender is a public officer and he disturbs a peaceful meeting. How would you distinguish if it is a violation of Art 153 or a violation of Art 131?


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First, In Art 131, the public officer must not be a participant in the meeting that he disturb or interrupted. He must be an outsider, a stranger in the said meeting. On the other hand, in Art 153, the said Public Officer must be a participant, one in attendance in the said meeting.

Second, in Art 131, the mere intention of the public officer is to prevent a person from freely exercising his freedom of speech and expression whereas in Art 153, the intention of the offender is to disturb public peace and tranquility.

ILLUSTRATION: Q: What if since RH Bill was enacted into law, there was a huge rally at the EDSA Shrine which was initiated by the members of the CBCP. They were against this law and they encouraged the people to file a case before the Supreme Court questioning the constitutionality of the said law. At first, the head of the CBCP spoke then after him another person, a private individual spoke, the head of the organization spoke and he kept on attacking and attacking the President. He said that the President bribed the members of the Congress in order to pass this bill so he kept on attacking and attacking the President. One of the police officers, who was assigned to maintain the peace and order in the place, heard the attacks against the President. This Police Officer was indebted to the President he owed his position to the President. He went straight to the person talking against the President and told him to stop. When he didn’t stop, the Police Officer fired shots in the air and the people scampered away and the peaceful meeting/gathering was dissolved/ interrupted. What crime was committed by the Police Officer? A: The crime committed by the Police Officer is not Art 153 but Art 131.Because the distinctions lie in this case. First, the said Public Officer, a Police Officer is not a participant in the said meeting. He is a stranger, an outsider in the said meeting. Second, his only purpose is to prevent the said person in freely exercising his freedom of speech and expression, it is his right to express his anger against the President yet the said person prevented him in exercising such freedom of Speech and expression therefore the Police Officer is liable under Art 131 and not under Art 153.

For him to be liable under Art 153, let’s say that he is a public officer, he is a participant in the said meeting and while participating in the said meeting, he interrupted the said meeting in order for him to cause a disturbance of the said meeting. The crime is Art 153.

Q: There was this peaceful gathering, let’s say a public meeting, a peaceful meeting about the increase of fares of

CRIMINAL LAW 2 the MRT and the LRT. One of the participants therein, one of the persons therein went to the platform and took the mic and then he incite the people, induced the people to go to the streets, uprise, rebel against the government, to overthrow the government. What crime was committed? A:The crime committed was inciting to rebellion.

Q: What if, he was among the participants. The head of the meeting, the Public Officer was discussing about the increase of fares of the MRT and LRT. This person could no longer control his emotions. Suddenly he stood up and he said: “buwisitnagobyernonaitonaiinisnako. Dapatnatayong mag rebeldesagobyernowalangginawakundi increase ng taxes”. They go and rebel against the government. What crime was committed? A:Tumults and other disturbances of public order. It is just an unconscious outburst of emotions not an intentionally calculated to incite people to rebel against the government.

ARTICLE154 – UNLAWFUL USE OF MEANS OF PUBLICATION AND UNLAWFUL UTTERANCESActs punished: I.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. II.By encouraging disobedience to the law or to the constituted authorities or by praising, justifying ot extolling any act punished by law, by the same means or by words, utterances or speeches. III.By maliciously publishing or causing to be published any official resolution or document without proper authority, or before they have been published officially. NOTE that in the third act there is • the word Malicious. The offender must maliciously publish or cause to be published any official resolution. If the publication of the official resolution without official authority or the publication was not done maliciously, there was no intent to cause damage, it was not done maliciously. Art 154 is not violated. It is necessary that the said publication must be done maliciously under the third act. IV.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.


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It is necessary that any publication has contained the real printer’s name. It must have been anonymous. The publisher, the printer, the author, must be stated even at the bottom.

Q: What if the Philippine Daily Inquirer has as its headline: “KC Concepcion said..PioloPascual is gay.” So that is the headline of the Philippine Daily Inquirer. It was posted. KC never categorically stated that Piolo is gay, she only impliedly stated it but she never categorically stated it. So the Daily Inquirer published a false news and PioloPascual filed a case in violation of Art 154 against the Philippine Daily Inquirer. The Philippine Daily Inquirer knew that it is a false news yet they still published it as news. A: Art. 154 is not violated because whether or notPiolo is gay it will not endanger public order. It will not cause damage to the credit or interest of the state.

Q: What if the headline of the Philippine Daily Inquirer said: “Tomorrow, Megamall will be bombed from a very reliable source.” That was the headline of the Philippine Daily Inquirer. The Philippine Daily Inquirer later on learned that it was false nevertheless; since it was already there they still published it and distributed it. Can they be held liable under Art 154? A: Yes because the said news will endanger public order. It can cause damage to the credit or interest of the state. Imagine Megamall will be bomb, no person will go to the said place, tourists will not go to the said place therefore it will endanger public order and can cause damage to the interest of the state when the said newspaper published it despite knowing that it was false news. Art 154 is violated.

Q: What if members of the CBCP, they are against the RH Law. They made leaflets, pamphlets and distributed it to all persons in the church, in market.. Therein is stated: Anyone who would obey or comply with the RH Bill which is a Catholic will be ex-communicated. Can they be held liable of Art 154? A:Yes because they encouraged disobedience to the law. It has been enacted into law and by encouraging the people that they would be excommunicated if you will obey it, then you can be held liable for unlawful use of means of publication.

ARTICLE155 – ALARMS AND SCANDALS Acts punished: • I.Discharging any firearm, rocket, firecracker, or other explosives within any town or public place calculated to cause (which produces) alarm or danger.

CRIMINAL LAW 2 II.Instigating or taking an active part in any charivari or other disorderly meeting offensive to another or prejudicial to public tranquility. Charivari includes a medley of • discordant voices, a mock serenade of discordant noises made on kettles, tins, horns, etc. designed to annoy and insult. III.Disturbing the public peace while wandering about at night or while engaged in any other nocturnal amusement. IV.Causing any disturbance or scandal in public places while intoxicated or otherwise, provided Art 153 is not applicable

ILLUSTRATION: Q: In a public park, there were so many people here comes X. X went in the middle of the park and fired shots in the air. The people were so afraid they scampered away. What crime is committed? A: Alarms and Scandals under Art 155. His act can cause damage to public peace and tranquility.

Q: What if in the same problem, in a public park, there were so many people and here comes X. X saw his enemy Y. He took out his firearm, aiming his firearm at Y without any intent to kill because he knew Y would not be killed and he discharged the firearm. What crime is committed? A: The crime committed is illegal discharged of firearms under Art. 1254.

Q: What if in the same public place, X saw his enemy Y. He pulled out his firearm with intent to kill, he aimed his firearm at Y, discharged the firearm but Y was not killed. What crime was committed? A: Attempted murder or Homicide as the case may be. In case of alarms and scandals, the only • intention of the offender is to cause damage to public peace and tranquility that is to cause alarm and danger. That is his intention.

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In Illegal Discharge of Firearms under Art 1254 his intention is to threaten the said person or any other persons. He aimed the firearm and discharges the firearm pointing at a particular person absent: intent to kill. There was no intent to kill, it is illegal discharge of firearm. But given in the same problem, he knows his enemy, pointed the firearm at his enemy but with intent to kill. He discharged the firearm but his enemy was not killed. It is attempted homicide or murder as the case may be. Since there is an intent to kill on the part of the


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offender even if the victim was not killed it is still in the attempted stage.

Q: What if in the same problem, it was in a public place, X went to the said place, he saw his enemy Y. He went near Y, took out his gun and poked the gun at Y but did not discharge the said gun. What crime is committed? A:The crime committed is other light threats. NOTE that under other light threats the offender merely poked the firearm at the victim without discharging or firing the firearm. If the firearm has been discharged, 3 crimes may be committed depending on the intent. It can be alarms and scandals, illegal discharge of firearms or attempted homicide or murder as the case may be.

Q: You have a neighbor, it was his birthday. They rented a videoke and kept on singing along till 12mn. The guests already left, the birthday celebrant was the only one left, it’s already 1:30am and he’s still singing at the top of his voice with the use of the mic. His neighbors cannot sleep because of his ugly voice. Everyone in the neighborhood could hear him and cannot sleep. Can he be held liable under Art 155 alarms and scandals? A: Yes. He can be held liable under alarms and scandals because his only intention that night is to cause a disturbance of public peace and order.

Q: Let’s say a person was intoxicated. He was drunk. He was on his way home. He was singing at the top of his voice. Is he liable for alarms and scandals? A: No because it is normal to sing at the top of his voice.

Q: What if he saw this lead pipe (tubo) and upon seeing this lead pipe, he would bang all the gates that he would pass by. Is he liable for alarms and scandals? A: Yes because his acts caused damage to public peace and tranquility.

ARTICLE156 – DELIVERING PRISONERS FROM JAIL ELEMENTS: 1. That there is a person confined in a jail or penal establishment. 2. That the offender removes therefrom such persons, or helps the escape of such person. •

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The PENALTY for the crime is QUALIFIED if violence or intimidation has been used in the commission of the crime also if bribery is used in delivering prisoners from jail.

Who is the offender? The offender is any person. He can be a private • individual or a public officer or employee provided that he is not the custodian of the said prisoner

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because if the offender who helped in the escape of the prisoner from jail is the custodian of the said prisoner, the crime is under Art 223 Infidelity in the custody of prisoners because the element of breach of trust and confidence reposed on him by the government.

Who is the prisoner being referred to in delivering persons from jail? He can be a detention prisoner or a prisoner • convicted by final judgment for as long as he is in a jail or penal institution. A detention prisoner is a prisoner who is • behind bars but the case against him is ongoing either because the crime he committed is a non-bailable offense and evidence of guilt is strong or the crime he committed is a bailable offense but he does not have the enough funds to put up the required bail.

and concealed him despite the fact that he was an escapee from a penal institution. What are the crimes committed by A (the prisoner), B (the friend), jail warden custodian, the guard of the penal institution, and the friend who harbored him? A: A is liable of evasion of service of sentence under Art 157. He is a prisoner convicted by final judgment therefore he is liable for evasion of service of sentence.

Q: What if he is not serving his sentence in Muntinlupa. Let’s say he is just a detention prisoner. Can he be held liable for evasion of service of sentence? A: No. Evasion of service of sentence can only be committed by a prisoner convicted by final judgment. In the given problem, A is convicted by final • judgment therefore A is liable for evasion of service of sentence under Art 157. •

The prisoners at the provincial jail, city jail, municipal jail, they are merely detention prisoners. They are not yet convicts. They are only accused, suspects therefore they are presumed innocent unless and until proven that they’re guilty of the crime charged. They are merely detention prisoners. •

On the other hand, a prisoner that is convicted by final judgment is one who has been convicted by the lower court and who did not appeal his conviction within the period to perfect an appeal then the judgment becomes final and executory. He has to serve the sentence. Or he has been convicted then he appealed to the higher court within the period to perfect an appeal and the said higher court affirmed the said conviction. The conviction will now become final and executory so he is now a prisoner convicted by final judgment. Generally, they are those who are serving sentence in Muntinlupa.

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ILLUSTRATION: Q: Let’s say A is a prisoner convicted by final judgment. He is serving his sentence in Muntinlupa. B his friend visited him. B was a rich man. He planned A’s escape on his birthday. He did this by talking to the jail warden custodian. B the friend gave the jail warden custodian P500,000.00. He gave bribe to the jail warden custodian to allow A his friend to escape at that night. He also went to the guard at the entrance gate of the New Bilibid Prison and gave the guard P100,000.00, also to allow his friend to leave at that night. That night, A escaped and left the penal institution. He went to the house of another friend who harbored him


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B the friend is liable under Art 156 Delivering prisoners from jail qualified by the giving of bribe therefore his penalty will be qualified because he gave bribe money inorder to help in the escape of his friend. He will not be liable for another crime of corruption of public official because the giving of bribe is considered clearly as a qualifying or as an aggravating circumstance in delivering prisoners from jail.

The jail warden custodian who received the bribed money and allowed A’s escape is liable under Art 223 infidelity in the custody of prisoners. Aside from that, he is also liable for direct bribery because in case of infidelity in the custody of prisoners, the giving and receiving of bribe is not a qualifying or aggravating circumstance therefore the jail warden custodian will be liable for 2 crimes; Infidelity in the custody of prisoners and direct bribery for having received the bribed money in the amount of P500,000.00.

The guard at the entrance gate of the penal institution will be liable for delivering prisoners from jail. He is not the custodian and he helped in the escape/removal of the prisoner from jail. Therefore, he is liable for delivering prisoners from jail. The fact that he received bribed money will not make him liable of direct bribery because in delivering prisoners from jail, it is only a qualifying circumstance which will only increase the imposable penalty.

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The friend who harbored and concealed him will be liable under PD 1829 that is obstruction of justice. It is committed by any person who willfully or deliberately obstructs or impedes the investigation or the apprehension of a criminal. Why not an accessory? o Because I did not mention in the problem the crime committed by the prisoner. For an accessory to the crime, it is necessary that the crime committed by the prisoner must be treason, parricide, murder, attempt to take the life of the chief executive or is known to be habitually guilty of some other crime. I did not mention the crime committed by the prisoner. Therefore his liability is under PD 1829 Obstruction of Justice.

ARTICLE157 – EVASION OF SERVICE OF SENTENCE (Art 157) ELEMENTS: 1. That the offender is a convict by final judgment. 2. That he is serving his sentence which consists in deprivation of liberty. 3. That he evades the service of his sentence by escaping during the term of his sentence. •

Evasion of service of sentence can only be committed by a person convicted by final judgment. It cannot be committed by a mere detention prisoner.

• PENALTY IS QUALIFIED if such evasion or escape takes place: 1. By means of unlawful entry 2. By breaking doors, windows, gates, walls, roofs or floors; 3. By using picklocks, false keys, disguise, deceit, violence or intimidation; or 4. Through connivance with other convicts or employees of the penal institution.

ILLUSTRATION: Q: You often read in the newspapers, heard over the radios, watch on TV, 5 prisoners escaped from the Caloocan city jail, 10 prisoners escaped from Palawan Provincial Jail. Did they commit evasion of service of sentence? A: No. These persons did not commit evasion of service of sentence under art 157 because they are merely detention prisoners. For evasion of sentence to arise, the prisoner who has escaped must be a prisoner convicted by final judgment. Under Art 157, the said prisoner the said prisoner must be serving which involves deprivation of liberty and he escapes during the service of his sentence by evading the service of sentence.


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The law says, it is a prisoner serving his sentence which involves deprivation of liberty. It is necessary that the sentence imposed on him must involve deprivation of liberty either it is behind bars or he has been convicted of a crime wherein the penalty is destierro. Even if the penalty prescribed is destierro, the moment he enters the place wherein he is prohibited from entering in the judgment of the court, he also committed evasion of service of sentence. Destierro under Art 27; Destierro is also a • penalty which involves deprivation of liberty although partial not complete deprivation of liberty because the offender or the convict is not allowed to enter a place designated in the judgment of the court. The moment he enters the said place, he commits evasion of service of sentence.

ARTICLE158 – EVASION OF SERVICE OF SENTENCE ON THE OCCASION OF DISORDERS, CONFLAGRATIONS, EARTHQUAKES, OR OTHER CALAMITIES (ART 158) ELEMENTS: 1. That the offender is a convict by final judgment who is confined in a penal institution. 2. That there is a disorder resulting from ---a. Conflagration b. Earthquake c. Explosion d. Similar catastrophe e. Mutiny in which he has not participated 3. That the offender evades the service of his sentence by leaving the penal institution where he is confined, on the occasion of such disorder or during the mutiny. 4. That the offender fails to give himself up to the authorities within 48 hours following the issuance of a proclamation by the Chief Executive announcing the passing away of such calamity. • •

It is required under Art 158 that the prisoner is serving his sentence in a penal institution. In this kind of evasion of service of sentence under Art 158, the crime will arise not upon the act of leaving the penal institution but upon the convict’s failure to return/ to give himself to the proper authorities within 48 hours. That is only when the crime will arise.

ILLUSTRATION: Q: What if there was this earthquake, X was a prisoner convicted by final judgment. Everything was shaking and because of the earthquake, X escaped the penal institution. He went to the house of his mother. That night while watching the television, he saw the president announced/ declared that the calamity had already ceased/passed

CRIMINAL LAW 2 away. Within 48hrs he returned. What is the effect on his criminal liability? A:If the said convict escaped and returned to the proper authorities within 48hrs; there shall be a credit or a deduction from his sentence. There is 1/5 deduction/credit from his sentence. Under Art 98 this is special time allowance for loyalty. He was too loyal to the government that even if he already left the penal institution he still returned; such kind of loyalty must be rewarded.

acceptance in the part of the prisoner granted pardon. The moment he accepts the conditional pardon, it means it is incumbent upon him to comply to all of the strict conditions. The moment he violate any of the terms and conditions he commits evasion of service of sentence because it shows that he just accepted the conditional pardon so as to free himself from taking place behind bars.

Is violation of conditional pardon a substantive offense or not? It depends. If you will look at Art 159, there • are 2 situations. Under Art 159, if the penalty remitted by the grant of pardon does not exceed 6yrs, the moment he violates any of the conditional pardon, there is a new penalty imposed upon him that is prisioncorreccional minimum 6 months and 1 day to 2 years and 4 months. A new penalty is imposed on him therefore in this case, violation of the conditional pardon is a substantive offense because a new penalty is imposed on him. BUT on the second part of Art 159, if the penalty remitted is more than 6 years; no new penalty is imposed on him for having violated the terms of the pardon. He is only required to serve the remainder of the sentence. In this case, violation of the conditional pardon is not a substantive offense because there is no new penalty imposed for the commission of the crime.

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Q: What if 48hrs had lapsed, still he did not return. What is the effect of his criminal liability? A:There will be an additional penalty imposed on him. 1/5 on the basis of the remainder of his sentence but note that it shall not exceed six months.

Q: There was this earthquake, everything was shaking. He just hid under the table. He did not leave the penal institution. He was so loyal to the government that he did not even think to leave. Will he be given credit? A:No. Under Art 158 there is no credit to be given to him. Under Art 98, there is no special time allowance of loyalty for just hiding under the table and not leaving the penal institution.

Q: Why those who are loyal to the government and did not leave the penal institution be not given credit? Isn’t it unfair? A: The reason is that prisoners are considered as accountabilities of the government. It is the duty of the government to protect the prisoners. In times of calamities or public disorders, the state cannot protect these prisoners therefore the State encourages them to leave inorder to protect themselves. But important thing is that they show their loyalty to the government hence they will return.

ARTICLE159 – EVASION OF SERVICE OF SENTENCE BY VIOLATION OF CONDITIONAL PARDON ELEMENTS: 1. The offender was a convict 2. He was granted a conditional pardon by the Chief Executive 3. He violated any of the conditions of such pardon

TWO KINDS OF PARDON: 1. Absolute Pardon which totally extinguishes the criminal liability 2. Conditional Pardon which partially extinguishes criminal liability. Conditional Pardon is said to only partially • extinguishes criminal liability because the said pardon is subject to strict terms and conditions. Therefore, there must be an


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ARTICLE160 – COMMISSION OF ANOTHER CRIME DURING SERVICE OF PENALTY IMPOSED FOR ANOTHER PREVIOUS OFFENSE ELEMENTS: 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.

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Who is a quasi-recidivist? A quasi-recidivist is any person who shall commit • a felony after having been convicted by final judgment before serving his sentence or while serving his sentence.

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Under Art 160 it is stated that the maximum penalty prescribed by law shall be imposed therefore it is a special aggravating circumstance. Art 160 is a misplaced article because book 2 is about felonies and art 160 is a special aggravating circumstance.

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TITLE FOUR

CRIMINAL LAW 2 CRIMES AGAINST PUBLIC INTEREST (Articles 161 – 189)

3.

ARTICLE161 – COUNTERFEITING THE GREAT SEAL OF THE GOVERNMENT OF THE PHILIPPINE ISLANDS, FORGING THE SIGNATURE OR STAMP OF THE CHIEF EXECUTIVE Acts punished: • I. Forging the Great Seal of the Government of the Philippines. II. Forging the signature of the President. III. Forging the stamp of the President.

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B. Importing false coins is committed by any person who shall bring into the Philippine ports any false and counterfeited coins. It is not necessary for the offender to be liable that he shall circulate the false coins because there is a third act of uttering false coins.

Art 161 is the crime when the person is the one who committed the forgery, but if the offender is not the one who forges the great seal, signature but he knows that the document contain a forge stamp, signature of the President and despite such knowledge that it was a forgery he makes use of the same, liability is under 162.

Art 162 punishes the person who, despite knowledge of the forged signature, stamp or great seal of the Republic of the Philippines still he makes use of the same document.

ILLUSTRATION: Q: In an official document, the signature of the President was forged by A then it was given to B. B knew that it was a forgery nevertheless he made use of the same. What crime was committed? A:A committed a crime under 161. And B committed a crime under 162.

ARTICLE163 – MAKING AND IMPORTING AND UTTERING FALSE COINS ELEMENTS: 1. That there be false or counterfeited coins 2. That the offender either made, imported or uttered such coins.


C. Uttering false coins is committed by any person who shall circulate, give away to another, pass from one person to another any counterfeited or false coins. •

ARTICLE162 – USING FORGED SIGNATURE OR COUNTERFEIT SEAL OR STAMP (Art 162) ELEMENTS: 1. That the Great Seal of the Republic was counterfeited or the signature or stamp of the Chief Executive was forged by another person. 2. That the offender knew of the counterfeiting or forgery. 3. That he used the counterfeit seal or forged signature or stamp.

When is it committed? A. Counterfeiting (imitation of false coins) • is committed by any person who shall imitate a genuine and authentic coin making it appear that it is a true, genuine, and authentic coin. The offender copies the peculiar design of the coin and makes a spurious one out of it.

Art 161 punishes the person who forges the great seal of the Philippines, signature of the chief executive and forging the stamp of the chief executive.

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That in case of uttering such false or counterfeited coins, he connived with the counterfeiters or importers

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In case of counterfeited or imitated false coins, it is not necessary that the coins be the subject of counterfeiting must be of legal tender. Even if the coin is not a gold coin, if the offender copies or imitates or counterfeits the peculiar design of the said coin; he becomes liable under Art 163.

ILLUSTRATION: Q: A is in possession of a coin which was of legal tender during the time of Marcos in 1972. It was a proven genuine coin. He copied the said coin and made a spurious one out of it. Is he liable under Art 163? A: Yes he is liable for making and importing and uttering false coins under Article 163.

Q: What if while he was in possession of the said coin; he took out a part of the metal content of the said coin. Can he be liable for Mutilation of coins under Art 164? A:No, he cannot because in Art 164 or mutilation of coins, it is necessary that the coin subject of mutilation must be of legal tender. It must be in present currency because otherwise, it cannot be said that the public has been deceived.

ARTICLE164 – MUTILATION OF COINS Acts punished: • I. Mutilating coins of the legal currency, with the further requirement that there be intent to damage or to defraud another.

CRIMINAL LAW 2 II.

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Importing or uttering such mutilated coins, with the further requirement that there must be connivance with the mutilator or importer in case of uttering.

Mutilation is the act of taking off a part of the metal content by filing it or substituting it for another metal of inferior quality. The offender gathers the metal dust that he has taken off from the said coin. While the offender took out a part of the metal coin, he is in effect diminishing the intrinsic value of the said coin therefore who would be given the said coin would be deceived of the this crime hence a crime in violation of public interest is committed.

ILLUSTRATION: Q: There were 3 children/adults. They were playing karakrus. So they toss the coin, however before doing that, they would scratch the coin on the steel therefore the metal content of the coin is diminished. Can they be held liable under Art 164? A: No. because there was no intent to gather the metal dust of the said coin. Can they be held liable of any crime? • Yes. They can be held liable under PD • 247 •

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PD 247 punishes any person who willfully or knowingly defaces, mutilates, tears, burns or destroys any currency notes or coins issued by the BangkoSentralngPilipinas. In case of violation of PD 247 it is not required that there is intent to mutilate on the part of the offender. It is not required that the offender has the intent to gather the metal dust of the coin although these are required under Art 164.

Q: In a P 1000.00 bill, a person put his cell phone no. on it. Is he liable under PD 247? A: Yes he is liable under PD 247. •

who counterfeited the coin. The offender is only in possession of it but in order for him to be held liable; he must have the knowledge that the coin is counterfeited or mutilated and despite having such knowledge; he has the intent to utter, circulate, pass away, to give away to another the said coin.

But PD 247 is akin to a dead law because no one has been prosecuted by it.

ARTICLE165 – SELLING OF FALSE OR MUTILATED COIN, WITHOUT CONNIVANCE Acts punished: • I. Possession of coin, counterfeited or mutilated by another person, with intent to utter the same, knowing that it is false or mutilated. ELEMENTS: 1. Possession, 2. With intent to utter, and 3. Knowledge Under the first act, the offender is in • possession of the false, mutilated, counterfeited coin. It is another person


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II.

Actually uttering such false or mutilated coin knowing the same to be false or mutilated. ELEMENTS: 1. Actually uttering, and 2. Knowledge. In the second act it is the act of actually • circulating or uttering the counterfeited coin despite knowledge that it is counterfeited or mutilated.

ILLUSTRATION: Q: What if A is under surveillance, reports came to the police that he had been circulating false coins. A went to the bakery store, he bought bread worth P 50.00. He gave the store owner 5 P 10.00 counterfeited coins. Thereafter, after giving the counterfeited coins, he immediately left. The police arrived and A was gone and it was the owner of the store who is left. The police officer asked the owner of the store to open the cash bin. There they saw the 5 P 10.00 coins which were counterfeited. They arrested the owner of the store. Is the owner of the store liable under Art 165? A:No he is not liable of selling of false coins or mutilated coins, without connivance under Article 165. First, he was caught in possession. Was there possession? • Yes. The counterfeited coins were found • in his cash drawer. Possession does not only mean physical or actual possession. Possession means constructive possession which means that the counterfeited or mutilated coins are in his control and custody. Therefore the first element of possession is present. • Was there intent to utter the counterfeited coins on • the part of the said owner? Yes. The fact that he placed it in the cash • drawer means he can use it to buy another thing or as a change to the people who will buy from his bakery therefore circulation has a way from one person to another. Therefore the second element is also present. • How about the third element of knowledge on his • part the coin was counterfeited? The third element is absent evidently • based on the facts that the store owner

CRIMINAL LAW 2 has no knowledge that the coins are counterfeited. In fact he gave bread worth P 50.00. He was also deceived. If he had only known that the coins were counterfeited, he would not have given bread worth P 50.00. Therefore, he may not be held liable because also he is in possession, and he has the intent to utter the coins; he does not have the knowledge that the said coins were counterfeited.

e.g. Check payable to cash. Whoever is in possession of the said check can come to the bank. It can be transferred by mere delivery. •

ARTICLE166 – FORGING TREASURY OR BANK NOTES OR OTHER DOCUMENTS PAYABLE TO BEARER; IMPORTING, AND UTTERING SUCH FALSE OR FORGED NOTES AND DOCUMENTS Acts punished: • I.Forging or falsification of treasury or bank notes or other documents payable to bearer. II.Importation of such false or forged obligations or notes. III.Uttering of such false or forged obligations or notes in connivance with the forgers or importers.

ARTICLE167 – COUNTERFEITING, IMPORTING, AND UTTERING INSTRUMENTS NOT PAYABLE TO BEARER ELEMENTS: 1. That there be an instrument payable to order or other document of credit not payable to bearer. 2. That the offender either forged, imported or uttered such instrument. 3. That in case of uttering, he connived with the forger or importer.

ARTICLE168 – ILLEGAL POSSESSION AND USE OF FALSE TREASURY OR BANK NOTES AND OTHER INSTRUMENTS OF CREDIT ELEMENTS: 1. That 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 another person. 2. That the offender knows that any of those instruments is forged or falsified. 3. That he performs any of these acts ---a. Using any of such forged or falsified instruments; or b. Possessing with intent to use any of such forged or falsified instruments. •

An instrument is payable to bearer when it can be transferred by mere delivery.


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On the other hand a check is payable to order where it can be transferred by mere delivery when there is an endorsement coming from the person named or specified therein. It is an instrument payable to the order of a specific person or his order. e.g. Payable to the order of Charmaine. This cannot be transferred from one person to another without an order coming from Charmaine.

ARTICLE169 – HOW FORGERY IS COMMITTED (Art 169) 1. By giving to a treasury or bank note or any instrument payable to bearer or to order mentioned therein, the appearance of a true and genuine document. 2. By erasing, substituting, counterfeiting, or altering by any means the figures, letters, words, or sign contained therein. • • •

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If what has been falsified is a coin; you call it counterfeiting. If it is the stamp, seal or signature of the President; you call it forging. If it is treasury or bank notes; it is considered as forging. It is a document; you call it falsification.

FALSIFICATION (ART 170, 171, 172) In case of FALSIFICATION, to amount to falsification, it • is necessary that the writing that is falsified must be a document in a legal sense of the word – capable of making rights and/or extinguishing an obligation. Therefore, it must be complete in itself so that it would be sufficient in evidence. Falsification of mere forms does not amount to • falsification of a public document. Because the said form is not yet complete in itself – it has no name, no address – an unfilled-out/up form. It is not falsification.

ILLUSTRATION: Q: So what if A was found outside the building of the LTO office. He was carrying falsified unfilled-out/up forms of driver’s license. It was distinct, it was falsified, it was not the real driver’s license form. He was arrested by the NBI. Can he be held liable for falsification of a public document?

A: NO. Because what he is carrying is only an unfilled-out form. It is not yet complete in itself. It is not yet capable of creating rights or extinguishing an obligation. It is not yet susceptible of evidence of the facts stated thereon.

Q: So what crime if any was committed by A?

CRIMINAL LAW 2 A: A merely committed violation of Article 176 – that is mere possession of instrument or implements for falsification, but not yet falsification of a public document.

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There 4 types of documents which may be falsified: 1. PUBLIC DOCUMENT – a document which is issued by a notary public or competent public official with the solemnities required by law

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OFFICIAL DOCUMENT – a document issued by a public official in the exercise of his official functions

COMMERCIAL DOCUMENT – any document defined and regulated by the Code of Commerce or any other mercantile law

PRIVATE DOCUMENT – a document, a deed or instrument executed by a private person without the intervention of the notary public of any other person legally authorized, by which document some disposition or agreement is proved, evidenced or set forth Is a public document distinct from an official document?

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All official documents are considered as public documents, but not all public documents are considered official documents. Before a public document may be considered as an official document, it is necessary that it shall be issued by a public officer in the exercise of his official functions. There is a law that requires a public officer to issue the said public document, then it becomes an official document.

A PRIVATE DOCUMENT, one which has been executed by a private person, if there is no intervention of public official.

A PRIVATE DOCUMENT however, even though executed by a private person without the intervention of a notary public or a legally authorized person, can also become a public document. That is when the said private document is submitted to the public officer and it becomes part of the public records. The moment the said private document becomes part of the public records, it is now a public document and when it is issued and it is falsified, what is falsified is a public document and no more a private document.

It is necessary to distinguish the kind of document that is being falsified - whether it is a public, official, commercial or private because of the different effects.

If what has been falsified is a PUBLIC, OFFICIAL OR COMMERCIAL DOCUMENT, damage or intent to cause damage to the offended party or to any other person is not an element.


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On the other hand, if what has been falsified is a PRIVATE DOCUMENT, for the crime to arise, it is necessary that there must be damage or at least, intent to cause damage to the private offended party or to any other party. If what has been falsified is a PUBLIC OR OFFICIAL DOCUMENT, it is not necessary that there be damage or intent to cause damage. Because a public document – an official document - is presumed authentic and legal. It is presumed to be “prima facie evidence” of the facts stated therein. As such, the moment it is falsified, the crime will immediately arise, without need that there be damage on the part of the offended party. Because in Falsification of a Public Document, what has been violated is the PERVERSION OF TRUTH being solemnly proclaimed by the said document. Hence DAMAGE IS NOT AN ELEMENT.

ARTICLE171 – FALSIFICATION BY PUBLIC OFFICER, EMPLOYEE OR NOTARY OR ECCLESIASTICAL MINISTER The first kind of falsification under Article 171, • we have the falsification committed by a public officer, employee or notary public or an ecclesiastical minister. ELEMENTS: 1. The offender is a public officer, employee, notary public or an ecclesiastical minister. 2.

3.

He takes advantage of his official position. The offender is said to have taken • advantage of his position or office when: a. He has the duty to make or prepare or to otherwise intervene in the preparation of the document; or b. He has the official custody of the document which he falsifies

That the said offender falsifies a document by committing any of the following modes stated therein: c. By counterfeiting or imitating any handwriting, signature or rubric. d. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate. e. Attributing to persons who have participated in an act or proceeding statement other than those in fact made by them f. Making untruthful statements in a narration of facts g. Altering true dates h. Making any alteration or intercalation in a genuine document which changes its meaning i. Issuing in authenticated form a document purporting to be a copy of any original document when no such copy a statement contrary to, or different from that of the genuine original

CRIMINAL LAW 2 j.

4.

Intercalating any instrument or note relative to the issuance thereof in a protocol, registry or official book.

k. 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 the falsification may affect the civil status of persons.

EXPLANATIONS: 1. The offender is a public officer, employee, notary public or an ecclesiastical minister. If the offender is an ecclesiastical • minister, for him to be liable under Article 171, it is necessary that the document that he falsifies must affect the civil status of a person. If the document falsified by an • ecclesiastical minister will not affect the civil status of a person, he is still liable for falsification, but not under Art. 171, rather under Art. 172. So, a priest falsified the communion • certificates of one of the students/pupils receiving the first communion, the crime committed is falsification under Art. 172, not under Art. 171 because a certificate of communion will not affect the civil status of the said child. 2.

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He takes advantage of his official position. It requires that the offender takes • advantage of his official position. The offender is said to have taken • advantage of his position or office when: a. He has the duty to make or prepare or to otherwise intervene in the preparation of the document; or b. He has the official custody of the document which he falsifies That the said offender falsifies a document by committing any of the following modes stated therein: If you will look at Art. 171, it does not • state the kind of document that has been falsified, it may not be stated because it necessarily follows that the document falsified is a public or official document because the offender is public officer or employee or notary public. Therefore necessarily, the document being falsified in Art. 171 is a public official or official document.

Art. 171 provides for the DIFFERENT ACTS OF FALSIFICATION. These acts of falsification are also applicable in Art. 172: I. BY COUNTERFEITING OR IMITATING ANY HANDWRITING, SIGNATURE OR RUBRIC. So what is COUNTERFEITING? • The offender is said to have counterfeited • a signature, handwriting or rubric if he has imitated an official handwriting, signature or rubric.


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II.

So there is an original handwriting or signature and the offender imitiated or copied the said original handwriting or signature.

Is COUNTERFEITING the same as FEIGNING? Feigning a handwriting, signature or • rubric is NOT THE SAME as counterfeiting. When you say FEIGNING, it means “simulating” a handwriting, signature or rubric. That is, making a handwriting, signature or rubric out of nothing which does not exist. It is an imaginable, an inexistent handwriting, signature or rubric.

CAUSING IT TO APPEAR THAT PERSONS HAVE PARTICIPATED IN ANY ACT OR PROCEEDING WHEN THEY DID NOT IN FACT SO PARTICIPATE.

Q: What if a notary public issued, he prepared or issued an extrajudicial settlement of an estate. In the said extrajudicial settlement of an estate, it is stated that all the heirs of a certain decedent can already agree by themselves to partition the property. So it is an extrajudicial settlement of an estate and in it, the notary public made it appear that all the 12 heirs of the decedent had participated, but un truth and in fact, two of the heirs where in another country and they did not participate in the execution of this extrajudicial settlement of the estate. Is the notary public liable? A: YES. The notary public is LIABLE under the second act (causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate).He caused it to appear that A and B participated in the execution of the extrajudicial settlement of the estate, when they did not in fact so participate.

III. AT T R I B U T I N G T O P E R S O N S W H O H AV E PARTICIPATED IN AN ACT OR PROCEEDING STATEMENT OTHER THAN THOSE IN FACT MADE BY THEM So under the third act, persons participated in • an act or proceeding, they made statements therein, however, the offender in a document may appear that these persons have made certain statements which were not in fact made by them.

Q: So what if in the SangguniangPanglungsod, an ordinance was being passed. There was a votation, majority of the councilors voted, two of the councilors dissented and their vote were NO. they just stated that they were voting in the negative, but, they did not give any explanation for their dissent or the vote of NO. however, in the minutes appeared by the Sangguniang Secretary, the latter made it appear that the two councilors made statements that they voted NO because the said ordinance is contrary to law. Is the said secretary liable for falsification?

A: YES. He is a public officer. He is the one who prepared the minutes for the

CRIMINAL LAW 2 SangguniangPanglungsod and he made it appear that the 2 councilors stated that the said ordinance is contrary to law and in truth and fact, they did not made those statements. So the said secretary is liable for falsification.

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IV. MAKING UNTRUTHFUL STATEMENTS IN A NARRATION OF FACTS The evidence of this act of falsification • requires: i.That the offender makes in a document untruthful statement in a narration of facts; ii.That he has legal obligation to disclose the truth of the facts narrated by him iii.The facts narrated by the offender are absolutely false iv.The untruthful narration must be such as to effect the integrity of the document and that the offender does so with the intent to injure or prejudice another person

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It is necessary that the intention of the intention of the offender must be to INJURE ANOTHER PERSON. In case of making false statements in a narration of facts, it is necessary that the offender must have the legal obligation to disclose the truth in the said narration of facts. Absence of such legal obligation, then it cannot be said that he is liable for falsification. When you say legal obligation, there is a law which requires him to state nothing but the truth in the said document.

Q: So what if the offender, a public officer, falsified the statement in his residence certificate or community tax certificate. Although he stated his true name, he did not state his address, citizenship, etc. So makes false statement of facts in his residence certificate or community tax certificate, otherwise known as cedula. So he was charged with falsification. He contended that there is no law which requires him to state the truth in his residence certificate. Is his contention correct? A: His contention is wrong. According to a ruling in the Supreme Court, if it is a residence certificate or community tax certificate, there need not be a law which requires a person to state the truth in the said residence certificate, it is inherent in the kind of document. Since it is a residence certificate or cedula, it is inherent that in this document, nothing but the truth must be stated – no falsity. Because it requires identification. V.

ALTERING TRUE DATES It is necessary that what has been altered • must be a true date and in the alteration of the said true date, the document will no longer have any effect.

VI. MAKING ANY ALTERATION OR INTERCALATION IN A GENUINE DOCUMENT WHICH CHANGES ITS MEANING


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2 ACTS: i. The offender makes an alteration ii. The offender makes an intercalation in a genuine document which changes its meaning ALTERATION – changes in a document INTERCALATION – there must be some insertion made in the said document, in a genuine document that changed the meaning of the said document

VII. ISSUING IN AUTHENTICATED FORM A DOCUMENT PURPORTING TO BE A COPY OF ANY ORIGINAL DOCUMENT WHEN NO SUCH COPY A STATEMENT CONTRARY TO, OR DIFFERENT FROM THAT OF THE GENUINE ORIGINAL 2 ACTS PUNISHED: • 1. The offender issued in an authenticated form a document purporting to be an authenticated copy of an original document, but no such original exists 2. By including such copy a statement contrary to or different from a genuine original

ILLUSTRATION: Q: What if a notary public issued a deed of absolute sale and he said that it is an original copy of a deed of absolute sale between A and B. A selling his property to B, but in truth and in fact, no such deed of absolute sale was executed between A and B. Is the notary public liable? A: YES. He is liable under the second act of falsification in the seventh act of the 3rd element in Art. 171.

Q: What if a civil registrar issued a certificate of live birth. So here comes A. A was asking that he should be given a certified copy of a certificate of live birth. In the said certificate of live birth issued by the said civil registrar, there was a statement that A was an illegitimate child, but in the original copy of the certificate of live birth submitted to the office of the Office of the Civil Registrar, there was no such statement. Is the civil registrar liable?

A: YES. He is liable under the second act of falsification in the seventh act of the 3rd element in Art. 171. Because he included in the said copy a statement contrary to or different from that of a genuine original.

VIII.INTERCALATING ANY INSTRUMENT OR NOTE RELATIVE TO THE ISSUANCE THEREOF IN A PROTOCOL, REGISTRY OR OFFICIAL BOOK. INTERCALATION – making any insertion in • any instrument or note

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So these acts, under ARTICLE 171, are also the very same acts punished under Art. 172.

A R T I C L E 1 7 2 – FA L S I F I C AT I O N B Y P R I VAT E INDIVIDUALS AND USE OF FALSIFIED DOCUMENTS THREE PUNISHABLE ACTS/FELONIES? •

CRIMINAL LAW 2 Falsification of a public, official or commercial document by a private individual So in case of FALSIFICATION OF A PUBLIC, • OFFICIAL OR COMMERCIAL DOCUMENT by a PRIVATE INDIVIDUAL, is just the same as ARTICLE 171 – they only differ in that in Art. 171, the offender is a public officer or employee. In ARTICLE 172, yes, the document falsified • is a public, official or commercial document, but, the offender is a private individual even if the offender is a private individual, since the document falsified is a public, official or commercial document, DAMAGE OR INTENT TO CAUSE DAMAGE IS NOT AN ELEMENT.

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Falsification of private document by any person The document falsified is a PRIVATE • DOCUMENT. The offender is any person. He can be a private individual, he can be a private officer or employee for as long as the document falsified is a private document, it necessary that there must be damage caused to a third person or at least the intention of the offender is to CAUSE DAMAGE. Absence of damage or intent to cause • damage, then falsification of a private document will not arise.

Use of falsified document A document has been falsified and the • offender uses the said document. If the falsified document is used in a • JUDICIAL PROCEEDING, again, DAMAGE or INTENT TO CAUSE DAMAGE is NOT AN ELEMENT because it is a judicial proceeding. But if the said falsified document is used in • any other transaction, this time, damage or intent to cause damage is an ELEMENT.

ARTICLE173 – FALSIFICATION OF WIRELESS TELEGRAPH AND TELEPHONE MESSAGES Punishable acts • I. Uttering fictitious, wireless, telegraph or telephone message II. Falsifying wireless, telegraph or telephone message III. Using such falsified message

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If the act punished is UTTERING FICTITIOUS, WIRELESS, TELEGRAPH OR TELEPHONE M E S S A G E S a n d FA L S I F Y I N G W I R E L E S S , TELEGRAPH OR TELEPHONE MESSAGES, note that these can only be committed by a person working in a department, agency or corporation which is engaged in a business of receiving and sending wireless, telegraph and telephone messages. Under the third act – U S I N G FA L S I F I E D W I R E L E S S , TELEGRAPH OR T E L E P H O N E MESSAGES, this time, it


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can be committed by any person.

Articles 174 and 175 refer to the persons who shall be criminally liable in case of falsified document. ARTICLE174 – FALSE MEDICAL CERTIFICATES, FALSE CERTIFICATES OF MERIT OR SERVICE, ETC Under Art. 174, if the • offender is a PHYSICIAN OR SURGEON who issues a false medical certificate in the practice of his profession, he becomes liable under Art. 174. Likewise, Art. 174 • punishes a PUBLIC OFFICER who issues a false certificate of merit, service or good conduct, moral character, etc. And, under Art. 174, ANY • PRIVATE INDIVIDUAL who falsifies a medical certificate or certificate of merit or service or good conduct shall be also criminally liable. T h e o ff e n d e r i s t h e • person who falsifies, issues the false medical certificate or certificate or merit. If the offender is not the • falsifier, but he knows that the said document is falsified and he makes use of the same, his liability is under Art. 175.

ARTICLE175 – USING FALSE CERTIFICATE Under Art. 175, the • offender knows that the medical certificate or certificate of merit has been falsified and despite that knowledge, he makes use of the same.

ILLUSTRATION: Q: So what if the defense counsel is about to present his witness. The witness is a person who was present in the scene of the crime who actually saw the incident – that is according to the defense counsel. However, on the date of the said hearing, the said witness failed to appear, the defense counsel said to the judge: “Your Honor, my witness is in the hospital, he cannot even get out of bed. He is very, very sick.” The judge, however, was doubtful of the said manifestation of the defense counsel and so the judge told the defense counsel: “Okay, let him appear in the next hearing and make sure that he brings with him a medical certificate to show that indeed he can testify in this hearing. With that, the defense counsel informed the witness of the

CRIMINAL LAW 2 said order of the court. The said witness was in that time, healthy, it is just that he was too afraid to testify. However, in the next hearing, he is deemed required to produce a medical certificate showing that he was bedridden. And so, he went to his medical doctor. He asked the doctor to issue a medical certificate saying that he was very, very sick and that he could not get out of bed on the said date. The said doctor issued the said medical certificate and then his witness appeared on the second hearing and presented him to the court. It was submitted to the records of the court. What crime or crimes is/are committed by doctor or the physician as well as by the witness?   A: The PHYSICIAN is liable under Art. 174. He issues a false medical certificate in the exercise or in the practice of his profession. On the other hand, the WITNESS, despite knowledge that it is a falsified medical certificate, still made use of the same and he presented and submitted it to the court.

immediately arise. However, the said false representation, aside from being done knowingly, must be such that he intended to be known by such other person or by public as a representative or agent of Philippine government. II.

ARTICLE176 – MANUFACTURING AND POSSESSION OF INSTRUMENTS OR IMPLEMENTS FOR FALSIFICATION This is the felony that is if • a person was found in possession of unfilled-out forms of driver’s license, he can be held liable for falsification of a public document and liable only in Article 176. Under Art. 176, what was • being punished are: 1. Making or introducing into the Philippines any stamps, dies, marks or other instruments or implements for counterfeiting or falsification. 2. Possessing with intent to use the instrument or implements for counterfeiting or falsification made in or introduced into the Philippines by another person.

ARTICLE177 – USURPATION OF AUTHORITY OR OFFICIAL FUNCTIONS I. Usurpation of authority is committed when a person knowingly and falsely represents himself to be an officer or agent of any department of the Philippine government or agency thereof or of a foreign government. • The crime will immediately arise from the mere act of person of knowingly and falsely representing himself to be an officer or agent of any department or agency of the Philippines or of a foreign country. It is not necessary for the offender to commit any act, to perform any act. It suffices that he falsely represents himself to be an officer or agent of the Philippine government. The crime will


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There is usurpation of official function if any person performs an act pertaining to a person in authority or a public officer of the Philippine Government or of a foreign government or agency thereof, under pretense of official position, and without being lawfully entitled to do so. • It is necessary that the offender performs an act. Mere representation will not suffice. It is necessary that he performs an act pertaining to a person in authority or a public officer of any department or agency of the Philippine government or of a foreign government. • In usurpation of official functions, it is necessary that the act pertaining to a person in authority or a public officer must be under pretense of official position and without being lawfully entitled to do so.

ILLUSTRATION: Q: What if an administrative case was filed against the mayor before the Office of the Ombudsman. During the investigation of the case, the Ombudsman preventively suspended the mayor for a period of six months. The DILG implemented the suspension order and the vice-mayor was made the acting mayor. However, upon advice of his counsel, the suspended mayor began working, began performing the acts of being a mayor after 90 days of preventive suspension. That is because according to his counsel, he can only be suspended for a period of 90 days. So on the 91st day of his suspension, he again began assuming the function of a mayor. He signed documents, he issued memorandum, etc. as the city mayor. Is he liable under Article 177 for usurpation of official function? A: Yes, he is liable for usurpation of official function under Article 177. The reason is that he is still under preventive suspension. Unless and until it is lifted by the Ombudsman and the said lifting was implemented by the DILG, he remains to be a suspended mayor. And for having acted, for having performing an act pertaining to the office of a mayor, he is said to be committed a violation of Article 177, usurpation of official function.

Q: What if there was heavy traffic. So there was no MMDA officer or policeman manning the traffic. One of the owners of the vehicle caught in the traffic alighted from the vehicle and he manned the traffic to ease the flow of the traffic. The said man performed an act pertaining to an officer of the

CRIMINAL LAW 2 MMDA, pertaining to a traffic enforcer. Is the said man liable for usurpation of official function? A: NO. While the man performed however he did not do so under pretense of official position and without being lawfully entitled to do so. There was no intent on his part to falsely represent himself as to be in that position. There was no false pretense of official position therefore he cannot be held liable under Article 177 or usurpation of official function because his act was only done out of pacific (promote peace; to end a conflict) spirit to help ease the said traffic.

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ARTICLE178 – USING FICTITIOUS NAME AND CONCEALING TRUE NAME Punishes two acts: • I. USING FICTITIOUS NAME Committed by any person who shall • use a name other than his real name publicly for concealing a crime, or evade the execution of a judgment, or to cause damage to public interest. ELEMENTS: 1. The offender uses a name other than his real name 2. That he uses that fictitious name publicly 3. That the purpose of the offender is either: a. to conceal a crime; or b. to evade execution of a judgment; or c. to cause damage to public interest. II. CONCEALING TRUE NAME ELEMENTS: 1. The offender conceals— a. his true name; AND b. all other personal circumstances 2. That the purpose is only to conceal his identity

HOW WOULD YOU DISTINGUISH IF THE CRIME COMMITTED IS USING FICTITIOUS NAME OR CONCEALING TRUE NAME? In case of using fictitious name, the use of a • name other than his real name, is done publicly. There is the element of publicity. Whereas, in case of concealing true name, it is not necessary that the use of another name, concealing his true and real name must be done publicly. Using fictitious name and concealing true • name differ in purposes. In case of using fictitious name, the purpose is to conceal a crime, evade the execution of judgment or to cause damage to public interest. On the other hand, in concealing true name, the only purpose of the offender is to conceal his true and real identity.

ANTI-ALIAS LAW (C.A. No. 142, as amended) SO RELATED IN ARTICLE 178 IS C.A. 142 AS AMENDED


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What is an alias? What does C.A. 142, as amended, or the Anti-Alias Law provide? According to the SC, an alias is a name or names use intended to be used by a person publicly and habitually, usually in business transaction other than the name registered at birth for the first time before the local civil registrar. Under C.A. 142 as amended, except as pseudonym, in literary, cinema, television, radio and other entertainment purposes, and in athletic events wherein the use of a pseudonym is a normal practice, no person can use any name other than his name by which he is registered at birth at the local civil registrar or by which he is registered by the Bureau of Immigration upon his entry into the Philippines. The use of any other name must only be upon approval by the judicial or competent authority. Therefore, no person can use any other name other than the name by which he is baptized at the office of the civil registrar in your place other than the name by which he is recorded in Bureau of Immigration, if case he is a foreigner coming here in the Philippines. He can only use his name. EXCEPT if he is an actor, if he is an athlete, then he is allowed to use a pseudonym. When he is a writer of a book, then he is allowed to use a pseudonym, a pen name other than his real name because it is a normal practice OR if he files the use of a substitute name before the court and he is allowed by judicial or competent authority to use any other name, then he can also use another name. But outside these, a person can only use the name by which he is registered at the office of civil registrar.

CESARIO URSUA v. CA The said accused made use of a different • name. he used the name of Oscar Perez in the office of the Ombudsman as he was trying to get a copy of the complaint filed against him. It was however discovered that a case of violation of CA 142 was filed against him. The SC held that he is not criminally liable. The • SC acquitted the accused because according to the SC, the use of the name Oscar Perez in an isolated transaction, without any showing, absent an evidence that henceforth he wanted to be known by the name of Oscar Perez in not within the prohibition of CA 142 as amended. There was no evidence that showed that henceforth he wanted to be known by that name. There was no showing that henceforth, he wanted to be called by the said name therefore it cannot be said that Oscar Perez is an alias of the accused.

PEOPLE v. ESTRADA

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In this case, the former president made use of the name Jose Velarde in signing a trust account. So he signed a trust account, using the name Jose Velarde and so he was charged with violation of CA 142 as amended. Again, the SC said, the use by Erap of the name Jose Velarde in a single, isolated transcation, without any showing that henceforth he wanted to be known by such name, is not within the prohibition of CA 142 as amended. First, it was not done publicly and was in fact done secretly in the presence of Laquian and Chua and the said act of signing does not make it public because these two are his close friends therefore it was done secretly, in a discreet manner. Hence, it was not done publicly. It was also not done habitually. The element of habituality is not present because there was no showing that in any other transaction, he made use of the name Jose Velarde. Hence, he was also acquitted although convicted by Sandiganbayan, he was acquitted by the SC.

Q: What if a lawyer was having a massage in a sauna bath parlor. He did not know that as a front it is a sauna bath parlor but in truth and in fact, it was a prostitution den. At the time that he was having this massage service, the police raided the place because they were able to secure a search warrant. And among those arrested was the said attorney. The said attorney was brought to the PNP station and he was asked of his name, ashamed to reveal his true identity, his true name, he said that he was Y and did not state that he was Atty. X. However, when he was asked his residence, he stated the truth. As of the name of his wife, he stated the truth. As of the name of his children, he stated the truth. Is he liable for using fictitious name? A: He is not liable for using fictitious name. First, he did not do so publicly. Second, his use of the name was not done to conceal a crime, to evade the execution of sentence or to cause damage to public interest—none of these purposes is present; therefore he is not liable for using fictitious name. Is he liable for concealing true name? • No, he is not liable for concealing true • name. Although he concealed his real name, Atty. X, he did not conceal his other personal circumstances. He divulged his address. He divulged the name of his wife, the names of his children; therefore, it cannot be said that he has the intention to conceal his true identity. In fact, his true identity can easily be verified just by going to the said address; therefore he is not also liable for concealing true name. Is he liable under CA 142, as amended? •


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He is also not liable under CA 142, as amended, because the use of the name Y in a single transaction, in a single isolated transaction, without any showing that henceforth he wanted to be known as Y is not within the prohibition of CA 142, as amended.

ARTICLE179 – ILLEGAL USE OF UNIFORMS AND INSIGNIA Committed by any person who makes use of • any insignia, uniform or dress which pertains to an office not being held by the offender or to a class of person of which he is not a member and he makes use of such insignia, uniform or dress publicly and improperly. ELEMENTS: 1. The offender makes use of INSIGNIA, UNIFORM or DRESS 2. That the insignia, uniform or dress pertains to an office not being held by the offender or to a class of person of which he is not a member. 3. That the said insignia, uniform or dress is used publicly and improperly. The offender uses the insignia, uniform or • dress of an office not held by him or a by a class of person of which he is not a member and he used the same publicly and improperly.

ILLUSTRATION: Q: What if a person was wearing a uniform. So he said that it was a uniform of a certain organization known as H world but in fact, no such organization ever existed. Is he liable under Article 179? A: No, he is not liable of Illegal use of insignia, uniform or dress Article 179. The reason is that H world does not belong to any office, doesn’t refer to a class of persons; therefore, he is not liable under Article 179.

Q: What if a person made use of a uniform of a prisoner. So you see a person, he was receiving a holy communion, he was wearing an orange t-shirt with a big letter P at the back which means Prisoner. Can he be held liable under Article 179? A: He is not liable of Illegal use of insignia, uniform or dress under Article 179. Although he used the uniform of a prisoner, it is not an office held by the offender, it is not also a class of persons. When you say a class of persons of which he is a member, it refers to a dignified class of persons. He is assuming that he belongs to the said class of persons. Here, he is even belittling himself because he was wearing a uniform of a prisoner. Hence, it cannot be said that he violated Article 179.

FALSE TESTIMONY (ART 180, 181, 182)

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False testimony can either be false testimony in criminal cases (Articles 180 and 181), false testimony in civil cases (Article 182) and false testimony in other cases. False testimony in criminal cases can either be: (1) false testimony against a defendant (Article 180) and (2) false testimony favorable to defendant (Article 181).

ARTICLE180 – FALSE TESTIMONY AGAINST A DEFENDANT In a criminal proceeding, the offender-witness • testified falsely against a defendant knowing that his testimony is false and then the said defendant is either acquitted or convicted.

ELEMENTS: 1. That there be a criminal proceeding 2. That the offender testifies falsely under oath against the defendant therein. 3. That the offender who gives false testimony knows that it is false. 4. That the defendant against whom the false testimony is given is either acquitted or convicted in a final judgment. (People v. Maneja)

ARTICLE181 – FALSE TESTIMONY FAVORABLE TO DEFENDANT In a criminal proceeding, the offender-witness • testified falsely in favor of the defendant and he knew that his testimony is indeed false. •

Whether it be a false testimony against or false testimony in favor of a defendant, it is immaterial whether the court will consider or not the said false testimony. The case may be filed.

ILLUSTRATION: Q: What if A is being prosecuted for the crime of homicide, for having killed the victim. So while he is being prosecuted, the fiscal presented a witness. This witness was also brought in by the heirs of the victim. The heirs of the victim said that the witness saw the said act of killing. The fiscal believed and the fiscal presented the said witness. The witness however was not present at the scene of the crime but in his testimony the witness said that he was present at the scene of the crime and that he actually saw the accused stabbing the victim to death. The accused, A knew that the witness was testifying falsely because he knew that at the scene of the crime, it was only he and the victim who were present. After trial on the merits, the judge, acquitted the said accused A. In other words, the judge did not give weight to the testimony of the false witness. Can A still file a case against the false witness?


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A:Yes, A can still file a case of false testimony against the false witness. He can still file a case of false testimony against the said false witness even of the court did not consider the said false testimony. Even if the court did not give any merit on the said false testimony and acquitted him. The crime will arise the moment the said offender testified falsely in open court whether in favor or against a defendant.

Q: What if in the same case, A was being prosecuted for homicide. Then the prosecution presented the witness. The witness testified falsely against the defendant saying that he saw the actual act of killing. After trial on the merits, the judge convicted the accused, the judge believed the false testimony and so the judge convicted him. Upon conviction, within 15 days from the promulgation of judgment, the said accused, the said convict, filed an appeal before the CA. While the case was pending before the CA, can the said accused, the convicted person, already file a case of false testimony against the false witness who testified against him? A:Not yet. Any case would still be a premature case. In fact, you would not know what court will have jurisdiction. You would not know if the court that will have jurisdiction over the false testimony is the RTC or the MTC because the penalty to be imposed on the false witness is always dependent on the penalty imposed on the convict. Under Article 180, if the defendant has been • convicted and the penalty imposed is capital punishment or death then the false witness shall be imposed with a penalty of reclusion temporal. If the defendant, upon conviction is imposed with a penalty of reclusion perpetua and reclusion temporal, the penalty will be imposed on the false witness is prision mayor. If the said defendant is convicted and the penalty imposed on him is any other afflictive penalty, the penalty to be imposed on the false witness is prision correcional. On the other hand, if the penalty imposed on the said defendant is prision correcional, arresto mayor, fine or he was acquitted. If he was acquitted, the penalty to be imposed on the said person who testified falsely is arresto mayor. So in this case, the penalty on the false • witness is always dependent on the penalty to be imposed by the court on the defendant; therefore, there must first be a final conviction by final judgment. NOTE: if it is an acquittal, the case can be • immediately filed because an acquittal is immediately executory. You cannot appeal an acquittal. It is immediately executory.

Q: So the case was filed against A for homicide, here comes a witness, the witness testified falsely in favor of the

CRIMINAL LAW 2 accused. Can the private complainant, the heirs of the victim, immediately file a case of false testimony against the witness right after the giving thereof? A: Yes, because in case of false testimony in favor of the defendant, the penalty of the false witness is not dependent on the penalty to be imposed on the said accused or defendant.

•In order to amount to perjury, it is necessary that the said oath must be given before an officer duly authorized to receive and administer. Otherwise, it cannot be considered as perjury because the essence of perjuryis the violation of the solemnity of oath. •If the person who received the oath is not duly authorized, it cannot be said that there is a violation of the solemnity of the oath.

ARTICLE182 – FALSE TESTIMONY IN CIVIL CASES Right after the giving of the false testimony, the • private complainant or the aggrieved party, can immediately file a case against the false witness who testified in favor of the defendant. ELEMENTS: 1. The testimony must be given in a civil case 2. The testimony must relate to the issues presented in said case (relative or pertinent) 3. The testimony must be false 4. The false testimony must be given by the defendant knowing the same to be false. 5. The testimony must be malicious and given with intent to affect the issues presented in the said case (U.S. v. Aragon) In case of false testimony in a civil case, right after • the giving of the false testimony, the false witness can be immediately prosecuted in court. In order to amount in false testimony in civil cases, • there must be litigation. Take for example a sum of money, breach of contract. If the false testimony is given in a special proceeding, for example, petition for nullity of marriage, petition for separation, petition for habeas corpus, these are special proceedings and a false testimony of a person who testified falsely during this special proceeding, the case is under Article 183, false testimony in other proceedings.

ARTICLE183 – PERJURY PERJURY is the willful and deliberate • assertion of falsehood on a material matter made before an officer duly authorized to receive and administer oath. ELEMENTS: 1. The accused made a statement under oath or executed an affidavit upon a material matter •There are two ways of committing perjury: The offender either: 1. Makes a statement under oath (he makes a false testimony); or 2. Executes an affidavit on a material matter (if it is an affidavit, it is also required under oath) 2. The said statement under oath or affidavit was made before a competent officer duly authorized to receive and administer oath


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3.That in the said statement or affidavit, the offender makes a willful and deliberate assertion of falsehood •It is necessary for perjury to arise that the o f f e n d e r d e l i b e r a t e l y, k n o w i n g l y ascertained a falsehood. There was a deliberate intent on his part; therefore, good faith is a defense in perjury. •Perjury likewise cannot be committed out of mere negligence. It is necessary that there must be a deliberate intent on his part to assert a falsity either in the statement or affidavit. 4.

The said statement or affidavit containing falsity is required by law. •If it is not required by law then it cannot be considered as a crime.

ILLUSTRATION: Q: What if X made a false statement in a criminal proceeding, what crime is committed? A: The crime committed is FALSE TESTIMONY.

Q: A makes a statement in a labor case against B. What crime is committed? A: The crime committed is PERJURY. If the false statement under oath is made in a • judicial proceeding whether it be a criminal or civil proceeding, the crime committed is FALSE TESTIMONY. If the said false statement, however, is made in a non-judicial proceeding, administrative proceedings, or quasi-judicial proceedings, then the crime committed is PERJURY. So if the false testimony or the false statement is made in a labor case, in an administrative case, in an application for search warrant, during the preliminary investigation, before the fiscals’ office, the crime committed is perjury.

Q: What if the offender makes false narration of facts in a cedula. The offender makes a false narration of facts in a driver’s license. What crime is committed? A: FALSIFICATION.

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Q: What if the offender makes a false narration of facts in a statement of assets, liabilities and net worth. So a public officer filed a statement of assets, liabilities and net worth. It contains falsities, false narration of facts. What is the liability? A: The liability is PERJURY.

WHERE LIES THE DIFFERENCE BETWEEN FALSIFICATION AND PERJURY? In falsification, the document is not required to be • under oath. In case of perjury, the document is required to be under oath.

H O W A B O U T T H E D I F F E R E N C E O F FA L S E STATEMENT AND PERJURY? If the false statement is made in a judicial • proceeding, it is false testimony. If the false statement is made in a non-judicial proceeding or administrative proceeding or quasi-judicial proceeding, it is perjury. ILLUSTRATION: Q: An applicant for the bar filled out an application form for the bar, there was a statement therein, “Have you ever been fined or convicted of any crime?” and the answer was no, however, in truth and in fact, he has already been fined for the crime of jaywalking. He answered no and then this application for the bar is required to be under oath. He was looking for a notary public since it was a Sunday, there was no office opened so he went to the legal office of his father, hoping that there was a lawyer there. However, there was only the janitor and he asked the janitor to sign in the notary public part and then submitted it to the office of the bar confidante. Is the said applicant for the bar liable for perjury or is he liable for falsification? A: He is liable of FALSIFICATION and not of perjury because the person who received and administered the oath is not a confidante officer duly authorized to receive and administer the oath. He was a mere janitor and not a notary public. As such, the crime committed is falsification. Again, the essence of perjury is the violation of the solemnity of the oath.

Q: A wrote a love letter to the girl that he is pursuing. In the said love letter, he stated falsities such as “You are the only one in my life.” when in truth there were three of them. He stated “I love you and I miss you” and they were all falsities. He even asked it to be notarized and sent it to his third girlfriend. Is he liable for perjury? A: No, he is not liable for perjury. He is not liable for perjury because the said love letter is not required by law. The fourth element requires, to amount to perjury, the sworn statement under oath or the said affidavit must be required by law because it is a crime against public interest not a crime against personal interest.


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Q: What if in a case submitted in a fiscal’s office, so there was a complaint and attached thereto is a sworn statement. In the said sworn statement, the witness said that he saw the accident. He saw the accused bumped the victim. According to him, at the time, he was watching Saksi, when suddenly a commotion occurred outside, he ran out of the window, he saw at that particular time the accused hitting the said victim with his vehicle and so he saw the accused that caused the death of the victim. That was his statement in the affidavit filed to the fiscal’s office. During investigation, however, it was discovered he was not watching Saksi, he was watching Bandila, the news program in ABS-CBN and not the news program in GMA. Is he liable of perjury? A:No, he is not liable of perjury. Although it was under oath, administered by a fiscal, still it is no perjury because it is not on a material matter. Whatever it is that he was watching at the time, even if it is cartoon, it doesn’t matter. What matters is that he heard the commotion, he ran to the window, and he saw the accused bumping the victim. He saw that it was the accused who killed the victim and that it was the car of the accused that hit the victim. Only then, it will be considered as perjury but whatever he was watching, it was immaterial. It was not on a material matter; therefore it will not amount to perjury.

SUBORNATION OF PERJURY is committed by a person who knowingly and willfully procures another to swear falsely and the witness suborned does testify under the circumstances rendering him guilty of perjury. NOTE: Subornation of perjury is not expressly penalized in RPC; but the direct induction of a person by another to commit perjury may be punished under Article 183 in relation to Article 7, meaning, the crime is plain perjury but the one inducing another will be liable as principal by inducement and the one who testified as principal by direct participation.

ARTICLE184 – OFFERING FALSE TESTIMONY IN EVIDENCE Committed by any person who shall offer in • evidence any false testimony or any false witness either in a judicial proceeding or in any official proceeding. ELEMENTS: 1. The offender offered in evidence a false witness or false testimony. 2. The offender knew the witness or the testimony was false. 3. The offer was made in a judicial or official proceeding. Is this the same as subornation of perjury? • Subornation of perjury is committed by any • person who procures a false witness in order

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to perjures himself and testify falsely in a case. There is no such crime as subornation of perjury under the present RPC because we already have Article 184. Article 184 is committed when any person who procures a witness and offers him as evidence in court can be held liable under Article 184 or he can be held liable as a principal by inducement in false testimony or as a principal by inducement in perjury; therefore subornation of perjury is not necessary and it is not a crime under Philippine jurisdiction, under the RPC.

4. The accused had the intent to cause the reduction of the price of the thing auctioned.

ARTICLE185 – MACHINATIONS IN PUBLIC AUCTIONS There are two acts punishable under Article • 185 I. SOLICITING GIFT OR PROMISE •By soliciting any gift or promise as a consideration for refraining from taking part in any public auction. •The mere act of soliciting any gift or promise, so that he will refrain from taking part of the public auction, will already give rise to the crime. It is not necessary that he actually received the gift, it is not necessary that he actually will not participate in the said auction. ELEMENTS: 1. There be a public auction. 2. The accused solicited any gift or a promise from any of the bidders. 3. That such gift or promise was the consideration for his refraining from taking part in that public auction. 4. The accused had the intent to cause the reduction of the price of the thing auctioned. II.

ATTEMPTING TO CAUSE BIDDERS TO STAY AWAY •By attempting to cause bidders to stay away from an auction by threats, gifts, promises or any other artifice •The mere attempt to cause bidders not to participate in the said public auction by threats, gifts or promise will already give rise to the crime. It is not necessary that the bidders would not actually participate. ELEMENTS: 1. There be a public auction 2. The accused attempted to cause the bidders to stay away from that public auction. 3. It was done by threats, gifts, promises or any other artifice.


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In order to be liable for this crime, whether it be the act of solicitation or the act of attempting to cause bidders to stay away from public auction, it is necessary that the intention of the offender is to cause the reduction of the price of the thing which is the subject of the public auction. The acts complained of must be done for the purpose of reducing the price of the thing being auctioned.

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In public auction, it is necessary that the public must be able to get the best price for the thing being auctioned. If there will be less bidders, less participants in the said public auction, then the public will not be able to get the best price for the thing subject of the public auction. Here, if the non-participation of the other bidders was caused by a person, then he is liable under Article 185. Again, the intention of the offender is to cause the reduction of the price of the thing which is the subject of the public auction.

ARTICLE186 – MONOPOLIES AND COMBINATIONS IN RESTRAINT OF TRADE Acts punished: • I. C O M B I N AT I O N TO P R E V E N T F R E E COMPETITION IN THE MARKET •This is committed by any person who shall enter into any contract or agreement or taking part in any combination whether in the form of trust or otherwise, in restraint of trade or commerce or to prevent by artificial means free competition in the market. II. M O N O P O LY T O R E S T R A I N F R E E COMPETITION IN THE MARKET •This is committed by monopolizing any merchandise or object of trade or commerce or by combining with any other person or persons in order to alter the prices thereof by spreading false rumors or making use of any other artifice to restrain free competition in the market. III. M A N U FA C T U R E R , P R O D U C E R , O R PROCESSOR OR IMPORTER COMBINING, CONSPIRING OR AGREEING WITH ANY PERSON TO MAKE TRANSACTIONS PREJUDICIAL TO LAWFUL COMMERCE

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1. The offender IMPORTS, SELLS or DISPOSES any article or merchandise made of gold, silver, other precious materials, or their alloys 2. That the STAMPS, BRANDS, or MARKS of those articles or merchandise FAIL TO INDICATE the actual fitness or quality of said metals or alloys 3. The OFFENDER KNOWS that the stamps, brands or marks fail to indicate the actual fitness or quality of the metals or alloys.

The FIRST TWO ACTS under Article 186 can be committed by any person and not necessarily by manufacturers, producer or processors. The THIRD ACT however, can be committed only by manufacturers, processors, producers and importers who combined with any other person or persons in order to commit a transaction prejudicial to lawful commerce or to increase the market price of any merchandise or object of commerce Whether it be the first, second or third act, the mere conspiracy in order to restrain or to prevent free competition will already give rise to the crime. It is not necessary that there be actual restraint in trade or commerce.

ILLUSTRATION: Q: What if Petron, Caltex and Shell connived, combined and agreed with one another to hoard fuel. They know that the fuel prices will increase by March and so they decided to hoard it. Can they be held liable under Article 186? Juridical corporations cannot be the subject of • criminal action. First, it cannot be said that juridical persons can act with intent. Second, you cannot imprison a juridical person in case of conviction. So if the offender is a juridical entity, who shall be held liable? The president, the directors or any of the • members of the said corporation, association or partnership, who knowingly permitted and allowed this combination or monopoly in restraint of trade or commerce. Note that they must have knowingly permitted the same otherwise, they cannot be held criminally liable.

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If the objects, which are the subject of this monopoly or combination in restraint of trade or commerce are prime commodities such as food, motor fuel, lubricants, it is not even necessary that there be conspiracy. A mere proposal, a mere intial step to hoard, to prevent free competition in the market will already give rise to the crime.

ARTICLE187 – IMPORTATION AND DISPOSITION OF FALSELY MARKED ARTICLES Committed by any person who shall imports, • sells or disposes any article or merchandise made of gold, silver, other precious materials, or their alloys ELEMENTS:


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This is considered a criminal act because the offender, despite knowing that the articles or merchandise that he imported are misbranded, he still imports the same, sells the same or disposes the same

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Mere importation is a punishable act; therefore it is not necessary for the offender to become liable under Article 187 that he must have sold the misbranded articles or that he must have disposed the article because mere importationwill already give rise to the crime.

TITLE FIVE CRIMES RELATIVE TO OPIUM AND OTHER PROHIBITED DRUGS

COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 (RA 9165) SECTION 4 – IMPORTATION OF DANGEROUS DRUGS AND/OR CONTROLLED PRECURSORS AND ESSENTIAL CHEMICALS Is committed by: • Any person, who, unless authorized by law, shall import or bring into the Philippines any dangerous drug, regardless of the quantity and purity involved. •

In one Supreme Court decision, it held that: For one to be liable for importation of dangerous drugs, it is necessary to be proven that the dangerous drugs that were taken in a vessel came from a foreign country with the said dangerous drugs on board the said vessel; therefore the prosecution must prove that the vessel which came into the Philippine ports had with it the dangerous drugs. Only then can it be said that the dangerous drugs have been imported from another country.

SECTION 5 – SALE, TRADING, ADMINISTRATION, DISPENSATION, DELIVERY, DISTRIBUTION AND TRANSPORTATION OF DANGEROUS DRUGS AND/OR

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Selling Dangerous Drugs Act of giving away any dangerous drug and/or • controlled precursor and essential chemical whether for money of any other consideration.

ELEMENTS OF SALE OF ILLEGAL DRUGS: 1. The identity of the buyer and the seller It is necessary that the identity of the • buyer and the seller are clearly identified. 2. The object and the consideration 3. The delivery of the thing sold and the payment thereof •

Q: How about the poseur-buyer? Is it necessary for the poseur buyer to testify in court? What if the prosecutor failed to have the poseur-buyer testify in court? Does it mean to an acquittal?

Because if the dangerous drugs had not been delivered, the third element is lacking, the sale is abds forted, there is only ATTEMPTED ILLEGAL SALE of dangerous drugs not consummated illegal sale of dangerous drugs because the third element is lacking.

Q: What if a person has been prosecuted for Illegal sale of Dangerous Drugs. The said operation was a buy bust operation. It is an entrapment procedure which is allowed by law. Here, the criminal/evil intent originated mainly from the offender himself that’s why it is not considered as an absolutory cause. Here, the Police Officers employed means and methods to entrap and capture the criminal in flagrante that is in the actual act of committing the crime. So what if in the buy bust operation, the accused drug seller was arrested. In the said operation, the informant acted as the posuer buyer. He was given marked money. The policemen ran into the place of the drug seller. Only the poseur-buyer knocked at the door of the drug seller. The drug seller came out and the poseur-buyer said that he wanted to buy dangerous drugs in the amount of P200. The drug seller said okay and gave 2 plastic sachets of dangerous drugs to the poseur buyer. However, the poseur-buyer without having given the marked money yet to the drug seller negligently removed his eyeglasses so the Police officers thought that that was the signal that the sale has been consummated. They arrived at the said place and arrested the drug seller. The marked money was not given to drug seller. Does that constitute his acquittal?

A: No provided that all the elements are

present: Note that the second element only requires the crime must be established. The corpus delicti and the price must be established. It does not require that there must be giving of the price/money. It suffices that the crime was established.


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When the poseur-buyer said that he wants to buy illegal drugs for P200, the price has already been established. Therefore, all the elements will suffice even if the marked money has not been given by the buyer to the seller. In fact, even if the marked money is not presented in court it will not be a hiatus on the evidence of the prosecution provided that the police officers and the witnesses were able to prove the crime of illegal sale of dangerous drugs.

A: The testimony of the poseur-buyer is not indispensable in a case of illegal sale of dangerous drugs. It is not indispensable because the transaction can be proven by the other police officers who have witnessed the transaction. However if the seller denies the existence of the said transaction; it is the incumbent upon the prosecution to grove the said transaction by the presentation the said poseur-buyer.

General Rule: The testimony of the poseur-buyer is not indispensable in a case of illegal sale of dangerous drugs. Exemption: When the accused denies the existence of the said transaction. If the prosecution failed to present the poseur-buyer to testify in court, it will amount to the dismissal of the case.

Q: Let’s say there is this cigarette vendor on the side walk and here comes a man who parked his car near the side walk. He called the cigarette vendor and told the cigarette vendor to deliver a package to the man inside the car which is parked on the other side of the street. He told the cigarette vendor that he will give him P1000 if the he agreed to deliver the package to the man inside the car which is parked at the other side of the street. The cigarette vendor asked the man what is inside the package however the man said “it’s none of your business to know what’s inside that. I will give you P1000 if you deliver this to the man inside that car parked at the other side of the street.” So the cigarette vendor with the P1000 got the bag and delivered it to the man at the other side of the street. He knocked at the window and the man lowered his window. However at the time of the said delivery the police officers arrived and arrested the cigarette vendor. Can he be prosecuted for delivery of dangerous drugs? Can he be convicted for delivery of dangerous drugs?

CRIMINAL LAW 2 A: He can be prosecuted for delivery of dangerous drugs however it is a defense on his part that he has no knowledge that the thing he is delivering is dangerous drugs because under RA 9165, delivering has been defined as the act of knowingly passing a dangerous drug to another, personally or otherwise, and by any means, with or without consideration. Therefore it is necessary that the one delivering dangerous drug must have the knowledge of the thing that he is delivering is dangerous drug.

DELIVER – an act of knowingly passing a dangerous drug to another, personally or otherwise, and by any means, with or without consideration.

SECTION 6 – MAINTENANCE OF A DEN, DIVE, OR RESORT Any person who maintains a den, dive, or resort • for the use of illegal drugs are liable under this section.

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Are the owners, persons maintaining the said dangerous drug dens are only the ones who are criminally liable? Under Section 7 of the act, even the • employees who are aware of the nature of the said den, dive or resort for the use and sale of dangerous drugs are also criminally liable. Likewise, even persons who are not employees which knowingly visit the same place despite the knowledge of the nature of such den, dive, or resort are also criminally liable.

Q: What if the said den, dive, or resort is owned by a third person? Let’s say A and B rented a house. After giving the down payment, A and B went to the said house. A and B used the house as a den for illegal sale of dangerous drugs. The police officers were able to secure a warrant and A and B were arrested. Can the owner of the said house be criminally liable for the maintenance of the said den? How about the house? Can it be forfeited in favor of the government?

A: Under Sec. 6, the said den, dive, or resort for the use of illegal sale of dangerous drugs shall be escheated in favor of the government provided that the following circumstances concur: 1. The information must allege that the said place is intentionally being used in furtherance of illegal sale/use of dangerous drugs. 2. Such intent must be proven by the prosecutor.


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3.

The owner of the said house must be included as an accused in the information or complaint. If these 3 elements are present; then the said house shall be confiscated and escheated in favor of the government.

SECTION 8 – MANUFACTURE OF DANGEROUS DRUGS The presence if any controlled precursor and • essential chemical or laboratory equipment in the clandestine laboratory is a prima facie evidence of manufacture of any dangerous drug.

S E C T I O N 11 – I L L E G A L P O S S E S S I O N O F DANGEROUS DRUGS ELEMENTS OF POSSESSION OF ILLEGAL

DRUGS:

1. The accused was in possession of prohibited drug In illegal possession of dangerous drugs; • the word possession does not only mean actual possession of the dangerous drug in his body. It suffices that the said dangerous drug is found in a place under the control and dominion of the said offender.

Q: By virtue of a search warrant the police officers conducted a search in the house of A to look for cocaine. They looked inside the bedroom and underneath the pillow on the bedroom of A, the found several sachets of cocaine. Can it be held that A is in possession of the said drugs?

A: Yes because it is under his control and dominion. Possession does not only mean physical or actual possession. It also means as constructive possession for as long as the dangerous drugs is under his control and dominion. 2.

Such possession is not authorized by law The offender is not authorized by law to • possess such drugs. Dangerous drugs are per se contraband. They are per se illegal items. The presumption is that such possession is without authority of law. Therefore the burden of proof is on the accused to prove that he has the authority to possess unlike illegal possession of firearms. Illegal possession of firearms is not per se contraband therefore in illegal possession of firearms, it is the prosecution who has the burden of proof that the said person lacks license.

CRIMINAL LAW 2 3.

•

The accused freely and consciously possessed the prohibited drug There must be an animus posidendi on • the part of the said accused. This animus posidendi on the part of the accused is a prima facie presumed by law. The moment a person was found in possession of dangerous drugs, the presumes that the person knows that the thing in his possession is dangerous drugs.

SECTION 12 - ILLEGAL POSSESSION OF DRUG PARAPHERNALIA e.g. A person was found in possession of empty plastic sachets and other instruments used for using dangerous drugs. He is therefore liable for Illegal Possession of Drug Paraphernalia.

Q: What if a person was found in possession of drug paraphernalia can they avail the benefit of probation? A: Yes he can avail for probation. The penalty prescribed by law for illegal possession of drug paraphernalia’s is an imprisonment ranging from 6 months and 1 day to 4 years which is within the probationable penalty. Under Sec. 24 of R.A. 9165, any person convicted for drug pushing and drug trafficking, regardless of the penalty imposed by the Court, cannot avail for probation.

So under Sec. 24; only those who are convicted of drug pushing and drug trafficking which cannot avail for probation therefore for any other violation of Dangerous Drugs Act, for as long as the penalty imposed by the court is 6 years and below, he can avail for the benefit of probation. But if he is a drug trafficker/ pusher, one who is engaged in selling dangerous drugs, he cannot avail of the benefit of probation even if the penalty imposed by the court is within the probationable penalty because it is expressly prohibited by Sec. 24 of RA 9165.

SECTION 13 – ILLEGAL POSSESSION OF DANGEROUS DRUGS DURING PARTIES, SOCIAL GATHERINGS OR MEETINGS in Sec. 13, if any person was found in possession • of dangerous drug in a party, social gatherings or meetings, or in the proximate company of at least two (2) persons; the maximum penalty prescribed by law shall be imposed.

SECTION 15 – ILLEGAL USE OF DANGEROUS DRUGS ELEMENTS OF ILLEGAL USE OF DANGEROUS DRUGS: 1. The offender was apprehended/ arrested in the actual use of dangerous drugs.


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The first element requires that the offender must be actually using, sniffing the dangerous drugs.

2.

After a confirmatory test; he was found to be positive for use of any dangerous drugs. He was at the PNP Crime Lab and • after the confirmatory test, he was found to be positive for use of dangerous drugs.

3.

No other amount of dangerous drugs must be found in his possession. If any other amount of dangerous • drugs was found in his possession, then the proper charge would no longer be illegal use but illegal possession of dangerous drugs.

Q: The police officers saw a man snatched the cell phone of a woman. Since the police officers saw the man in committing the crime inflagrante delicto of actual act of snatching and the man runaway, they followed the man. The man entered the house. The police officers upon entering the house saw 3 men on a round table; they were in the actual act of sniffing shabu. They were arrested and they were asked to stand up and fold their arms up and they were searched. Upon the search, they found out that these 3 men; each of them was found a sachet of illegal drugs in their pockets aside from the dangerous drug that they were using. What cases will you file against the 3 men?

A: Illegal Possession of Dangerous Drugs. No illegal use of dangerous drugs because the third element is one thing. Let’s say after the confirmatory test they were found to be positive however 3 elements must concur: 1st element: They were caught in the actual act of sniffing shabu. 2nd element: After confirmatory test they were found positive of the use of dangerous drugs however the 3rd element is lacking because they found to have in their possession a plastic sachet of other dangerous drugs other than the one they used. Therefore the proper crime charged is illegal possession of dangerous drugs.

SECTION 21 – PROCEDURE IN THE SEIZURE AND CONFISCATION OF DANGEROUS DRUG The apprehending team which has the initial possession of the seized/confiscated dangerous drugs shall: 1. Inventory the dangerous drugs 2. Take photographs of the same in the presence of the accused or from the person whom the dangerous drugs

CRIMINAL LAW 2 have been confiscated or in the presence of his counsel, a representative from the media, a representative from the Department of Justice, and an elected public official who shall be given a copy of the said inventory and who shall be required to sign the same.

Procedure: 1. Upon seizure/ confiscation of dangerous drugs, the same must be stated in the inventory list. 2. There must be a picture taking of the dangerous drugs in the presence of the accused or from the person whom the dangerous drugs have been confiscated or in the presence of his counsel, a representative from the media, a representative from the Department of Justice, and an elected public official. 3. The elected public official must be required to sign the inventory list and shall be given a copy of the same.

Q: What if the police officers failed to comply with this procedure? In People vs. Sta. Maria, the police officers failed to comply with this procedure however there was conviction. However, in the case of Dolera vs. People; the police officers failed to comply with Sec. 21 procedure and this time there was an acquittal. Why is there an acquittal in the case of Dolera and why is there a conviction in the case of Sta. Maria?

A: The Supreme Court held that even if there is failure to comply with the procedure underlined in Sec 21 of RA 9165 by the arresting officers, there will still be conviction if the said non-compliance is due to justifiable reasons and provided that the police officers were able to preserve the integrity and evidentiary bond of the confiscated dangerous drugs this is in consonance with the chain of custody rule.

If the police officers were not able to comply with the procedure due to justifiable cause, they must be able to preserve the integrity and evidentiary bond of the confiscated dangerous drug that is; right after confiscation, it must be marked to ensure that it was the dangerous drugs taken from the accused and must be turned over to the forensic laboratory for testing.

CHAIN OF CUSTODY RULE What is the Chain of Custody rule? (People v • Gutierrez) It is defined as the duly recorded authorized • movements and custody of dangerous drugs


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from the time of confiscation/seizure to the receipt in the forensic laboratory to safekeeping to presentation in court for destruction. •

What is the purpose Chain of Custody rule? The purpose of Chain of Custody rule is to • ensure that the dangerous drug seized/ confiscated from the accused is the very same dangerous drug which has been tested by the forensic chemist and it is the very same dangerous drug presented in court that is; there has been no •

substitution of evidence. Dangerous drugs are so small. There can be a replacement of the effects therefore this Chain of Custody rule will ensure that there will be no substitution of the very same dangerous drug seized/confiscated from the accused at the time that they were presented to the court.

Q: What if a person is charged for illegal possession of dangerous drugs and during his arraignment, he pleaded not guilty and during the pre-trial, he said that he will change his plea if he will be allowed to plead guilty for a lesser offense of illegal possession of drug paraphernalia. So he wanted to avail of the plea-bargaining rule under the rules of court. Under the plea-bargaining rule, you can plead guilty to a lesser offense provided that the said lesser offense is necessary included in the offense charged. Here, the charge is illegal possession of dangerous drugs; can he plead for a lesser offense of illegal possession of drug paraphernalia?

A: He cannot because Sec. 28 of R.A. 9165 provides that any person charged in violation of any of the crimes charged under this act cannot avail of the plea-bargaining under the rules of court. Therefore any person charged in violation of any of the punishable acts under R.A. 9165 cannot plead guilty to a lower offense.

SECTION 25 – A POSITIVE FINDING FOR THE USE OF DANGEROUS DRUGS SHALL BE A QUALIFYING AGGRAVATING CIRCUMSTANCE

Q: A killed B. The police officers arrested A and they brought him to the crime lab to be tested for the use of illegal use of dangerous drugs. After testing, he was found positive for the use of dangerous drugs. What is the effect of it in the criminal liability of A? A: Sec 25 states the a positive finding for the use of dangerous drugs shall be a qualifying aggravating circumstance.

CRIMINAL LAW 2 •

What is the effect of a qualifying aggravating circumstance? It changes the nature of the crime or even • without changing the nature of the crime it will bring about a higher imposition of penalty.

SECTION 26 –ATTEMPT OR CONSPIRACY Express exception to the general rule that in case • of violation of a penal law, there are no stages and there is no conspiracy. •

As a rule, in case of violation of penal law, we have no attempted stages. In violation of special penal laws, conspiracy unless expressly provided because these are only for violation of the RPC, for felonies. One of those exceptions is under Section 26 of RA 9165. Under Section 26 of RA 9165, any attempt or conspiracy of any of the following acts shall be punished already by penalty prescribed by law:

1. 2. 3. 4. 5.

•

•

If any of these acts mentioned is committed by the offender, a mere attempt; or conspiracy will already give rise to the crime as an exception to the rule that in case of violation of penal law, there are no stages in the commission of the crime and conspiracy will not lie. So if any of the crime committed is any of these five acts, mere attempt will lie against the offender, conspiracy will lie against the offender.

As held in the case of People v Rolando Laylo, the charge was only attempted illegal sale of dangerous drugs. The sale was aborted because even before the said drug poseur was able to transfer the dangerous drug to the police officer, the police officers already introduced themselves as such and arrested him. As such, we only have attempted illegal sale of dangerous drugs.


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TITLE SIX CRIMES AGAINST PUBLIC MORALS (Articles 200 – 202)

ARTICLE200 – GRAVE SCANDAL Grave Scandal – a highly scandalous act offensive to good morals, good customs and decency committed in a public place or within public knowledge or public view. ELEMENTS: 1. The offender performs an act or acts

Importation of any dangerous drug; Sale, trading, administration, delivery, distribution, transportation of dangerous drug; Maintenance of a den, dive, or resort where any dangerous drug is used in any form; Manufacture of any dangerous drug; Cultivation or culture of plants which are the sources of dangerous drugs.

SECTON 98 – LIMITED APPLICABILITY OF THE RPC In Book I, under Article 10, the provisions of the • RPC shall apply suppletorily or supplementarily to the provisions of the special penal laws UNLESS the special penal law provides otherwise. One of the exceptions is provided for in Sec 98 of • RA 9165, it is provided that the provisions of RPC, as amended, shall not apply to the provisions of RA 9165. The law uses the word shall; therefore

you cannot apply the provision of RPC to the provisions of RA 9165. Exception to Section 98: If the offender is a minor offender. Where the offender is a minor, the penalty • for acts punishable by life imprisonment to death provided shall be reclusion perpetua to death.

2. Such act or acts be HIGHLY SCANDALOUS as offending against decency or good customs It is necessary that the act must be • highly scandalous and offensive to morals, offensive to decency and offensive to good customs. 3. That the highly scandalous conduct is not expressly falling within any other article of this Code. The third element requires that it must • not expressly fall within any other article of this code. It must not constitute any other violation in the RPC. Grave scandal is a crime of last resort because you only file a complaint for grave scandal when the said act is not punishable under any other article in the RPC. 4. The act or act complained of be committed in a public place or within the public knowledge or view. Then the fourth element provides that • the highly scandalous act must be committed either in a public place or within public knowledge or view. If the highly scandalous act is committed in a public place, the crime of grave scandal will immediately arise. The place being public, the law presumes that someone may have witnessed the commission of the highly scandalous act. However, if the crime is committed or if the highly scandalous act is committed in a private place, for the crime of grave scandal to arise, it is necessary that it must be witnessed by one or more persons to be said that it is within the public knowledge or public view.

ILLUSTRATION: Q: So let us say that A and B are boyfriend and girlfriend and it is their anniversary. They went to Luneta Park and at

CRIMINAL LAW 2 exactly 12 midnight, in the middle of Luneta Park, they engaged in sexual intercourse. No one witnessed their sexual intercourse. Are they liable for grave scandal? A: YES. They are liable for grave scandal. They have the right to engage in sexual conduct but the fact that they performed the sexual conduct in Luneta Park, a public place makes the act offensive to public morals, decency and good customs and the said act does not constitute any other violation in the RPC because they have the right to engage in sexual intercourse. Therefore, the crime committed is grave scandal because they performed the act in a public place even if no one saw the commission of the said act still, still because it is performed in a public place , it is presumed that someone may have seen the commission of the highly scandalous act.

Q: So what if a wife and a husband, celebrating their anniversary, engaged in sexual intercourse in their terrace. So the act is committed in their premises, in the terrace of their house. However, the gate was open and so passersby would see them performing the sexual intercourse. Are they liable for grave scandal? A: YES. They are liable for grave scandal. The said act does not constitute another offense in the RPC because they have the right to engage in sexual conduct. The sexual conduct was performed in the privacy of their home however; people witnessed the commission of the said act. It now becomes a highly scandalous act because it is within the knowledge of the public or within public view.

Q: What if A and B are boyfriend and girlfriend. The girlfriend is 11 yrs old and the boyfriend is 21 yrs old. And because it is their monthsary the girlfriend thought of giving herself as a gift and engaged in sexual intercourse in a public place Are they liable for grave scandal? A: NO. They are not liable for grave scandal. The man is liable for statutory rape. A man who had sexual intercourse with a child under 12 years of age, regardless of the consent, regardless of the willingness of the said child, the man is liable for statutory rape. Because in so far as criminal law is concerned, a child under 12 yrs old has no intelligence of his/her own and is not capable of giving a valid consent. Therefore, even if the girl voluntarily gave herself in so far as the law is concerned, it is still statutory rape. It is not grave scandal because the third element is wanting. The said act fall under the violation of article of RPC that is under article 266-A for rape. As I said, grave scandal is a crime of last resort. You only charge it when the crime committed does not constitute any other violation in the RPC.

ARTICLE201 – IMMORAL DOCTRINES, OBSCENE PUBLICATIONS AND EXHIBITIONS, AND INDECENT SHOWS Punishes: I. Public proclamations of doctrines openly contrary to public morals II. Publication of obscene literature. In case of publication of obscene literature, it is the author,


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III. IV.

the editor, the owner or proprietor of the establishment that sells the said materials SHALL BE HELD CRIMINALLY LIABLE. The third act punished is the exhibition of indecent shows, plays, scenes or acts in fairs, theaters, cinemas or any other places. Selling, giving away or exhibiting films,, engravings, sculptures or literature which are offensive to public morals.

ILLUSTRATION: Q: So what if there is this building, when the person entered the said building, on the floor of the said building were these magazines. And the magazines contain men and women engaging in sexual intercourse, naked women and men, and other obscene materials. Who shall be held liable when the place was raided by the police? A: The author of the said literature, the editors publishing such literature and the owner or proprietor of the establishment where the said magazines were being sold. They will be held criminally liable under Article 201.

VAGRANTS AND PROSTITUTES (ART 202) Q: Let us say that there is this man, a healthy man and he can look for work but he does not want to work. So he was just roaming around and he saw houses of prostitutes or houses of ill-fames and he is always in this places. Can he be held liable for vagrancy? A:NO, because vagrancy has been decriminalized by R.A. No. 10158 which was approved on March 27, 2012. We no longer have the crime of vagrancy. No person can longer be prosecuted for being a vagrant. •

•

How about prostitution? Is there still a crime for prostitution? YES. •

Who is a prostitute? A prostitute is any woman who, for money or • profit, indulges in sexual intercourse or lascivious conduct. So it is the work or job of a woman. Note that the law defines it to be a woman therefore; a man cannot be considered a prostitute. Before, if a man engages in sexual intercourse or lascivious conduct he can be punished under Article 202 but now since vagrancy has been decriminalized by R.A. No. 10158, he can no longer be prosecuted. Only prostitutes who are woman.

TITLE SEVEN CRIMES COMMITTED BY PUBLIC OFFICERS (Articles 203 – 245)

ARTICLE203 – PUBLIC OFFICERS REQUISITES TO BE A PUBLIC OFFICER: 1. One must be taking part in the performance of public functions in the Government or one must be performing in said Government or in any of its branches public duties as an

CRIMINAL LAW 2 employee, agent or subordinate official, of any rank or class; and 2. That his authority to take part in the performance of public functions or to perform public duties must be – a. by direct provision of the law; or b. by popular election; or c. by appointment by competent authority

Whenever a person applies to a public office, he has the so-called, OATH OF OFFICE. If he is high-ranking official, the oath is also before a high-ranking official. If he is a cabinet secretary, the oath is before the President or to the Supreme Court Chief Justice. If he is only an ordinary employee, still he has oath of office. It is a document which is entitled, “OATH OF OFFICE”, he merely signs it.

Felonies under TITLE SEVEN are felonies in violation of this oath of office, they can either be: MISFEASANCE A public officer performs an official acts in a manner not in accordance with what the law provides

(GN: Improper performance of some act which might be lawfully done) •

ARTICLE 204 TO 207

NONFEASANCE

MALFEASANCE

A public officer knowingly, willfully refuses or refrains from doing an act which is his official duty to do.

(GN: Omission of some act which ought to be performed)

A public officer performs in his public office an act prohibited by law. (GN: Performance of some act which ought not to be done •

ARTICLE 210-211

•

ARTICLE 208

ARTICLE204 – KNOWINGLY RENDERING UNJUST JUDGMENT ELEMENTS: 1. The offender is a judge 2. That he renders a judgment in a case submitted to him for decision 3. That the judgment is unjust 4. The judge knows that his judgment is unjust

UNJUST JUDGMENT – is one which is contrary to law, or one that is not supported by evidence or both. The source of unjust judgment can either be mere • error or ill-will. If the source of an unjust judgment is mere error on the part of the judge, then the said judge is not civilly, criminally, and administratively liable.

ILLUSTRATION: In a case submitted to him for decision, the judge wrongfully interpreted a provision of law. It is a new law, there is no jurisprudence yet, the judge wrongfully


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interpreted it. The judge cannot be held civilly, administratively, and more so, criminally liable. The said judgment is an unjust judgment because it was based on this error in the interpretation of the law. However, there was no intent on the part of the said judge. Considering the basis of the unjust judgment is mere error. The said judge acted in good faith. If however, the unjust judgment is based on bad faith, that is, it is based on ill-motive on the part of the said judge, therefore, he can be held liable criminally, civilly and administratively

- For him to be criminally liable, knowing that he rendered an unjust judgment, it is necessary that the unjust judgment is rendered out of ill-motive or bad faith, out of greed, revenge, envy, or any other ill-motive. Hence he is known to have rendered an unjust judgment.

BASED ON MERE ERROR – no criminal, no civil, no administrative liability ARTICLE205 – JUDGMENT RENDERED THROUGH NEGLIGENCE This is again committed by a judge, who in a case submitted to him for decision, renders manifestly unjust judgment. ELEMENTS: 1. The offender is a judge 2. That he renders a judgment in a case submitted to him for decision 3. That the judgment is manifestly unjust 4. The it is due to his inexcusable negligence or ignorance

MANIFESTLY UNJUST JUDGMENT – means that it is evident that a judgment is unjust. A first year law student would know that it is unjust, therefore it is manifestly unjust judgment, because he acted in inexcusable negligence or ignorance.

ARTICLE206 – UNJUST INTERLOCUTORY ORDER ELEMENTS: 1. The offender is a judge 2. That he performs any of the following acts: a. knowingly renders unjust interlocutory order or decree b. renders a manifestly unjust interlocutory order or decree through inexcusable negligence or ignorance

A R T I C L E 2 0 7 – M A L I C I O U S D E L AY I N T H E ADMINISTRATION OF JUSTICE ELEMENTS: 1. The offender is a judge 2. There is a proceeding in his court 3. He delays the administration of justice

CRIMINAL LAW 2 4. The delay is malicious, that is, delay is caused by the judge with deliberate intent to inflict damage on either party in the case.

ARTICLE208 – PROSECUTION OF OFFENSES; NEGLIGENCE AND TOLERANCE ACTS PUNISHABLE: • I. By maliciously refraining from instituting prosecution against violators of the law Note that the first crime, he knows that a crime was committed but he does not prosecute the offender; II. By maliciously tolerating the commission of offenses the second act, a crime was about to be committed, he tolerates its commission. It must be done with MALICE. Absent malice, Article 208 will not apply.

• •

• •

ELEMENTS OF DERELICTION OF DUTY IN THE PROSECUTION OF OFFENSES: 1. That the offender is a public officer or officer of the law who has a duty to cause the prosecution of, or to prosecute, offenses. 2. That there is a dereliction of the duties of his office; that is knowing the commission of the crime, he does not cause the prosecution of the criminal or knowing that a crime is about to be committed, he tolerates its commission. 3. That the offender acts with malice and deliberate intent to favor the violator of the law.

THOSE WHO CAN CAUSE THE PROSECUTION OF THE OFFENDERS: - Judges - Barangay Chairman - Persons in authority

ARTICLE209 – BETRAYAL OF TRUST BY AN ATTORNEY OR SOLICITOR – REVELATION OF SECRETS ACTS PUNISHED AS BETRAYAL OF TRUST BY • ATTORNEY: I. By causing damage to his client, either a. by any malicious breach of professional duty b. by inexcusable negligence or ignorance THERE MUST BE DAMAGE TO HIS • CLIENT II. By revealing any of the secrets of his client learned by him in his professional capacity. DAMAGE IS NOT NECESSARY • III.

Otherwise known as DERELICTION. Can only be committed by a public officer or a officer of the law who has the duty to cause the prosecution of or to prosecute the offenders. The said public officer commits dereliction of duty in the prosecution of offenses under any of the following circumstances: a. knowing the commission of the crime, he does not cause the prosecution of the criminal, or b. knowing that a crime is about to be committed, he tolerates its commission and the said offender acts with malice and deliberate intent to favor the violator of the law The dereliction of duty in the prosecution of offenses cannot be committed by just any public officer. The public officer must be charged with the prosecution of the cases or he is the one who can cause the prosecution of these offenders.

CHARGED WITH THE PROSECUTION OF THE OFFENDERS: - Fiscals - Prosecutors - State Prosecutors


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•

By undertaking the defense of the opposing party in the same case, without the consent of his first client, after having undertaken the defense of said first client or after having received confidential information from said client. IF THE CLIENT CONSENTS TO • THE ATTORNEY’S TAKING THE DEFENSE OF THE OTHER PARTY, THERE IS NO CRIME

ELEMENTS: 1. Causing damage to his client, either: a. by any malicious breach of professional duty b. by inexcusable negligence or ignorance 2. Revealing any of the secrets of his client learned by him in his professional capacity 3. Undertaking the defense of the opposing party in the same case, without the consent of his first client or after having received confidential information from said client Under Article 209, this betrayal of trust is IN ADDITION TO A PROPER ADMINISTRATIVE CASE which may be filed against an attorney or solicitor. So aside from the criminal case in violation of Article 209, he can also be charged in a case also for disbarment, for violation of lawyer’s oath of duty may be filed against him, and these two cases can be proceeded at the same time.

ILLUSTRATION: A lawyer for 3 consecutive times, without any justifiable reason, failed to file his formal offer of exhibits. During the first time he was given 15 days, he failed to file,

CRIMINAL LAW 2 second time he was given 15 days, he failed to file. On the third time, he was given 5 days still, he failed to file, without giving any justifiable reason for his non-compliance with the order of the court. By reason thereof, there is no evidence in behalf of the defense of his client was admitted by the Court. Because only evidences offered may be admitted by the court. And so, the judge convicted the accused, the client was prejudiced because of the counsel’s malicious breach of his professional duty. It is incumbent upon any counsel to file a pleading within the reglementary period provided by law or required by the court. - For failing to do so without any justifiable reason, he caused damage to his client by malicious breach of his professional duty.

Q: What if Atty. A was the counsel of X, he was behind bars for the crime of kidnapping for ransom. Atty. A visited X to ask the facts of the case in order for him to study and to nput up a good defense. During their conversation, X informed his counsel, Atty. A that there will be another kidnapping tomorrow night at 9PM in Quezon City, to be done by his other gang mates who were at large. Atty. A, upon knowing this information from his client X, immediately went to the police officers of Quezon City in order to pre-empt the commission of the crime. Is Atty. A liable for the second act because he divulged the secrets of his client which he learned in his professional capacity? A: Atty. A is not liable under Article 209. The secrets being referred to under Article 209 refers to the past crimes of the said client and it refers to the facts and circumstances related to the crime which is being handed by the said Attorney or counsel.

It does not refer to future crimes that are still about to be committed. When a lawyer takes his oath of office, he says, or he promise, he swears that he shall be liable not only to the client, but also to the STATE, to the GOVERNMENT.

It is his duty to the Government, to the State of any future crime that is about to be committed more than his duty to his client. Hence, in this case, since it refers to a future crime, for the protection of the state and the citizenry, it is incumbent upon him to divulge, disclose or to reveal the said secrets.

ARTICLE210 – DIRECT BRIBERY ACTS PUNISHABLE: • I. By agreeing to perform, or by performing, in consideration of any offer, promise, gift or present – an act constituting a crime, in connection with the performance of his official duties. ELEMENTS: 1. The offender be a public officer within the scope of Article 203 2. The offender accepts an offer or a promise or receives a gift or present by himself or through another. 3. That such offer or promise be accepted, or received by the public officer with a view of committing some crime. 4. That the act which the offender agrees to perform or which he executes be connected with the performance of his official duties. II.

Q: What if A filed a case against B, Atty. X was the counsel of A, A failed to give Atty. X his appearance list for 5 consecutive hearings, no appearance list. So Atty. X, filed a motion to withdraw as counsel of A. The said motion to withdraw was with the CONSENT OF A, because without the consent of A, the said motion to withdraw will not be granted by the court. So the court granted and Atty. X is no longer the counsel of A. When B learned about this, went immediately to the office of X and secured the services of


X. Atty. X signed a contract and he is now the counsel of B. Is Atty. X liable for betrayal of trust by an attorney? A: Atty. X is liable for betrayal of trust by an attorney. He takes the case of B, the opposing party, even after he has already taken the case of A and after he has acquired valuable information about his client. How can he prevent himself from being convicted of the betrayal of trust? He must first secure the consent of the • said first client - In the said problem, there was no consent. The said consent was only in the motion to withdraw. The said consent in the motion to withdraw is not the consent on the acceptance of the case. For every motion to withdraw, there must be a consent written, otherwise the court will not grant the motion to withdraw. The consent here is to secure or to accept the service s of the other party. - Since consent was not given, he is liable for betrayal of trust by an attorney. Just remember aside from betrayal of • trust, an attorney or solicitor can also be held liable of administrative case. So there may be disbarment. He can be disbarred or he can be • suspended by reason of committing any of these acts.

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By 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.

ELEMENTS: 1. The offender be a public officer within the scope of Article 203 2. The offender accepts an offer or a promise or receives a gift or present by himself or through another.

CRIMINAL LAW 2

3. That such offer or promise be accepted, or received by the public officer in consideration of the execution of an act, which does not constitute a crime, but the act must be unjust 4. That the act which the offender agrees to perform or which he executes be connected with the performance of his official duties. III.

By agreeing to refrain, or by refraining, from doing something which it is his official duty to do, in consideration of gift or promise. ELEMENTS: 1. The offender be a public officer within the scope of Article 203 2. The offender accepts an offer or a promise or receives a gift or present by himself or through another. 3. That such offer or promise be accepted, or received by the public o ff i c e r t o r e f r a i n f r o m d o i n g something which it is his official duty to do so. 4. That the act which the offender agrees to perform or which he executes be connected with the performance of his official duties.

Under the First Act - By agreeing to perform or performing, in consideration of offer or promise, gift or present any act constituting a crime in connection with the performance of his official duties - If the thing which the public officer is required to do, is an act which will constitute a crime, a mere agreement to do so, will already give rise to direct bribery. It is not necessary that he actually commits the crime, it is not necessary that he actually receives the gift or present. A MERE AGREEMENT WILL SUFFICE. •

Likewise in the Third Act - By agreeing to refrain or by refraining from doing an act which is his official duty to do, in consideration of an offer, promise, gift or present. - If the thing that a public officer is required to do, is to refrain from doing an act which is his official duty to do, a mere agreement to refrain to do an act will already give rise to direct bribery. It is not necessary to refrain from doing an act, it is not necessary to receive the said gift.

However, if the thing that a public officer is required to do, does not constitute a crime, under the Second Act, mere agreement will not suffice. There must be actual acceptance of the thing. There must be acceptance of the gift, in consideration of the execution of an act which does not constitute a crime in connection with the performance of his official duty. WHY? - because the thing that he is being required to do


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is not a criminal act. It is his official thing to do, but he doesn’t want to do it without the bribe first to be given to him. So it is only upon ACCEPTANCE OF THE BRIBE that criminal liability for direct bribery will arise.

Whatever may be the act constituting direct bribery, in order to amount to direct bribery, it must always be in connection with the performance of his official duty. If it is not in connection with his official duty, it could other crime like estafa or swindling, but NOT DIRECT BRIBERY.

ACEJAS, III vs. PEOPLE It is the second act of direct bribery that has been violated. The second act because it is the duty of the said BID agent to return the passport. The duty to return the passport is not a criminal act. It is also not an act of refraining to do so. But he does not want to perform the act without the bribe, so he becomes liable under the 2nd act.

ILLUSTRATION: Q: What if a mother wanted her daughter to work in another country. The daughter was still a minor, 16 years old. So what the mother did, was to ask the civil registrar to alter the birth date or the date in the certificate of live birth with a promise that the first 2 months of the salary of the daughter will be given to the civil registrar. The civil registrar altered the date in the birth certificate. What crime/ crimes is/are committed by the civil registrar and by the mother? A: The civil registrar is liable for direct bribery because he agreed to perform an act constituting a crime in consideration of a promise that the 2 months salary will be given to him. The said act is in connection with his performance of his official duty. Therefore he is liable for direct bribery. He actually performs the act, he actually committed a crime, therefore he is also liable for the falsification of a public document because he actually altered the birth date which is a very important date in the birth certificate so he is also liable for the falsification of a public document. Without the said bribe, the mother would not have committed falsification, so are you going to complex them? because direct bribery is a necessary means to commit falsification. Even if in reality, they should be complex • because direct bribery is a necessary means to commit falsification, you cannot complex them because ARTICLE 210 PROHIBITS SUCH COMPLEXITY OF CRIMES.

Under Article 210, it is expressly provided that the penalty for direct bribery shall be IN ADDITION TO THE LIABILITY FOR THE CRIME COMMITTED. Here, he actually altered,

CRIMINAL LAW 2 actually committed the crime, therefore his liability for falsification is in addition for his liability for direct bribery. Therefore, 2 separate distinct charges have to be filed against the civil registrar, we have direct bribery and the other one is falsification of the public document.

The mother is liable for corruption of public official (Art. 212). Direct bribery is the crime of the public officer who receives the bribe. On the other hand, the private individual or the public officer who gives the bribe is liable for corruption of public official under Art. 212. (Refer to Art. 212 – elements)

ELEMENTS: 1. The offender is a public officer entrusted with law enforcement 2. The offender refrains from arresting or prosecuting an offender who has committed a crime punishable by reclusion perpetua and/or death 3. The offender refrains from arresting or prosecuting the offender in consideration of any promise, gift or present. •

The mother gives a promise under circumstances in which the public officer becomes liable for direct bribery. She is liable for corruption of public official. The mother is also liable for falsification of a public document as a principal by inducement. Without the bribe, without the said inducement, the said public officer will not have committed the said falsification.

ARTICLE211 – INDIRECT BRIBERY ELEMENTS: 1. The offender is a public officer 2. That he accepts gifts 3. That the gifts are offered to him by reason of his office.

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Indirect Bribery is committed if the public officer accepts any gift or present by reason of his office that he owns. In case of indirect bribery, the public officer is not deemed required to do a thing. By the MERE ACCEPTANCE, indirect bribery is consummated. NO ACCEPTANCE, NO CRIME IS COMMITTED.

ILLUSTRATION: A is the newly appointed secretary of DENR. On his first day of office, Mr. X visited him, paid a courtesy call. Mr. X is the president of a big logging company. They exchanged some pleasantries, thereafter, when this president of the logging company left, he placed a small box on the table. When he left, the new DENR secretary opened the box and it was a key to a car parked in front of the building. The new DENR secretary used it and drove the car - He is liable for Indirect Bribery. The president of the logging company does not require him to do anything, it was merely given to him because he was newly appointed as the DENR secretary. His acceptance brings about consummated indirect bribery; therefore, indirect bribery has no attempted or frustrated stage because outside acceptance, no crime is committed.

ARTICLE211-A – QUALIFIED BRIBERY


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Qualified bribery is committed by any public officer who is in charge with the enforcement of the law. So, in order to amount to qualified bribery, it is necessary that the offender whom the public officer does not want to prosecute must have committed a crime punishable by reclusion perpetua and/or death.

ILLUSTRATION: Q: A police officer was conducting a patrol. He saw a man behind the tree, looking at the other house adjacent to the tree as if waiting for someone. So the police officer parked his vehicle and observed what this man would do. The moment that a man came out of the gate of the house, this man hiding behind the tree, immediately went directly to him and shot him 5 times, and killing him instantly. Then, the said man rode a motorcycle and left. The police officer chased him. The Police officer arrested him, however, he gave the police officer P500,000 and told the police officer, “Mr. Police officer, you saw nothing, you heard nothing.” And the police officer allowed him to leave. What crime/ crimes is/are committed by the said police officer? A: The said police officer is liable for qualified bribery. The crime committed by the said man is murder, because obviously, in his act of killing, there was treachery, the other party was defenseless and obviously the said man deliberately and consciously adopted the ways means and methods employed by him in killing the victim. Since there was treachery, the crime committed is murder, punishable by reclusion perpetua to death. His failure to arrest and prosecute this man constitute qualified bribery because he did so after accepting P500,000.

Q: What if a police officer was conducting a patrol, he saw A and B fighting, boxing each other, killing each other, until they already on the ground. In the course thereof, A pulls out his balisong and stabbed B several times on the heart, a vital organ. B died instantly. Thereafter, A ran away, the police officer tried to catch up with A and he was able to arrest A. However A, gave the police officer P100,000. The police officer allowed him to leave. What crime/crimes is/ are committed by the said police officer? A: The crime committed by A in killing B is precedent by a fight, therefore it is merely homicide. Homicide is punishable only by reclusion temporal. Since it is only punishable by

CRIMINAL LAW 2 reclusion temporal, therefore, qualified bribery is not applicable.

He committed direct bribery, because he accepts a bribe, in consideration of an act of refraining to arrest the said criminal. He actually refrain from arresting and prosecuting the criminal, therefore in addition to direct bribery, he also committed dereliction of duty in the prosecution of offenses because he actually committed dereliction of duty by refraining from arresting the person who has actually committed a crime. So this time, there are 2 crimes committed: DIRECT BRIBERY (ARTICLE 210) AND • DERELICTION OF DUTY IN THE • PROSECUTION OF OFFENSES (ARTICLE 208)

ARTICLE 212 – CORRUPTION OF PUBLIC OFFICIALS ELEMENTS: 1. The offender makes offers or promises or gives or presents to a public officer. 2. That the offers or promises are made or the gifts or the gifts or presents given to a public officer, under circumstances that will make the public officer liable for direct bribery or indirect bribery.

THE ANTI-GRAFT AND CORRUPT PRACTICES ACT (RA 3019) PUBLIC OFFICER - a public officer is any 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. (Sec 2, RA 3019)

JAVIER v SANDIGANBAYAN Although Javier has been appointed as a representative of the private sector, in the book publishing board attached to the office of the president (NBDB), she is still considered as a public officer; first, the said board functions as a collegial body performing public functions; second, according to SC, she was receiving allowance, a salary even though nominal, from the government. Hence, she considered as a public officer.

SECTION 3 – CORRUPT PRACTICES OF PUBLIC OFFICERS IMPORTANT PROVISIONS OF SECTION 3: • (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


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functions through manifest partiality, evident bad faith or gross inexcusable negligence. ELEMENTS: 1. The said offender was in charge of his official, administrative or judicial function 2. That he acted with manifest partiality, evident bad faith or gross inexcusable negligence 3. The said accused caused any undue injury to any party, including the government, or gave any private party unwarranted benefits, advantage, or preference in the discharge of his official functions.

SANTOS v PEOPLE The Supreme Court said that there are two acts • punished under Section 3 (e) of RA 3019: 1. Causing any undue injury; or 2. Giving any private party any unwarranted benefit, advantage or preference •The law uses the conjunctive “or”; therefore, the fact that the offender causes any undue injury to any party or the fact that the offender gave any party unwarranted benefit, advantage or preference, they can be charged distinctly or separately from each other. The Supreme Court also stated that the • elements of Sec 3 (e) of RA 3019 UNDUE INJURY – means there must be an actual damage caused to the offended party. Absent any actual damage caused to the offended party, then section 3 (e) is not violated.

(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 The public officer entered into any contract or • transaction on behalf of the government. The said contract is manifestly and grossly disadvantageous to the government.

In NAVA v PALLATTAO, the violation was Section 3 (g). The DECS officials bought laboratory science materials and after COA audited, it was discovered that there was an overpricing. The same is true in CAUNAN v PEOPLE where Joey Marquez and company bought walis-tingting, and according to the COA auditors, there was also overpricing of these walis-tingting. But in the case of Nava, there was conviction but in the case of Caunan, there was an acquittal. Where lies the difference? • In the case of Nava, the COA officials proved • the overpricing because they bought the very same laboratory materials from the same supplier where the DECS officials bought and

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by reason thereof, it was discovered that there was indeed an overpricing. However, in the case of Caunan, Joey Marquez bought from a different supplier than where the COA officials bought. The COA officials bought from a Las Pinas supplier which they compared with the price of walistingting bought by Joey Marquez. Not only did they buy the said walis-tingting from a different supplier, the walis-tingting bought by COA officials was of different specifications from that of the walis-tingting bought by Joey Marquez and company. Hence, the Supreme Court said that prosecution was not able to prove beyond reasonable doubt that there was overpricing. Because the walis-tingting bought by Joey Marquez was very much different from the walis-tingting bought by the COA officials. They were not able to prove beyond reasonable doubt that there was overpricing because of the difference in specifications.

In both cases, there was NO PUBLIC BIDDING.

Will the mere lack of public bidding bring about a violation of Section 3 (g) of RA 3019? The Supreme Court said that mere lack of • public bidding may mean that the government was not able to get the best price for the thing purchased. However, it does not bring about a violation of Section 3 (g) because what Section 3 (g) requires is the transaction must be manifestly and grossly disadvantageous to the government and mere lack of public bidding will not show such gross and manifest disadvantage.

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.

Persons liable: 1. Public officer who persuades, induces, or influences another public officer; 2. Public officer who is persuaded induced or influenced Note: requesting or receiving any gift, present, or benefit is not required in this provision.

(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 part, wherein the public officer in his official capacity has to intervene under the law.

Note: the lack of demand is immaterial, the law uses the • word OR between requesting and receiving. There must be clear intention on the part of the public • officer and consider it as his or her own property from then on. Mere physical receipt unaccompanied by any other sign, circumstance or act to show acceptance is not sufficient to lead the court to conclude that the crime has been committed Refers to a public officer whose official intervention is • required by law in a contract or transaction

(c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the help given or to be given, without prejudice to Section thirteen of this Act. (d) Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination.

SECTION 4 – PROHIBITION ON PRIVATE INDIVIDUALS Under Section 4, it is unlawful for any private • individual who has a close personal relation to any public officer to request, ask or receive present from any person in any case from which the said public officer has to control. Close personal relation does not only • include family members. It also includes those who have social and fraternal relations; therefore even a private individual who is not in conspiracy of a public officer can be held liable under RA 3019. Not only public officers but also private • individuals can be held liable under RA 3019.

(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.

Enumerated corrupt practices of Public Officials (a) Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and

(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to


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(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 indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party.

CRIMINAL LAW 2 the same, whether or not the public officer profited or will profit thereby. (h) Director or indirectly having financing 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 a material interest in any transaction or act requiring the approval of a board, panel or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in the action of the board, committee, panel or group. Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly unlawful, inequitable, or irregular transaction or acts by the board, panel or group to which they belong. (j) Knowingly approving or granting any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege or advantage, or of a mere representative or dummy of one who is not so qualified or entitled. (k) Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date. Note: if damage was caused, Article 229 under the RPC is committed.

SECTION 9 – PENALTIES FOR VIOLATIONS Under Section 9, both private individuals and • public officers have just the same penalty. It is six years and one month to fifteen years plus forfeiture of the ill-gotten wealth.

S E C T I O N 7 – S TAT E M E N T O F A S S E T S A N D LIABILITIES & RA 6713 When do the officers file the statement of • assets, liabilities and net worth? The said public officer can file his SALN • within 30 days from assumption into office. And then it must be filed on or before the 30th day of April of the next years and within 30 days after separation from the service. In RA 3019, it is stated “on or before 15th of • April” but there is another law which provides also for the filing of SALN and that is RA6713 which is the code of ethical standards for public officers. Under RA 6713, and this is what is being • followed, it must be on or before the 30th day of April. So you file first within 30 days upon • assumption to office and then the years thereafter on or before the 30th day of April and then if you got separated from office, within 30 days from separation from office.


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SECTION 8 – PRIMA FACIE EVIDENCE OF AND DISMISSAL DUE TO UNEXPLAINED WEALTH When is there a prima facie presumption of • graft and corrupt practices? There arises a prima facie presumption of • graft and corrupt practices if a public officer has been found to have in his possession money or property, whether in his name or in that name of another person, which is manifestly out of proportion from his lawful income. There arises a prima facie presumption of graft and corrupt practices.

SECTION 10 – COMPETENT COURT & RA 8429 Where do you file a case for violation of RA • 3019? You file a case of violation of Article 3019 • before the Sandiganbayan. The Sandiganbayan has jurisdiction unless otherwise provided by law. There is a law, RA 8429 which provides for • the jurisdiction of Sandiganbayan. Under this law, if a public officer is of salary grade 27 and above, it must be before the Sandiganbayan. If the public officer is below salary grade 27, it must be before the RPC.

SECTION 11 – PRESCRIPTION OF OFFENSES When is the prescriptive period? • Violation for RA 3019 shall prescribe • after 15 years. However, the right of the government to forfeit or to recover ill-gotten wealth does not prescribe. So there are no latches and estoppel insofar as the right of the government to recover ill-gotten wealth is concerned.

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When do you start counting the running of the prescriptive period of crime? From the time the crime has been committed or if it is not known, that is from the time of the discovery of the said crime, then it is from the time of the institution of the criminal perseverance.

SECTION 13 – SUSPENSION AND LOSS OF BENEFITS Q: What if a public officer, has been charged for violation of RA 3019, the Ombudsman found probable cause. The case was now filed before the Sandiganbayan. Is it incumbent upon the Sandiganbayan to immediately place him under preventive suspension? Is preventive suspension automatic? Is preventive suspension mandatory? A: Preventive suspension is mandatory but it is not automatic. There must first be a presuspension period to determine the validity of the information. The moment the Sandiganbayan discovers the said information is valid, sufficient in

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substance to bring about a conviction, it is now mandatory upon the Sandiganbayan to place the said accused public officer under preventive suspension. So it is not automatic because there must first be a pre-suspension period. The only issue in the pre-suspension period is the information filed by the Ombudsman against the said public officer valid, is it sufficient enough to bring about a conviction in court? If the answer is yes, immediately, mandatory on the part of the Sandiganbayan, a ministerial duty, the said public officer must be placed under preventive suspension. It it ministerial not discretionary, not either or. For how long should the suspension be? •The suspension must not exceed the maximum of ninety days, in consonance with Section 52 of the Administrative Code.

SECTION 14 - EXCEPTION Q: What if a public officer saw an old man waiting line. So the old man received a notice, the notice said that his license is ready, it has already been approved. So he was waiting in line for the release of his license, it was already approved. The head of office saw the old man. 85 years old, under the heat of the sun and with his frail body. So the head of office took the man and the head of office asked the man to his office. The head of office asked the secretary, “Is the license of this man approved?” The secretary said yes. The head of office said, “get it.” The secretary took it and gave to the head of office. The head of office, upon seeing that it is approved, and the man was only waiting for its release, gave it to the man; therefore the man need not wait in the long line. The man was so thankful that the following day, the man went back to the office with two big bilaos of bibingka to the said head of office to say thank you. The said head of office received two big bilaos of bibingka. Is the said head of office liable under RA 3019? A: No. It falls under the exception. Under Section 14, unsolicited gifts or presents of small or insignificant value offered or given as a mere ordinary token of friendship or gratitude, according to local customs or usage is excepted from the provisions of RA 3019; therefore the said public officer will not be held criminally liable.

RA 7080: ANTI-PLUNDER ACT Ill-gotten wealth means any asset, property, business enterprise or material possession of any person within the purview of Section two (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/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned;  

3. By the illegal or fraudulent conveyance or disposition of assets belonging to the National government or any of its subdivisions, agencies or instrumentalities or governmentowned or controlled corporations and their subsidiaries;  

4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including 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 himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines

Sec. 2. Definition of the Crime of Plunder, Penalties. 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 ill-gotten 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 Seventy-five million pesos (P75,000,000.00), shall be guilty of the crime of plunder and shall be punished by life imprisonment with perpetual absolute disqualification from holding any public office. Any person who participated with the said public officer in the commission of plunder shall likewise be punished. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances shall be considered by the court.

Sec. 4. Rule of Evidence. For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.

Sec. 6. Prescription of Crime. The crime punishable under this Act shall prescribe in twenty (20) years. However, the right of the State to recover properties unlawfully acquired by public officers from them or from their nominees or transferees shall not be barred by prescription, laches, or estoppel.

RA 9745 Anti-Torture Act:

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CRIMINAL LAW 2 Torture refers to: 1. 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/ her or a third person information or a confession; 2. punishing him/her for an act he/she or a third person has committed or is suspected of having committed; 3. or intimidating or coercing him/her or a third person; 4. 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 the consent or acquiescence of a person in authority or agent of a person in authority.

(i) The administration or drugs to induce confession and/or reduce mental competency; or (ii) The use of drugs to induce extreme pain or certain symptoms of a disease; and (14) Other analogous acts of physical torture; and (b) "Mental/Psychological Torture" refers to acts committed by a person in authority or agent of a person in authority which are calculated to affect or confuse the mind and/or undermine a person's dignity and morale, such as: (1) Blindfolding; (2) Threatening a person(s) or his/fher relative(s) with bodily harm, execution or other wrongful acts;

(3) Confinement in solitary cells or secret detention places;

It does not include pain or Buffering arising only from, inherent in or incidental to lawful sanctions.

(4) Prolonged interrogation; (5) Preparing a prisoner for a "show trial", public display or public humiliation of a detainee or prisoner;

Acts of torture: (a) Physical torture is a form of treatment or punishment inflicted by a person in authority or agent of a person in authority upon another in his/her custody that causes severe pain, exhaustion, disability or dysfunction of one or more parts of the body, such as:

(6) Causing unscheduled transfer of a person deprived of liberty from one place to another, creating the belief that he/she shall be summarily executed;

(1) Systematic beating, headbanging, punching, kicking, striking with truncheon or rifle butt or other similar objects, and jumping on the stomach;

(7) Maltreating a member/s of a person's family; (8) Causing the torture sessions to be witnessed by the person's family, relatives or any third party;

(2) Food deprivation or forcible feeding with spoiled food, animal or human excreta and other stuff or substances not normally eaten;

(9) Denial of sleep/rest; (10) Shame infliction such as stripping the person naked, parading him/her in public places, shaving the victim's head or putting marks on his/her body against his/her will;

(3) Electric shock; (4) Cigarette burning; burning by electrically heated rods, hot oil, acid; by the rubbing of pepper or other chemical substances on mucous membranes, or acids or spices directly on the wound(s); (5) The submersion of the head in water or water polluted with excrement, urine, vomit and/or blood until the brink of suffocation; (6) Being tied or forced to assume fixed and stressful bodily position; (7) Rape and sexual abuse, including the insertion of foreign objects into the sex organ or rectum, or electrical torture of the genitals; (8) Mutilation or amputation of the essential parts of the body such as the genitalia, ear, tongue, etc.; (9) Dental torture or the forced extraction of the teeth; (10) Pulling out of fingernails; (11) Harmful exposure to the elements such as sunlight and extreme cold; (12) The use of plastic bag and other materials placed over the head to the point of asphyxiation; (13) The use of psychoactive drugs to change the perception, memory. alertness or will of a person, such as:


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(11) Deliberately prohibiting the victim to communicate with any member of his/her family; and (12) Other analogous acts of mental/psychological torture. Any confession, admission or statement obtained as a result of torture shall be inadmissible in evidence in any proceedings, except if the same is used as evidence against a person or persons accused of committing torture.

Rights of Tortured Victims: (a) To have a prompt and an impartial investigation by the CHR and by agencies of government concerned such as the Department of Justice (DOJ), the Public Attorney's Office (PAO), the PNP, the National Bureau of Investigation (NBI) and the AFP. A prompt investigation shall mean a maximum period of sixty (60) working days from the time a complaint for torture is filed within which an investigation report and/or resolution shall be completed and made available. An appeal whenever available shall be resolved within the same period prescribed herein, (b) To have sufficient government protection against all forms of harassment; threat and/or intimidation as a consequence of the filing of said complaint or the presentation of evidence therefor. In which case, the State through its appropriate agencies shall afford security in

CRIMINAL LAW 2 order to ensure his/her safety and all other persons involved in the investigation and prosecution such as, but not limited to, his/her lawyer, witnesses and relatives; and (c) To be accorded sufficient protection in the manner by which he/she testifies and presents evidence in any fora in order to avoid further trauma.

(4) Torture with other forms of sexual abuse and, in consequence of torture, the victim shall have become insane, imbecile, impotent, blind or maimed for life; and (5) Torture committed against children.

Note: •

Who are Criminally Liable. - Any person who actually participated Or induced another in the commission of torture or other cruel, inhuman and degrading treatment or punishment or who cooperated in the execution of the act of torture or other cruel, inhuman and degrading treatment or punishment by previous or simultaneous acts shall be liable as principal

Any superior military, police or law enforcement officer or senior government official who issued an order to any lower ranking personnel to commit torture for whatever purpose shall be held equally liable as principals. The immediate commanding officer of the unit concerned of the AFP or the immediate senior public official of the PNP and other law enforcement agencies shall be held liable as a principal to the crime of torture or other cruel or inhuman and degrading treatment or punishment for any act or omission, or negligence committed by him/her that shall have led, assisted, abetted or allowed, whether directly or indirectly, the commission thereof by his/her subordinates. If he/she has knowledge of or, owing to the circumstances at the time, should have known that acts of torture or other cruel, inhuman and degrading treatment or punishment shall be committed, is being committed, or has been committed by his/her subordinates or by others within his/ her area of responsibility and, despite such knowledge, did not take preventive or corrective action either before, during or immediately after its commission, when he/she has the authority to prevent or investigate allegations of torture or other cruel, inhuman and degrading treatment or punishment but failed to prevent or investigate allegations of such act, whether deliberately or due to negligence shall also be liable as principals. Any public officer or employee shall be liable as an accessory if he/she has knowledge that torture or other cruel, inhuman and degrading treatment or punishment is being committed and without having participated therein, either as principal or accomplice, takes part subsequent to its commission in any of the following manner: (a) By themselves profiting from or assisting the offender to profit from the effects of the act of torture or other cruel, inhuman and degrading treatment or punishment; (b) By concealing the act of torture or other cruel, inhuman and degrading treatment or punishment and/or destroying the effects or instruments thereof in order to prevent its discovery; or(c) By harboring, concealing or assisting m the escape of the principal/s in the act of torture or other cruel, inhuman and degrading treatment or punishment: Provided, That the accessory acts are done with the abuse of the official's public functions.

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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 16)

Refouler- No person shall be expelled, returned or extradited to another State where there are substantial grounds to believe that such person shall be in danger of being subjected to torture. CHAPTER THREE – FRAUDS AND ILLEGAL EXACTIONS AND TRANSACTIONS

ARTICLE 213 – FRAUDS AGAINST THE PUBLIC TREASURY AND SIMILAR OFFENSES Article 213 punishes two (2) acts: 1. Fraud against public treasury (par.1) 2. Illegal exactions (par. 2)

ELEMENTS OF FRAUD AGAINST PUBLIC TREASURY (ART. 213, PAR. 1): 1. That the offender is a public officer 2. that he should have taken advantage of his office, that is he intervened in the transaction of his official capacity 3. That he entered into an agreement with any interested party or speculator or made use of any other scheme with regard to: 1. furnishing supplies 2. the making of contracts 3. the adjustment or settlement of accounts relating to public property or funds 4. That the accused had intent to defraud the Government

So here, the public officer took advantage of his official position in entering into contract which involves the furnishing of supplies, or which involves public funds or property and the intention is to DEFRAUD THE GOVERNMENT. It is not necessary that the Government, the treasury be actually be defrauded, it suffices that entering in the said contract, the intention of the said offender, the public officer, is to defraud the Government.

ELEMENTS OF ILLEGAL EXACTION (ART. 213, PAR. 2) 1. That the offender is a public officer entrusted with the collection of taxes, licenses, fees and other imposts. 2. He is guilty of any of the following acts or omissions:

Aggravating Circumstances in torture: (1) Torture resulting in the death of any person; (2) Torture resulting in mutilation; (3) Torture with rape;


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 15)

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CRIMINAL LAW 2 1. 2. 3.

Demanding, directly or indirectly, the payment of sums different from or larger than those authorized by law; or Failing voluntarily to issue a receipt, as provided by law, for any sum of money collected by him officially; or Collecting or receiving, directly or indirectly, by way of payment or otherwise, things or objects of a nature different from that provided by law.

Here, the offender is a COLLECTING PUBLIC OFFICER. A public officer who has been entrusted with duty to collect taxes, licenses, fees or other imposts. Only this kind of public officer can commit this crime because ILLEGAL EXACTION involves violation of rules on collection.

1st Act - Demanding, directly or indirectly, the payment of sums different from or larger than those authorized by law;or ILLUSTRATION: Q: There was this cashier in the city treasurer’s office. Here comes X, X said that he is going to get a cedula (residence certificate) and then X said, “How much am I going to pay?” and then, the cashier or the collecting officer said, “you have to pay Php200” but it is actually Php20. X said, “hmp, angmahalpala, ayokona.” and so he left. Is the said collecting officer liable of any crime? A:YES, he is liable. For merely demanding an amount larger than that authorized by law, he is already liable for ILLEGAL EXACTION under Article 213, Par. 2.

Q: He is already liable, he merely demanded, but what if in the same problem, X said he was going to get a cedula. The collecting officer saw him and he appears to be poor man and so X asked the collecting officer, “How much am I going to pay?” and the collecting officer took pity of X and said, “Only Php 10”. So, the poor man said, “Oh, I have more money, I’ll get two”. Is the collecting officer liable of any crime?

A:YES, he is liable because he demanded an amount different from that authorized by law. Note that what the law requires is the demanding of an amount, directly or indirectly, different from or larger than those authorized by law. Therefore, even if it is lower, so long as it is different from that provided by law, and so long as it is demanded by the said collecting officer, then it is considered as ILLEGAL EXACTION.

It is not necessary for the said collecting officer to have misappropriate the funds, the moment that he misappropriates the funds, in addition to illegal exaction, he may also be held liable for MALVERSATION, because Illegal Exaction is only about the rules on collection. It has nothing to do with the appropriation or misappropriation of funds or property. Only a violation of the rules on collection.

2nd Act - Failing voluntarily to issue a receipt, as provided by law, for any sum of money collected by him officially; ILLUSTRATION:


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Q: So what if it was January 2, all kinds of payment are being made at the start of the year. So the collecting officer in the treasurer’s office rans out of official receipt (O.R.). And so he got a half sheet of typewriting paper and he note there about the said payment and a provisional receipt and he gave it to the same person who made the payment. Is the said collecting officer liable of illegal exaction? A: He IS NOT. Because he did not voluntarily fail to issue the said O.R. He ran out of the said O.R., it was not voluntary on his part. It was an emergency situation. It is good that she even gave a provisional receipt as a proof of payment. In this case, he cannot be held liable for illegal exaction.

3rd Act - Collecting or receiving, directly or indirectly, by way of payment or otherwise, things or objects of a nature different from that provided by law.

Here, under the third act, it does not refer to the amount of payment. It refers to the KIND OR NATURE OF PAYMENT. So, when the law says that it should be paid in cash, ONLY CASH may be received by the said collecting officer.

ILLUSTRATION: So the collecting officer is known as a sabungero. So here comes one of the persons who was making payment. He has no money, but said, he has a magandangtandang. And so, that was the payment received. He commits a violation of illegal exaction.

Q: What if the person who demanded an amount or different from or larger than that which is provided for by law is an officer, a collecting officer from the Bureau of Internal Revenue, or a collecting officer form the Bureau of Customs. Is he liable under Article 213? A: He is not liable for illegal exaction under Art. 213. He is liable under the Tax Code or under the Tariffs and Customs Code. Under Art. 213, it is expressly provided that if the collecting officer is a collecting officer coming from the Bureau of Internal Revenue or Bureau of Customs is not liable under this Article. The reason here is that, this collecting officer from the BIR and the BOC, have the right to ask for penalties, surcharges, and compromise. Therefore, they can always demand and amount different from or that which is larger than that authorized by law. If they exceeded that authority, then they are liable under the Tariffs and Customs Code or under the Tax Code, but NOT UNDER THE RPC.

ARTICLE 214 – OTHER FRAUDS ELEMENTS: 1. Offender is a public officer 2. He takes advantage of his official position 3. He commits any of the frauds or deceits enumerated in Articles 315-318

If any of the public officer commits any of the frauds or deceits constituting ESTAFA or SWINDLING, under Art.

CRIMINAL LAW 2 315-318, and he does so by taking advantage of his official position, his criminal liability is Other Frauds under Art. 214. - Not estafa, Not swindling. the reason is that in case of a public officer, there is additional penalty. If you look at Article 214, the law says that the penalty is the same penalty as the first offense under Art. 315-318. But additional to that, temporary disqualification to perpetual disqualification for having taken advantage of his official position. Therefore, if it is a public officer who commits estafa or swindling, the crime is under Art. 214 and there is an additional penalty.

ARTICLE 215 – PROHIBITED TRANSACTIONS ELEMENTS: 1. Offender is an appointive public officer 2. He becomes interested, directly or indirectly in any transaction of exchange or speculation 3. Transaction takes place within the territory subject to his jurisdiction 4. He becomes interested in the transaction during his incumbency

ARTICLE 216 – POSSESSION OF PROHIBITED INTEREST BY A PUBLIC OFFICER ELEMENTS: 1. Public Officer who, directly or indirectly, became interested in any contract or business in which it was his official duty to intervene. 2. Experts, arbitrators, and private accountants who, in like manner, took part in any contract or transaction connected with the estate or property in the appraisal, distribution or adjudication of which they had acted 3. Guardians and executors with respect to the property belonging to their wards or the estate

CHAPTER FOUR – MALVERSATION OF PUBLIC FUNDS OR PROPERTY ARTICLE 217 – MALVERSATION OF PUBLIC FUNDS OR PROPERTY (PRESUMPTION OF MALVERSATION) ELEMENTS: 1. Offender is a public officer or employee 2. He has the custody or control of funds or property by reason of the duties of his office 3. Those funds or property were public funds or property for which he was accountable 4. He appropriated, took, misappropriated or consented, or through abandonment or negligence, permitted another person to take them •

Who is the offender? The offender is an accountable public officer. An accountable of public officer is an officer in the course of the performance of his duties, receives funds or property from the government which he has the obligation to account later. So he has in his custody, public funds or public property and he has the obligation to account these to the Government.

Punishable acts: 1. Appropriating public funds or property 2. Taking or misappropriating the same 3. Consenting, through abandonment or negligence,


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permitting any other person to take such public funds or property Being otherwise guilty of the misappropriation or malversation of such funds or property

4.

Malversation of Public Funds and Property can be committed either through a positive act, that is, that the said public officer is the one who misappropriates, takes or appropriates the public funds and property, OR, through a passive act, that is, through his abandonment or negligence, he permitted others to misappropriate the same. -

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Malversation can be committed either through a positive act, which is through deliberate intent or through dolo. He is the one who appropriates or misappropriates, who took the the said public funds or property Passive Act which is through his abandonment or negligence, or cupla. he allowed others to appropriate or misappropriate the said public funds or property

When is there prima facie presumption of malversation? Under Article 217, there arises prima facie presumption of malversation of public funds or property when demand is made by a duly authorized officer to an accountable public officer to account for public funds or property, and the same is not forthcoming

ILLUSTRATION: So the COA auditor, appeared and conducted an audit He demanded for the said amount, the said accountable public officer cannot reduce the said amount. There arises the prima facie presumption that he has malverse the said public funds or property. Although that is what is written under Article 217, last paragraph. The Supreme Court in the number of cases said: “Mere shortage in audit will not suffice. For the Prima facie presumption to arise the following requisites must be present: - It is necessary that there must be complete, thorough and reliable audit. - In the said complete, thorough and reliable audit, the following were discovered: %L. The public officer indeed receive the public funds or property. That is, he is an accountable public officer %L. The said public funds and property was missing, or there was a shortage, or he cannot produce it, and %L. The said public officer cannot give a justifiable reason, a legal excuse for the said shortage or missing of public funds or property.”

If all of these are present, the Supreme Court says that there arises the prima facie presumption that there is malversation of public funds or property. Therefore, there may NOT be direct evidence to convict one for malversation of public funds or property. Obviously, there cannot be any witness, because when you say direct evidence, there is a witness. Of course, he would not let anyone see him malversing the funds. It suffices in the audit, these three things were discovered. If these three are

CRIMINAL LAW 2 discovered, then there arises the prima facie presumption that there is a so-called MALVERSATION OF PUBLIC FUNDS OR PROPERTY

ILLUSTRATION: Q: What if a man was walking, in the middle of the night, a police officer who was conducting a patrol saw something bulging on his waist. The police officer stopped him and frisked him and there, they saw a firearm. They ask for the license, the said man could not produce the license for the said firearm. He was arrested for illegal possession of unlicensed firearm, and the firearm was confiscated. During the trials of the case, the fiscal move for subpoena for the custodian of the said firearm. The custodian appeared but failed to bring the firearm. He had already sold the said firearm confiscated. What crime is committed by the said custodian? A: He is liable for Malversation under Article 217.

Q: His contention was, it cannot be malversation, because the firearm was owned by a private person. It is not a public property, therefore I cannot be held liable for malversation. Is the contention correct? A: His contention is wrong. The said firearm has already been confiscated by public authority, therefore it is now deemed, CUSTODIA LEGIS. The moment it is in custodialegis, it loses its character as a private property and it now assumes a character of a public property. Hence the crime committed is Malversation.

Q: What if, there was this collecting officer, a cashier, and there were many persons paying. And the long line persons paying, one cashier said that he needed to answer the call of nature, and so he asked another fellow cashier to look after his drawer, and so, he left and went to the restroom. But he also left the key of his drawing on the key holder. And so, the moment he left, his fellow cashier went to his drawer and opened it and took Php 2000 from the collection of A on the same day. Then A arrived, and he then accepted collections. In the afternoon, there was a surprise audit coming from the COA. and it was discovered that based on the receipts, The php 2000 were missing from the collection of A. Therefore, A was charged. What crime if any, has been committed by A? Is A liable for malversation?

A: Yes, he is liable for malversation through negligence. That is the passive act. That is through his abandonment or negligence, he permitted another person, Cashier B to misappropriate a part of his collection for the day. Hence A is also liable for Malversation. Not B, but A, the one who went to the restroom, because he is the one accountable for the said public funds in his drawer.

Malversation of public funds and property through dolo. So, in the information, it was stated that he is the one who misappropriate, appropriates or has taken the said public funds, and so he was charged with Malversation through dolo, through deliberate intent. That was the case filed against him because they did not know that it was B who took the money. So, the presumption is that, he is the one who took the money, who appropriated it. During the trial of the merits, during the presentation of the defense evidence, when it was already A’s term to testify, it was divulged or disclosed to the court that it was in fact another cashier, B who misappropriated the said funds through the negligence of A. And by reason of this evidence presented in court, the said judge, convicted A of Malversation through culpa, in an information of malversation through dolo. Is the judge correct? can he convict A? A: Yes, the judge is correct. The reason is that, according to the Supreme Court, whether Malversation is committed through deliberate intent or culpa, DOLO and CULPA are merely modalities of committing the crime. Nevertheless, it is still malversation, and if you look at Article 217, whether malversation is committed through deliberate intent or through negligence, they just have one and the same penalties. Further, the Supreme Court said, Malversation through negligence or culpa is NECESSARILY INCLUDED in Malversation through deliberate intent or dolo. Hence, even if the information is Malversation through dolo, one can be convicted of Malversation through Culpa or Negligence.

Q: What if, there was this rape in a warehouse, in the course of the said rape, dangerous drugs worth millions of pesos were confiscated and they were placed in the PDEA warehouse. The persons therein were charged with illegal possession of dangerous drugs. In the course of the hearing in this possession of dangerous drugs, the court sent a subpoena to the PDEA custodian, to bring to the Court the said dangerous drugs which were confiscated. And so, on the designated day, the said PDEA agent boarded all the dangerous drugs confiscated in a PDEA van and off he went to the Court. However, before the PDEA agent could reach the court, here comes two motorcycles who went in and fired at him, and he fell on his seat, lifeless. And then, a big vehicle arrived at the back of the said PDEA van and took all the said dangerous drugs. Now the said PDEA agent was brought into the hospital and despite the fatal wound, because of the immediate medical intervention, he survived. Is he liable of any crime?

That other person, B, who took the said property is liable for qualified theft. because he was entrusted with the same funds, and he took the same funds.

Q: What if, in the same problem, after the COA auditor found out that Php 2000 was missing, A was charged with


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A: Yes, he is liable of Malversation of public funds or property under Article 217 through Negligence. There was inexcusable negligence on his part said the Supreme Court, because all by himself, carried the millions worth of dangerous drugs in the PDEA van, considering the value of the said dangerous drugs, he should have asked for back up. Yes, he survived, but he was charged with Malversation of public funds or property through CULPA.

Q: What if, there is a public officer whose office is in pasay. He is going to have a meeting in Caloocan. And so he went

CRIMINAL LAW 2 to Caloocan in one afternoon and attended the said meeting. He had to go to pasay in order to make a report, However, the traffic was heavy, so instead of using his car on the way back, he rode the LRT. Upon reaching the office, he realized that his bag was opened, and the cellphone which was __5:17___ by the Government was already gone. By reason thereof, he was charged with Malversation under Article 217 because through his negligence, the cellphone which was ____ to him by the Government and for which he is accountable to the Government was now missing. It was taken or stolen by somebody. Is he liable? He was convicted by the SandiganBayan but when it came to the Supreme Court, the Supreme Court acquitted him.

ILLUSTRATION: Q: What if a public officer has under his administration public funds which is for a certain project. So let us say that X is the city administrator. Under his administration, there was Php500,000, the said Php 500,000 was for the construction of a bridge between one barangay to another barangay. Then suddenly there was a typhoon, a big typhoon and many of the constituents were rendered homeless. And so, they had to stay in the basketball court, they need food, clothing, water and other basic needs. And so, the city administrator made use of the Php 500,000 under his administration to buy these basic needs of his constituents. Is the said public officer, the city administrator liable of any crime?

A: According to the Supreme Court, there was no negligence on the part of the said public officer. He cannot be faulted for having taken the LRT because of the said heavy traffic. It cannot be said that there was negligence on his part in placing the cellphone inside his bag, because, where else would you place a cellphone but inside the bag for safekeeping. It would have been different while on board, he was using the said cellphone. Hence, the Supreme Court said, there was no negligence and therefore, although convicted by the SandiganBayan, he was acquitted by the Supreme Court.

A: Yes, he is liable for technical Malversation under Article 220.

ARTICLE 218 – FAILURE OF ACCOUNTABLE OFFICER TO RENDER ACCOUNTS ELEMENTS: 1. Offender is a public officer, whether in the service or separated therefrom 2. He must be an accountable officer for public funds or property 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 two months after such accounts should be rendered

ARTICLE 219 – FAILURE OF RESPONSIBLE PUBLIC OFFICER TO RENDER ACCOUNTS BEFORE LEAVING THE COUNTRY ELEMENTS: 1. 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 Philippines without securing from the Commission on Audit a certificate showing that his accounts have been finally settled

ARTICLE 220 – ILLEGAL USE OF PUBLIC FUNDS OR PROPERTY (Technical Malversation) ELEMENTS: 1. Offender s a public officer 2. there is a public fund or property under his administration 3. Such public fund or property has been appropriated by law or ordinance 4. He applies the same to a public use other than that for which such fund or property has been appropriated by law or ordinance.


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BEST EXAMPLE: GMA and other head of Philhealth before was charged by Frank Chavez because of Technical Malversation because of transfer of COA funds, which was used for Philhealth purposes during the elections. And so, because of that, according to Frank Chavez, they are liable for Malversation. They were charged with Technical Malversation. But their contention was there was a law that allowed it. If there was a law that allowed it, then, there was no violation. But, if there is no law, there is an illegal transfer of funds, therefore, technical Malversation will resolve.

ARTICLE 217

ARTICLE 220

T h e p u b l i c o f f i c e r The public officer did not misappropriates the fund misappropriate the funds for his personal use. for his personal use, he used it for another public purpose other than that which has been appropriated by law or ordinance that is why it is T E C H N I C A L MALVERSATION – the offense is on the technicality of the use of funds. The public officer has in his possession public funds or property for safekeeping. It is under his custody and control and therefore it is for his safekeeping and he has the obligation to account it later on to the Government

The public officer has in his possession public funds or property is only under his administration. Not for safekeeping, but only for the purpose of administrating it that is, for applying it for the purpose which it has been appropriated by law or ordiance

ARTICLE 221 – FAILURE TO MAKE DELIVERY OF PUBLIC FUNDS OR PROPERTY

CRIMINAL LAW 2 ELEMENTS: 1. That the public officer has government funds in his possession 2. That he is under obligation to make payments from such funds 3. That he fails to make payment maliciously

Punishable acts: 1. Failing to make payment by a public officer who is under obligation to make such payment from Government funds in his possession 2. Refusing to make delivery by a public officer who has been ordered by competent authority to deliver any property in his custody or under his administration

ARTICLE 222 – OFFICERS INCLUDED IN PRECEDING PROVISIONS Private Individual who may be liable under Art. 217-221: 1. Private Individual who in any capacity whatsoever, have charge of national, provincial or municipal funds, revenue or property 2. Administrator, depository of funds or property attached, seized or deposited by public authority even if such property belongs to a private individual 3. Those who acted in conspiracy in malversation 4. Accomplice and accessories to malversation

Can private property be the subject of Malversation? YES, under the 2nd act in Article 222, that is when the said funds or property has been attached, seized or deposited by public authority, it now becomes in custodialegis and it now assumes the character of being public funds or property. If any are misappropriated, then the crime committed is Malversation and not theft.

INFIDELITY IN THE CUSTODY OF PRISONERS (Articles 223, 224, 225) ARTICLE 223 – CONNIVING WITH OR CONSENTING TO EVASION ELEMENTS: 1. Offender is a public officer 2. He has in his custody or charge a prisoner, either detention prisoner or prisoner by final judgment 3. Such prisoner escaped from his custody 4. That he was in connivance with the prisoner in the latter’s escape, or is with his consent

ARTICLE 224 – EVASTION THROUGH NEGLIGENCE ELEMENTS: 1. Offender is a public officer 2. He is charged with the conveyance or custody of a prisoner, either detention prisoner or prisoner by final judgment 3. Such prisoner escapes through his negligence

ARTICLE 225 – ESCAPE OF PRISONER UNDER THE CUSTODY OF A PERSON NOT A PUBLIC OFFICER ELEMENTS: 1. Offender is a private individual 2. Conveyance (or charge) of custody of prisoner or person under arrest is confided to him 3. Prisoner or person under arrest escapes


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Offender consents to the escape of the prisoner or person under arrest or that the escape takes place through his negligence

4.

Whether it be under Art. 223, 224, 225, the offender infidelity in the custody of prisoners is one who has been entrusted with the custody and charge of the prisoner. Whether the prisoner is a prisoner convicted by final judgment or a detention prisoner. He must be charged, he must be the custodian of the said prisoner because the essence of the crime is the violation of the trust reposed on him. Because prisoners are accountabilities of the Government.

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Can a private individual commit infidelity? Yes, under Art. 225. If he is entrusted with the custody of this prisoner and the prisoner escapes, either in connivance with him or through his negligence, then his liability is infidelity in the custody of prisoners

ILLUSTRATION: Q: A has been charged with illegal sale of dangerous drugs. She is behind bars, it is a non-bailable offense, and therefore, while the case is ongoing, she is behind bars. So, it was the hearing date, she was accompanied by the jail warden, the jail guard to the court, and after trial, there was this husband and two children of the said woman who was in jail. The husband and two children talked, and when the said woman prisoner was about to be brought to jail, the husband talked to the jail warden. He invited the jail warden for a merienda, in a canteen inside the hall of justice. And so, the jail warden saw nothing wrong and so, he had merienda with the woman prisoner, the husband and the two children. The handcuffs had to be removed for the woman prisoner to eat. After eating, the woman prisoner said that she needed to answer the call of nature, and so, she went to the restroom, also inside or within the hall of justice. The jail guard allowed her inside while the jail guard was left outside, waiting. Hours passed, no woman prisoner came out. It so happens that the said husband put some disguise for the woman to use so that she could escape without being noticed by the said jail guard, and woman prisoner was able to escape without being noticed by the said jail guard. Is the said jail guard liable for infidelity in the custody of prisoner, or is it a mere laxity which would not amount to infidelity in the custody of prisoner?

A: People vs. Nava – The Supreme Court said that mere laxity would not amount to negligence under Art. 224. Because according to the Supreme Court in that old case, the negligence being required in order that a public officer may be entitled, must be a deliberate non-performance of his duty. Here, it is only a mere laxity on the part of the said public officer for not having accompanying the said woman in the rest room.

Rodriguez vs. SandiganBayan(new case) – The Supreme Court said otherwise. According to the Supreme Court, the moment that a public officer, a jail warden has accompanied a prisoner outside jail, he must not have lost sight of the said prisoner. The only obligation of the said jail warden after the

CRIMINAL LAW 2 trial was to bring her back to the court. The fact that the said jail guard allowed himself to have a merienda, and even allowed the woman prisoner to go to the restroom alone, there was laxity on the part of the said jail guard. The Supreme Court said, LAXITY is a deliberate non-performance of his official duty as the guard of the said prisoner, thereby amounting to infidelity in the custody of prisoner under Art. 224.

INFIDELITY IN THE CUSTODY OF DOCUMENTS (ARTICLES 226, 227, 228) ARTICLE 226 – REMOVAL, CONEALMENT OR DESTRUCTION OF DOCUMENT ELEMENTS: 1. Offender is a public officer 2. He removes, destroys, or conceals documents or papers 3. Said documents or papers should have been entrusted to such public officer by reason of his office 4. Damage, whether serious or not, to a third party or to the public interest should have been caused

Under Article 226, in order for infidelity in the custody of documents to arise, it is necessary that there be damage caused to a third person or to the public interest. If damage is serious, the penalty is QUALIFIED, therefore, the damage may or may not be serious provided that there is damage, the crime will arise. DAMAGE IS NECESSARY in order to give rise to infidelity in the custody of documents.

ARTICLE 227 – OFFICER BREAKING SEAL ELEMENTS: 1. Offender is a public officer 2. He is charged with the custody of papers or property 3. These papers or property are sealed by proper authority 4. He breaks the seals or permits them to be broken

Under Article 227, officer breaking the seal, infidelity in the custody of prisoners to arise, even without damage caused to a third party or to public interest. Damage is NOT an element. MERE BREAKING of the seal of the document will already consummate the crime.

ARTICLE 228 – OPENING A CLOSED DOCUMENT ELEMENTS: 1. Offender is a public officer 2. Any closed papers, documents, or objects are entrusted to his custody 3. He opens or permits to be opened said closed papers, documents or objects 4. He does not have proper authority

Infidelity in the custody of documents, the public officer has been entrusted with papers, documents or objects, which have been closed by proper authority and the said public officer opened the said closed document or permitted others to open the same. Again, Damage is NOT an element.


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MERE ACT OF OPENING the said closed document will give rise to the crime.

ILLUSTRATION: Q: What if A has been charged with illegal sale of dangerous drugs. The case was on trial, during the trial of the case, the fiscal presented the first police officer who acted as the poseur buyer in the course of the testimony of the police officer, the fiscal produced and showed to him for identification the marked money. So the marked money consists of 5, 100 peso bill. The fiscal presented it to the police and the police identified it as indeed the marked money because of the serial numbers and because of the markings, and thereafter the marked money have been marked as Exhibit A, B, C, D, E for the prosecution. After the trial, they were placed inside an envelope and given to the clerk of court, the custodian of the evidence which have already been marked. So trial ended that day, it was now lunch time. The clerk of court was on her table and so the vendor arrived. The clerk of court wanted to buy lunch and she said, how much. The vendor said it costs 50 peso. The clerk of court pulled out her money; it was a 1000 peso bill. The vendor said, “anglakinamanniyan, walaakongpanukli” And so, by reason thereof, he gave it back to the clerk of court. The clerk of court said that she had no smaller bills, and he remembered the exhibits. And so, he took 100 peso bill, marked as Exhibit E. And she paid it to the vendor and the vendor gave him the change of 50 peso. After eating, before 1:00, the said clerk of court immediately went outside to change her big 1000 peso bill into smaller bills. When he now has these smaller bills, he got one 100 peso bill and marked it as Exhibit E and then he signed it and placed it inside the envelope. Here comes the next hearing date, on the next hearing date, another police officer was presented, the fiscal produced the said documentary exhibits, the marked money and asked it from the clerk of court. So the fiscal showed it to the police officer, the police officer identified Exhibits A, B, C, D. However, when it comes to exhibit E, the police officer said, “Your Honor, it has a different serial number from the one in our sworn statement” and so because of that, an investigation happened and the court learned that it was taken by said clerk of court and used in buying food. What crime, if any is committed by the said clerk of court? Is it malversation or is it infidelity in the custody of documents?

A: The crime committed is infidelity in the custody of documents under Art. 226 by the public officer in destroying the said document. This marked money becomes documentary evidence, the moment they have been marked as exhibits. Money here is not used as a medium of exchange, but as documents because they have been marked as documentary evidence. The moment they have been taken, removed, concealed or destroyed, the crime committed is infidelity in the custody of documents because the clerk of court is the custodian of the documentary exhibits. If money is used, not as a medium of exchange, but like this, as documentary exhibits or any other use other than as a medium of exchange, the one who malverse, or use it is the custodian of the said documents, the crime is infidelity in the custody of documents and NOT malversation.

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When the clerk of court took the 100 peso bill, he destroyed the exhibit, the documentary exhibit of the said prosecution and the prosecution was seriously damaged interface.

REVELATION OF SECRETS (Article 229-230) ARTICLE 229 – REVELATION OF SECRETS BY AN OFFICER Punishable acts: 1. By revealing any secrets which affect public interest learned by him in his official capacity ELEMENTS: 3. Offender is a public officer 4. He knows of a secret by reason of his official capacity 5. He reveals such secret without authority or justifiable reasons 6. Damage, great or small, is cause to the public interest

It is necessary that there be Damage caused, whether serious or not. 2.

Wrongfully delivering papers or copies of papers of which he may have charge and which should not be published thereby causing damage, whether serious or not, to a third party or to public interest. ELEMENTS: i. Offender is a public officer ii. He has charge of papers iii. Those papers should not be published iv. He delivers those papers or copies thereof to a third person v. The delivery is wrongful vi. Damage is caused to public interest

ARTICLE 230 – PUBLIC OFFICER REVEALING SECRETS OF PRIVATE INDIVIDUAL ELEMENTS: 1. Offender is a public officer 2. He knows of the secrets of private individual by reason of his office 3. He reveals such secrets without authority or justifiable reason

Damage is NOT an element in Article 230.

ARTICLE 231 – OPEN DISOBEDIENCE ELEMENTS: 1. Offender is a judicial or executive officer 2. There is judgment, decision, or order of a superior authority 3. Such judgment, decision or order was made within the scope of the jurisdiction of the superior authority and issued with all the legal formalities 4. Offender without any legal justification openly refuses to execute the said judgment, decision or order which he is duty bound to obey Open Disobedience is committed by any judicial or executive officer who shall openly refuse without any legal motive to execute a judgment or decision rendered by a superior authority in the exercise of his duty and in the legal infirmities of the law.


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ILLUSTRATION: Q: What if in the case of Duterte, the sheriff wishes to execute a writ of execution and cause the squatters to leave the place because of the execution issued by the court has to be implemented. Had not the sheriff performed the said act, is he liable of any crime? Had the sheriff refused to execute the writ of execution issued by the said judge? Is he liable of any crime?

A: Yes, he is liable of Open Disobedience under Article 231. He openly refused to execute a writ of execution issued by a judge.

ARTICLE 232 – DISOBEDIENCE TO ORDER OF SUPERIOR OFFICER, WHEN SAID ORDER WAS SUSPENDED BY INFERIOR OFFICER ELEMENTS: 1. Offender is a public officer 2. An order is issued by his superior for execution 3. He has for any reason suspended the execution of such order 4. His superior disapproves the suspension of the execution of the order 5. Offender disobeys his superior despite the disapproval of the suspension

The offender refuses to disobey the suspension of the said order which was disapproved by the said public officer. ARTICLE 233 – REFUSAL OF ASSISTANCE ELEMENTS: 1. Offender is a public officer 2. Competent authority demands from the offender that he lend his cooperation towards the administration of justice or other public service 3. Offender fails to do so maliciously

Public officer who shall fail to lend his cooperation towards the administration of justice or any other public service despite demand by competent authority.

ILLUSTRATION: Q: A raped B. B was treated by a medico legal officer at the PNP. This medico legal officer who has examined A, issued a medical certificate, And so in the case filed by B against A for this so-called “rape”, the fiscal moved that the subpoena (adjustificandum) be sent to this public officer, the medico legal office who examined the rape victim. However, despite receipt of the said subpoena, the medico legal officer failed to appear. He did not appear without any justifiable reason at all. The said prosecutor move again for the issuance of another subpoena, a second subpoena. Again, despite the receipt, the medico legal officer failed to appear in court and testified and failed to give the copy of the medico legal certificate. What crime if any has the said medico legal officer has committed?

A: He is liable for Refusal of Assistance under Article 233. It is committed by a public offcer that despite demands of the public authority shall fail to lend his cooperation toward the administration of justice or any other public service. Thereby, causing damage serious or not, to public interest.

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NOTE: If the damage is serious, the penalty is QUALIFIED. ARTICLE 234 – REFUSAL TO DISCHARGE ELECTIVE OFFICE ELEMENTS: 1. Offender is elected by popular election to a public office 2. He refuses to be sworn in or to discharge the duties of the said office 3. There is no legal motive for such refusal to be sworn in or to discharge the duties of said office

This is a crime which cannot be committed in Philippine Jurisdiction. Refusal to discharge public duties is committed by any person entitled to a public office by means of popular election, refuses to assume to assume the powers and duties of his office. He refuses to be sworn in. This will not happen in our lifetime. This will never happen in the Philippine Jurisdiction because here, even if he did not win in the election, he wanted to hold office.

ARTICLE 235 – MALTREATMENT OF PRISONERS ELEMENTS: 1. Offender is a public officer or employee 2. He has under his charge a prisoner or detention prisoner 3. He maltreats such prisoner 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 punishments not authorized by the rules and regulations ii.By inflicting such punishments (those authorized) in a cruel or humiliating manner b. By maltreating such prisoner to extort a confession or to obtain some information from the prisoner

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X. X snatched the handbag with the money. A police officer passing by saw the incident and on boarded their mobile patrol. They were able to arrest the man, took the bag and returned it to the said victim. Thereafter, they placed X inside the mobile patrol. While inside, they kicked, mold the man. And so, the man suffered less serious physical injuries. What crime is committed by the said police officers?

A: The crime committed is less serious physical injuries. It is not maltreatment of prisoners because the said person, X, is not yet a prisoner. He is only a person under arrest because he has just been arrested for having committed a crime, but he is not yet a prisoner. In order to be considered as a prisoner, he must be brought to the PNP station, taken a picture, left view, side view, front view, thumbmark and incarcerated. He is now an accountability of the Government, he is now a prisoner. But before that, he is not yet a prisoner. He is only a person under arrest. That is why in the problem, the police officers are liable only for less serious physical injuries and not of maltreatment of prisoners.

Q: What if in the same problem, they chased the man. They were able to catch the said man and brought him to the PNP station. Booked him and incarcerated him, and all the things needed to be done to a prisoner. Later, he was brought out of jail for investigation to be brought in the Investigation section. In the investigation, he was being forced to admit to the commission of the crime. And so, by reason thereof, the police officer boxed him and gave him a huge black eye. The left eye suffered so much that he lost sight, amounting to serious physical injuries. What are the crimes committed by the police officer? A: Two crimes – Maltreatment of Prisoners and Serious Physical Injuries. Maltreatment of Prisoners because he is a prisoner who was maltreated in order to extort a confession and Serious physical injuries because by reason of the injury inflicted, he lost an eye.

Q: Are you going to complex them? because a single act constitute a grave and less grave felony, are you going to complex them under Art. 48?

Who is the offender? Any public officer or employee

A: No. You cannot complex them. Because under Article 235, it is expressly provided that the liability for maltreatment of prisoners shall be in addition to the liability for any other physical injuries or damage caused. Therefore two crimes will be charged against the police officer.

Who is the offended party? He must be a prisoner -

In order to be considered a prisoner, it is necessary that the said person has already been arrested, brought to the PNP station and he has been incarcerated. If he is not a prisoner, then, the crime can be physical injuries, whatever injuries that may have been sustained by the prisoner, but NOT maltreatment of prisoners

What if maltreatment does not only include physical maltreatment. It shall also include moral, emotional, psychological maltreatment because the law uses the phrase physical injuries or damage caused.

ILLUSTRATION: Q: What if A has just withdrew his money from her ATM account, she placed the money inside her bag and she was already walking towards home when suddenly here comes


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There is also a violation of R.A. 9745, Anti-Torture Act, because under Section 14 of the Anti-Torture Act, Torture shall not absorb and shall not be absorbed by any other crime committed as a consequence. Therefore, he can also be held liable under the socalled Anti-Torture Law.

ARTICLE 236 – ANTICIPATION OF DUTIES OF A PUBLIC OFFICE ELEMENTS: 1. That the offender is entitled to hold a public office or employment either by election or appointment

CRIMINAL LAW 2 2. 3.

Shall assume the performance of the duties and powers of a public official or employee Without being sworn into office or having given the bond required by law

ARTICLE 237 – PROLONGING PERFORMANCE OF DUTIES AND POWERS ELEMENTS: 1. That the offender is holding a public office 2. That the period allowed by law for him to exercise such function and duties has already expired 3. That the offender continues to exercise such function and duties

ARTICLE 238 – ABANDONMENT OF OFFICE OR POSITION ELEMENTS: 1. That the offender is holding a public office 2. That he formally resigns from his office 3. But before the acceptance of his resignation, he abandons his office

Abandonment of office is committed by a public officer who has already formally resigns from his position, and having formally resigned from his position, he abandons to the detriment of public service. Despite the fact that his resignation has not yet been accepted by a superior authority. Under Labor Law, when you are an employee, when you file a resignation, it does not mean you are already resigned. There must be an ACCEPTANCE from the superior officer before it can be said that he have already resigned. So here, the public officer has already formally resigned, his resignation has not been accepted, yet he abandons to the detriment of public service. What is the penalty? In the abandonment of office, the penalty is QUALIFIED if the purpose of the said public officer is to evade the prosecution punishment of the crime involving violation of Title 1 – Book 2 (Crimes against National Security), or Chapter 1 – Title 3 of Book 2 (Rebellion, Coup d’etat, Sedition, etc.)

ARTICLE 239 – USURPATION OF LEGISLATIVE POWERS ELEMENTS: 1. That the offender is an executive or judicial officer 2. That he: a. Makes general rules and regulations beyond the scope of his authority, or b. Attempts to repeal a law, or c. Suspend the execution of thereof NOTE: It can only be committed by an executive or judicial officer

ARTICLE 240 – USURPATION OF EXECUTIVE FUNCTIONS ELEMENTS: 1. That the offender is a judge 2. That the offender: a. Assumes the power exclusively vested to executive authorities of the Government, or b. Obstructs executive authorities from the lawful performance of their functions NOTE: It can only be committed by a Judge


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A R T I C L E 2 4 1 – U S U R PAT I O N O F J U D I C I A L FUNCTIONS ELEMENTS: 1. That the offender is holding office under the Executive Branch of the Government 2. That he: a. Assumes the power exclusively vested in the Judiciary, or b. Obstructs the execution of any order or decision given by a judge within his jurisdiction NOTE: It can only be committed by a public officer of the Executive Branch of the Government

Therefore, if the person who assumes judicial power does not belong to the Executive Branch, but belongs to the legislative branch, the crime is not Usurpation of Judicial Function, but USURPATION OF PUBLIC FUNCTION AND OFFICIAL AUTHORITY under Article 177, because Article 239, 240 and 241 are specific as to the offenders. So, let us say, in the one who encroached upon the powers of the Judge, does not belong to the executive branch but he is legislator, it cannot be considered as usurpation of judicial functions, rather it will beUsurpation Of Public Function And Official Authority Under Article 177.

ARTICLE 242 – DISOBEYING REQUEST OF DISQUALIFICATION ELEMENTS: 1. That the offender is a public officer 2. That a proceeding is pending before such public officer 3. That there has been a question regarding the jurisdiction brought before the proper authority 4. There is a question brought before the proper authority regarding his jurisdiction, which is yet to be decided

ARTICLE 243 – ORDERS OR REQUESTS BY EXECUTIVE OFFICERS TO ANY JUDICIAL AUTHORITY ELEMENTS: 1. That the offender is an executive officer 2. That the offender addresses any order or suggestion to any judicial authority 3. That the order or suggestion relates to any case or business within the exclusive jurisdiction of the courts of justice

ARTICLE 244 – UNLAWFUL APPOINTMENTS ELEMENTS: 1. Offender is a public officer 2. He nominates or appoints a person to a public office 3. Such person lacks the legal qualification thereof 4. Offender knows that his nominee or employee lacks the qualifications at the time he made the nomination or appointment

ARTICLE 245 – ABUSES AGAINST CHASTITY ELEMENTS: 1. That the offender is a public officer 2. That he solicits or makes any indecent or immoral advances to a woman 3. That the offended party is a woman who is: a. Interested in matters pending before the public officer for his decision or where the public

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officer is required to submit a report or to consult with a superior officer; or b. Under the custody of the offender, who is a warden or other public officer directly charged with the care and custody of prisoners or persons under arrest; or c. The wife, daughter, sister or any relative falling within the same degree of affinity of the person under the custody and charge of the offender •

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How are abuses against chastity is committed? There are three acts. (Refer to the elements) 1. Public officer solicits or makes any indecent or immoral advances to a woman who is interested in matters pending before his for his decision or where the public officer is required to submit a report or to consult with a superior officer 2. Warden or other public officer directly charged with the care and custody of prisoners or persons under arrest, and he solicits or makes any indecent or immoral advances to a woman 3. Warden or other public officer directly charged with the care and custody of prisoners or persons under arrest, and the said officer makes any indecent or immoral advances to the wife, daughter, sister or any relative falling within the same degree of affinity of the male prisoner.

Who is the offender? He must be a public officer because there must be abuse of public office in making immoral or indecent advances. Essence of the crime is taking advantage of one’s position in soliciting or making immoral or indecent advances.

Mere act of soliciting or making immoral and indecent advances will already give rise to the crime. It is not necessary that the woman will comply with the said solicitation or immoral or indecent advances.

The solicitation must not be the gospel type of solicitation. It must be bad, persistent, threatening such that if the woman would not comply then it would adverse on her part.

If a jail warden impregnated a female detainee, even if they love one another, still liable because detainees are liabilities of the state.

TITLE EIGHT CRIMES AGAINST PERSONS (ARTICLES 246 – 266-A)

ART 246 – PARRICIDE ELEMENTS: 1. That a person is killed 2. That the deceased is killed by the accused 3. That the deceased is the father, mother, or child, whether legitimate or illegitimate, or a legitimate other ascendant, or legitimate other descendant, or legitimate spouse of the accused


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Parricide is committed when a person kills his father, mother, child, whether legitimate or illegitimate, legitimate other ascendant, legitimate other descendant, or legitimate spouse. Therefore the offended party or deceased or the victim is specified, he must be the father, mother, child whether legitimate or illegitimate, legitimate other ascendant, legitimate other descendant, or legitimate spouse. Parricide is a crime based on relationship. What kind of relationship? • First, it must be a legitimate relationship • except in the case of parent and child. Second, the said relationship must be in the direct line Third, the relationship must be by blood (grandfather killed a grandson, a mother killing a son, a son killing a father)

Q: So a father killed an illegitimate son. What crime is committed? A: It is parricide. Although the crime is based on legitimate relationship, the exception is in case of children, whether legitimate or illegitimate.

Q: A brother killed another brother. Is the crime committed parricide? A: No, the crime committed is murder or homicide, as the case may be and not parricide because the relationship between a brother and another brother is in the collateral line and not in the direct line. Q: What if a stepfather killed his stepson? A: The stepfather is not liable for parricide. It can either be murder or homicide, as the case may be, because their relationship is not based on blood. • Again, the relationship must be legitimate, in the direct line and by blood.

In Parricide, the circumstance which will qualify is the relationship, therefore relationship between the offender and the offended party must be stated in the information. Q: Let us say that the husband killed the wife. In the information filed by the fiscal, the fiscal failed to state that the husband is the legal husband of the said victim. However, during trial, by virtue of a certificate of marriage, it was proven that the accused was the legal husband of the said victim-wife. Can the husband be convicted of parricide? A: No, the husband cannot be convicted of parricide. This is because the relationship was not alleged in the information although proven during trial. Since the relationship between the husband and the wife is not alleged in the information, although proven during trial, he cannot be convicted of parricide. It can only be murder or homicide, as the case may be. •

Q: What if a husband wanted to kill his wife. So he has a mistress, the husband wanted to dispose his wife. However, he cannot do it on his own and so the husband hired a high-profile killer, he paid the man 100,000 pesos to kill the wife. And so the man conducted surveillance on the

CRIMINAL LAW 2 wife, checked the itinerary of the wife and so when the wife was getting out of the grocery, here comes the killer. The killer, on board a motorcycle, went directly to the wife, shot her and off he went. The wife died. What crime/crimes is/ are committed? A: The husband is liable for principal but said killer is liable for murder. Conspiracy will not lie. Although they conspired for the killing of the wife, the husband, being the principal by inducement and the killer, being the principal by direct participation, conspiracy will not lie. This is because the circumstance which qualifies parricide, the relationship, is personal to the husband and cannot be transferred to a stranger. That is why there will two informations filed, one is parricide as against the husband as a principal by inducement and the other one is murder as against the killer.

ART 247 – DEATH OR PHYSICAL INJURIES INFLICTED UNDER EXCEPTIONAL CIRCUMSTANCES ELEMENTS: 1. That a legally married person or a parent surprises his spouse or his daughter, the latter under 18 years of age and living with him, in the act of committing sexual intercourse with another person. 2. That the said legally married spouse he or she kills any or both of them or inflicts upon any or both of them any serious physical injury in the act or immediately thereafter 3. That he has not promoted or facilitated the prostitution of his wife or daughter, or that he or she has not consented to the infidelity of the other spouse.

FIRST REQUISITE/ELEMENT: •Under the first element, it is required that the legally married spouse surprises the other spouse while in the actual act of sexual intercourse with another person. So note the surprising must be in the actual act of sexual intercourse and NOT before, NOT after. •If you will read the book of Reyes, Justice Laurel, naghinanakitsya. Sabinya, “Why? Why should it be in the actual act of sexual intercourse, you already saw your spouse with another man, why wait for the sexual intercourse? You know it will happen, why wait for it for Article 247? This is what Justice Laurel said. But the Supreme Court said no, the surprising must be in the act of sexual intercourse with another person. Not before, not after, not during the preliminaries.

SECOND REQUISITE/ELEMENT: • The second element requires that the said legally married spouse kills any or both of them or he inflicts serious physical injuries upon any or both of them. Again, while in the act of sexual intercourse or immediately thereafter. There is no question as to the “actual act of sexual intercourse” but what about “immediately thereafter”? •What does the phrase “immediately thereafter” mean?


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The Supreme Court said, “immediately thereafter” means there must not be lapse of time between the surprising and the killing or infliction of serious physical injuries. Therefore the surprising and the killing or infliction of serious physical injuries must be a continuing process.

Q: What if the husband arrived home and the wife arrived home from the market. She was about to go the kitchen when suddenly, she heard voices in the master’s bedroom and so she opened the said master’s bedroom and saw her legal husband in actual sexual intercourse with another person. Notice that the law says, “other person” which means it could be a man or a woman. Upon seeing that, the wife who still has a knife in the basket, immediately went towards the husband and stabbed him. The woman fled. The husband died. Of what crime would you prosecute the said wife? The wife is liable for parricide under Article 246 for having killed her husband. If you are the counsel of the said wife, what defense would you put up in order to free your client from criminal liability? A: Article 247 or Death under exceptional circumstances. The Supreme Court said that Article 247 is not a felony. Article 247 is a privilege, in fact is it a defense. If Article 247 is invoked, the accused is free from criminal liability. It is an absolutory cause, an exempting circumstance. The Supreme Court said that the penalty stated therein, destierro, is not really a penalty on the legally married spouse who killed the other spouse. It is not a penalty but it is more of a guard, a privilege for him so that he may be free from any retaliation of any of the family of the victim. So destierro here is not really a penalty. Again, Article 247 is not a felony. It is a defense, a privilege; it is an exempting circumstance or an absolutory cause.

PEOPLE v. ABARCA In this case, there was this student reviewing for the bar. There were already rumors that his wife was having an affair. So one time, he went home unannounced. Upon his arrival, he saw his wife in sexual intercourse with another man. The man jumped out the window. The husband wanted to kill the man but he had no weapon at the time. The man went away. It took the husband an hour before he was able to find a weapon and upon finding a weapon, he went directly to the whereabouts of the man, the lover of the wife and killed the man. It took him one hour. The killing took place an hour, not in the actual sexual intercourse, but is it immediately thereafter? Despite the fact that one hour had lapsed, would it be within the meaning of immediately thereafter?

The Supreme Court, in this special case, said yes. According to Supreme Court, when the law uses the phrase “immediately thereafter”; that the killing or the infliction of serious physical injuries must take place immediately thereafter, the law did not say that the killing must be done instantly. According to the Supreme Court, it suffices that the proximate cause for the said killing is the said pain and the look on the said husband upon chancing his wife in the basest act of infidelity. This is an exceptional case.

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•Why an exceptional case? •

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Because henceforth, after People v Abarca, the Supreme Court has already interpreted “immediately thereafter”, as there must be no lapse of time between the surprising and the killing. The surprising and the killing must be continuous. Legal luminaries say that this is an exceptional case because the husband was reviewing for the bar which is why he was given this special _. Because in all other cases after this, the Supreme Court is strict in implementing “immediately thereafter”. The Supreme Court is strict because this is not a felony, it is a privilege therefore it must be strictly interpreted and not liberally interpreted in favor of the accused. Look that if the injury inflicted by the legally married spouse on the lover or the other spouse, is less serious physical injuries or slight physical injuries, he is totally free from criminal liability. Liability will only come in if the other spouse is killed or inflicted with serious physical injuries. With regards to the liability of the accused to the injuries sustained by other people, liable to physical injuries through negligence, as the case maybe. There is no intent to kill the other victims. Note that the SC ruled that inflicting death under exceptional circumstances is NOT murder.

ART 248 – MURDER ELEMENTS: 1. That a person was killed 2. That the accused killed him 3. That the killing was attended by any of the qualifying circumstances mentioned in Article 248 4. That the killing is not parricide or infanticide

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Murder is committed by any person who shall kill another person which will not amount to parricide or infanticide and the killing is attended by the following qualifying circumstances: 1. Treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense, or of means or persons to insure or afford mutiny. 2. In consideration of price, reward or promise 3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin. 4. On occasion of any calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic, or any other public calamities. 5. With evident premeditation.


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With cruelty, by deliberately and inhumanly augmenting the suffering of the victim or outraging or scoffing at his person or corpse (RA 7659)

These are the qualifying circumstances for murder (See Article 14-aggravating circumstances, Book I) Know the elements in Article 14. All of these are aggravating circumstance under Article 14. Note, in order to qualify a killing to murder, only one is necessary.

If in the information, A killed B and it was attended by treachery, in consideration of a price, reward or promise, by means of a motor vehicle, so there are three qualifying circumstances. Only one will suffice to qualify the murder to killing, all the other aggravating circumstances will be considered not as qualifying circumstances but as mere generic aggravating circumstances.

ART 249 – HOMICIDE ELEMENTS: 1. That a person was killed 2. That the accused killed him without any justifying circumstance 3. That the accused had the intention to kill, which is presumed 4. That the killing was not attended by any of the qualifying circumstances of murder, or by that of parricide or infanticide. When a person kills another person, and it is not • attended by any qualifying circumstance under Article 248, the killing is considered as Homicide under Article 249.

A R T 2 5 0 – P E N A LT Y F O R F R U S T R AT E D O R ATTEMPTED PARRICIDE, MURDER OR HOMICIDE ART 251 – DEATH CAUSED IN A TUMULTOUS AFFRAY What is a tumultuous affray? • A tumultuous affray is a commotion, wherein • people fight in a tumultuous or confused manner such that it cannot be ascertained or determined who has killed the victim or who has inflicted physical injuries on the victim.

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ELEMENTS: 1. That there be several persons 2. That they did not compose groups organized for the common purpose of assaulting and attacking each other reciprocally 3. That these several persons quarreled and assaulted one another in a confused and tumultuous manner 4. That someone was killed in the course of the affray 5. That it cannot be ascertained who actually killed the deceased 6. That the person or persons who inflicted serious physical injuries or who used violence can be identified. Article 251, death in a tumultuous affray, is committed when there are several persons who do not compose groups which have been organized to assault and

CRIMINAL LAW 2 quarrel with one another reciprocally, assaulted and attacked each other reciprocally and in the course of the affray, someone is killed. And it cannot be ascertained or identified or determined who killed the victim, then the person who inflicted serious physical injuries or those who used violence against the said victim can be identified. •

Someone is killed. Note that he can be any person; he can be someone from the affray, he can be a mere passerby, he can be just someone watching the affray, so long as he is killed in the affray and it cannot be ascertained who killed him, then the person who inflicted serious physical injuries on him is liable if he can be identified. If this person cannot be identified, then the person who used any kind of violence against him shall be criminally liable.

ART 252 – PHYSICAL INJURIES INFLICTED IN TUMULTUOUS AFFRAY ELEMENTS: 1. That there is a tumultuous affray 2. That a participant or some participants thereof suffer serious physical injuries or physical injuries of a less serious nature only. 3. That the person responsible thereof cannot be identified 4. That all those who appear to have used violence upon the person of the offended party are known.

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Note that the victim here must be a participant. The law is specific. The participants must be the one injured with serious physical injuries or less serious physical injuries. Not slight physical injuries. Article 252, we have physical injuries inflicted in tumultuous affray, is committed when in a tumultuous affray, a participant has suffered serious physical injuries or less serious physical injuries and it cannot be ascertained who inflicted these injuries but the person who used violence on the victim can be identified or determined. If the injury caused to the victim is only slight physical injuries, then no one is liable because if a person engaged in a tumultuous affray or participated therein, the law presumes that it is __ therefore no one is liable if the injuries sustained is only slight physical injury and it cannot be determined who inflicted the said slight physical injury on the victim.

Q: There was this tumultuous affray, several people were attacking and fighting each other. Suddenly, here comes a balot vendor. He saw the affray. He was just there, watching, suddenly he fell on the ground. He died because of a stab wound. Now, it cannot be ascertained who stabbed him, so no one saw who stabbed him. Who will be held criminally liable? A: Any person who inflicted serious physical injuries on him. No one has seen also who had inflicted serious physical injuries against him. The any person who inflicted any violence against him shall be criminally liable.


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Q: There was this tumultuous affray, several people were attacking and fighting each other. Suddenly, here comes a balot vendor who saw the affray and he was just there, watching. While he was watching the affray, one of the participants of the affray, X, saw him and went directly to the balot vendor and stabbed him twice. The balot vendor died. What crime is committed? Is it under Article 251, Death in tumultuous affray? A: No. It is murder or homicide as the case may be. This is because the perpetrator of the crime is identified, ascertained or determined. Death in a tumultuous affray under Article 251 can only be charged if the actual perpetrator of the crime who killed the victim cannot be ascertained or identified.

ART 253 – GIVING ASSISTANCE TO SUICIDE TWO ACTS PUNISHABLE: I.By assisting another to commit suicide, whether the suicide is consummated or not; or II.By lending assistance to another to commit suicide to the extent of doing the killing himself. • •

•

Giving assistance to suicide – binigyan mong rope; binigyan mo ng poison. A friend wanted to commit suicide, he doesn’t know the way, the means and you agreed with him, you assisted and gave the best poison in the world. So you assisted the said friend in committing suicide. Note that if a person assisted in committing suicide by giving him poison, the initiative must come from him. The desire to kill himself must come from the victim. He wanted to commit suicide and you merely provide assistance in the commission of suicide. B wanted to commit suicide, here comes A, A gave assistance to B but B survived. B did not die. Only A is criminally liable because suicide or attempt to commit suicide is not a felony within Philippine jurisdiction. It is only the one who assisted to commit suicide is criminally liable but not the person who attempted to commit suicide.

Q: What if a terminally sick person with cancer, he was lying in bed, almost lifeless and it was only a machine that was giving life to his body. Now, the mother of the patient and she took pity of her son because the son was agonizing and was only breathing through the said machine. The mother wanted to finish the suffering of the son and at the time she visited the hospital, she turned off the machine and the son died. He killed her son out of mercy. So it is mercy-killing or euthanasia. Is the mother liable for giving assistance to suicide? A: No because the initiative to kill did not come from the sai person who was ill. The crime committed by the mother is parricide for killing her son. If it were other person, it was murder. Evidently, it was murder because there was evident premeditation; there was thinking before doing the act of mercy-killing.

ART 254 – DISCHARGE OF FIREARMS/ ILLEGAL DISCHARGE OF FIREARMS ELEMENTS: 1. That the offender discharges a firearm against or at another person

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2. That the offender has no intention to kill that person

Q: What if there was this park. The park was full of people and then suddenly, here comes X, X went to the park, put out his firearm, and he fired shots in the air. What crime is committed? A: X committed Alarms and Scandals under Article 155. When he fired shots in the air, his intention was to cause disturbance of public peace and tranquility. The firearm was not aimed towards any person.

Q: What if X went to a public place full of people. X saw his enemy, Y, and so to threaten Y, X pulled out his firearm, aimed the firearm at Y in order to threaten him. X discharges the firearm, however, with no intention to kill Y. His only intention is to threaten Y and Y was not killed. What crime is committed? A: The crime committed is Article 254, Illegal Discharge of Firearms. Illegal discharge of firearms is committed by any person who aims and discharges the firearm to any other person absent the intent to kill the said person. The purpose is merely to threaten the said person.

Q: What if in the same public place, X went there and pulled out his firearm because he saw his enemy, Y. He aimed the gun at Y with intent to kill, because he wanted to kill his enemy. However, Y saw it and was able to avoid. What crime is committed? A: X committed attempted homicide or murder, as the case may be. Although Y was not hit, the fact that the said firearm was discharged with intent to kill, it is already attempted homicide or murder, as the case may be.

Q: What if in the said merry-making, there were so many people. X went there. He saw his enemy Y and went directly to Y, took out his gun and he poked the gun without discharging. What crime is committed? A: The crime committed is other light threats. So here, threatening another with a gun, without discharging, only poking. It is other light threats. It is not grave threats, it is not light threats. It is only other light threats, arrestomenor. •

•

So kapag discharge, pinutok – it could either be alarms and scandals, illegal discharge of firearms or attempted or frustrated murder or homicide, as the case may be. If no discharging, only poking, or threatening with a firearm, it is only other light threats

ARTICLE 255 – INFANTICIDE Infanticide is the killing of a child less than three (3) days old or less than seventy-two (72) hours. So in the case of infanticide, it is the age of the victim that is controlling. The victim, the child, the infant, must be less than three (3) days old. He must be less than seventy-two hours. If it is only three (3) days old or above it is any other crime but not infanticide. Who is the offender in Infanticide? • The offender can be the parents, the mother, the father, the grandparents or it can be any other person so long as the child is less than three (3) days old, it is


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infanticide. relationship.

It is the age that is controlling, not the

ILLUSTRATION: Q: So what if there was this woman and this woman gave birth to a child. After giving birth to the child while the child was only a day old, she already wanted to kill the child in order to conceal her dishonor. However, she could not kill the child by herself and so she asked a favor from a friend. And so the friend arrived and both the mother and the said friend killed the child, a day old, by suffocating the said child with a big pillow. The child less than three days old, died. What crime/s is/are committed? A: The mother is liable for infanticide. The said stranger friend is also liable for infanticide. There was conspiracy on them. This time conspiracy on life, both of them are liable for infanticide under only one information. Isang information langsa court and that is infanticide. Both the mother and the friend are conspirators of infanticide.

Now let us say that the mother is convicted. If the mother is convicted, the penalty imposed by the law as provided in Article 255 is equivalent to parricide which is reclusion perpetua to death. On the other hand, if the stranger is convicted under Article 255, the penalty to be imposed is equivalent to murder therefore, also reclusion perpetua to death. But note the charge is that he is guilty of infanticide. The fact that the said mother killed the child, less than three days old, in order to conceal dishonorwill mitigate the criminal liability of the mother. NOTE:The penalty will be lowered not by one, but by two degrees, from reclusion perpetua to death, the penalty of the mother will only now become prision mayor.

Q: What if let us say that the killer of the less than three day old child is the maternal grandparents. The grandparents conspired in the killing in order to conceal the dishonor of their daughter. What is the effect of the concealment of the dishonor? A: The concealment of the dishonor will also mitigate the criminal liability of the maternal grandparents that is one degree lower. So sa mother, two degrees lower, from reclusion perpetua to death magigingprision mayor. Sa maternal grandparents one degree lower lang, from reclusion perpetua to death it will now become reclusion temporal. Whatever it is, concealment of dishonor is akin to a privilege mitigating circumstance because the lowering of the penalty is not merely by periods but by degrees. So it is akin to a privilege mitigating circumstance.

Q: So what if in the same problem I gave, the woman gave birth to the child and wanted to kill the child but this time the infant is already three days old and the child was killed by the said mother and the friend. What are the crimes committed? A: The mother is liable for parricidewhile the stranger/friend is liable for murder. And this time no amount of concealment

CRIMINAL LAW 2 of dishonor will mitigate the criminal liability of the mother. So there lies a difference between parricide and infanticide if the offender is the parent or the mother of the child. JUST REMEMBER: If the child is less than three days old or less than 72 hours, IT IS INFANTICIDE. It is the age that controls. If the child is three days old and above, PARRICIDE OR MURDER, as the case may be. It is obvious murder because a three day old child or infant is totally defenseless.

ARTICLE 256, 257, 258 AND 259 ARE ALL ABOUT ABORTION ARTICLE 256 – INTENTIONAL ABORTION ARTICLE 257 – UNINTENTIONAL ABORTION ARTICLE 258 – ABORTION PRACTICED BY THE WOMAN HERSELF OR BY HER PARENTS ARTICLE 259 - ABORTION PRACTICED BY A PHYSICIAN OR MIDWIFE AND DISPENSING OF ABORTIVES

Note that there are four (4) articles on abortion but there are only two (2) type of abortion: 1. INTENTIONAL ABORTION 2. UNINTENTIONAL ABORTION Because the abortion practiced by the woman herself or the mother and the abortion practiced by a physician or midwife are all intentional abortion. So in effect, we only have to kinds of abortion. We have intentional abortion and unintentional abortion. ABORTION – is the willful killing of a fetus from the mother’s womb or the violent expulsion of a fetus from the maternal womb which results in the death of the fetus.

to abort the fetus. So what the boyfriend did was he went to the sidewalks of Quiapo and bought there aborting beverages and he administered the same to the said woman. And the female student drank the aborting beverage and the fetus died. What crime/s is/are committed? A: In so far as the boyfriend is concerned, the crime committed is intentional abortion under Article 256. In so far as the said female student is concerned, the crime committed is also intentional abortion but it is under Article 258 – Abortion practiced by the woman herself or by her parents. So, both of them are liable for intentional abortion.

Q: But what if despite the fact that the female student had already taken or drank the abortive beverage still the fetus survived? Malakasangkapitngbatasa maternal womb. What crime is committed if any by the boyfriend and the girlfriend? Is there a crime such as frustrated intentional abortion? A: YES. There is a crime such as frustrated intentional abortion. Here, the said woman has already taken the said abortive beverage. He has already performed all the acts necessary to consume the crime of abortion however, abortion did not result because of causes independent of their will. Malakasangkapitngbatasa maternal womb and so the baby survived. And so, they are both liable for frustrated intentional abortion.

IS THERE A CRIME SUCH AS FRUSTRATED UNINTENTIONAL ABORTION? NO. This time there is no crime such as frustrated unintentional abortion. Because in unintentional abortion, the intention is against the woman and abortion only happens unintentional.

INTENTION ABORTION is committed in three (3) ways: 1. By using violence upon the person of the pregnant woman resulting to abortion. 2. Without violence, by acting without violence, without the consent of the woman by administering aborting drugs or beverages without the consent of the pregnant woman. 3. By acting without violence, with the consent of the pregnant woman that is by administering aborting drugs or beverages to a pregnant woman this time with her consent.

UNINTENTIONAL ABORTION can only be committed in one (1) way and that is by exerting physical violence on a pregnant woman. And in result thereof, an unintentional abortion was suffered. In unintentional abortion the force employed was physically exerted on a pregnant woman. The intention of the offender is not against the baby or the fetus but against the mother. His intention is against the mother but in so doing, since the mother is pregnant, the baby/fetus was also aborted. So abortion was unintentionally caused.

ILLUSTRATION: Q: So what if there were two college students, a boyfriend and girlfriend. The girlfriend became pregnant and the boyfriend said, ‘I am not yet ready. We are still so young so I cannot marry you.’ And so by reason thereof the girlfriend said, ‘how about my situation? I am already pregnant.’ And so by reason thereof, they both decided in order to conceal the dishonor of the said female student, they both decided


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ILLUSTRATION: Q: So let’s say a man exerted physical violence against the woman who happens to be his enemy. The said woman was severely hurt however, the baby was not hurt. The fetus inside the tummy did not die. What is the crime committed by the said man? A: Only serious physical Injuries against the woman. No crimes against the fetus because there was no intent in so far as the fetus is concerned.

Q: But what if in the said problem, the man inflicted violence on the pregnant woman who happens to be his enemy. Let’s say he kicked and moved the said woman severely and by reason thereof the pregnant woman was 1:44:17. What crime/s is/are committed? A: The crime committed against the woman is serious physical injuries. As against the fetus, the crime committed is unintentional abortion. Now, it resulted from one single act therefore it will result to a complex crime of SERIOUS PHYSICAL INJURIES WITH UNINTENTIONAL ABORTION under ARTICLE 48 OF BOOK 1. It is a complex crime. It is a single act resulting to two less grave felonies.

Q: What if a husband arrived home at 5 o’clock in the morning. He saw his wife looking at the children and is making breakfast. Suddenly the cellphone of the wife rang,

CRIMINAL LAW 2 the pregnant wife answered the cellphone and she began giggling. When she began giggling, the husband took the cellphone from the said wife and listened to the cellphone. He heard a voice of a man on the other line of the cellphone. Since he heard the voice of the man and he just arrived from work, he became jealous and with the use of a knife he stabbed the wife. The wife died and the fetus died. What crime/s is/are committed? A: In so far as the wife is concerned, the crime committed is parricide. In so far as the baby is concerned, the crime committed is unintentional abortion. Again, it resulted from one single act of stabbing the wife therefore it will give rise to a COMPLEX CRIME OF PARRICIDE WITH UNINTENTIONAL ABORTION. There is a crime against the wife which is parricide and against the fetus which is unintentional abortion resulting from a single act therefore, it is parricide with unintentional abortion.

ARTICLE 259 - ABORTION PRACTICED BY A PHYSICIAN OR MIDWIFE AND DISPENSING OF ABORTIVES

UNDER ARTICLE 259, there is another act punished and that is dispensing of abortives. Dispensing of abortives is committed by a pharmacist who shall dispense an abortive without a prescription from a physician. The mere act of dispensing the said abortives without prescription from a physician will hold the said pharmacist criminally liable.

ARTICLE 260 - DUEL ARTICLE 261 – CHALLENGING TO A DUEL What is a duel? A duel is a combat with deadly weapons concerted between two or more persons who have decided or agreed to fight.

ELEMENTS OF A DUEL: 1. It is necessary that the offenders that there was an agreement to engage in combat or in a fight. 2. There must be two or more seconds for each combatant. 3. The firearms or the arms to be used as well as the other terms of the combat must be agreed upon by the said seconds.

Under Article 260 - Duel, there are three acts punished in a duel: 1. By killing one’s adversary in a duel. 2. By inflicting physical injuries upon one’s adversary. 3. By making a combat by merely entering into a duel.

So under Article 260, the persons who are liable are the combatants and adversaries, those who engage in a duel and yungkanilangalalay, yung seconds.

Under Article 261- Challenging to a duel, there are also three acts punished: 1. By challenging another to a duel. 2. By inciting another to give or accept a challenge to a duel.


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3.

By scoffing at or decrying another publicly for having refused to accept a challenge to fight a duel.

Under Article 261, the persons criminally liable are both the challenger and the instigator. NOTE that if it is not a duel or there is no agreement to combat or to fight, let’s say there was no agreement between A and B to fight and yet they fought and B died, the crime committed is HOMICIDE because Article 260 and 261 only applies if there is an agreement to fight, to a duel or a combat.

CRIMES OF PHYSICAL INJURIES: ARTICLE 262 – MUTILATION Mutilation is the clipping off or chopping off of a particular part of a body which is not susceptible to grow again. Two kinds of mutilation: 1. By intentionally depriving another of a part of his body which is an essential part for reproduction. 2. By intentionally committing other mutilation that is, by depriving him of any other part of his body with intent to deprive him of such part of his body.

Under the first kind, that is mutilating an organ essential for reproduction, is otherwise known as CASTRATION. You will know that the penalty is even higher than homicide. Killing a person is only punishable by reclusion perpetua while castrating a person is punishable by reclusion temporal to reclusion perpetua. Because if you are castrated it is as if you are already killed. That’s why it has a higher penalty. Mutilation is a felony which cannot be committed • out of imprudence or negligence. Because the law requires that there must be the deliberate intent to mutilate, the deliberate intent to clip off, to severe a particular part of the body of a person. Absent that deliberate intent, any person who loses a part of his body, it can only be serious physical injuries but not mutilation. So in mutilation it is always committed with deliberate intent or dolo to mutilate. Absent that, it is serious physical injury. ILLUSTRATION Q: Let’s say A and B were engaged in a fight, they were both fighting and A was losing and so he took out his bolo. His intention was to cut the body of B in order to defeat him however, B tried to prevent him and placed his hand and by reason thereof, the right hand of B was severed from his body. Is the crime committed mutilation? A: NO. It is not mutilation because there was no deliberate intent to clip off or to severe the right hand of B. His intention was to attack or to stab B and in so doing, it resulted to the loss of an arm therefore, the CRIME COMMITTED IS SERIOUS PHYSICAL INJURIES. Physical injuries can either be serious physical injuries, less serious physical injuries or slight physical injuries. PHYSICAL INJURIES is the act of wounding, beating or assaulting another with no intent to kill. It also involves the act of knowingly administering injurious beverages or substances absent intent to kill. So always there is no intent to kill in order to amount to physical injuries because

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even if the injury is only slight or no injury at all but if there is intent to kill, it is already in the stage of homicide. So there must be no intent to kill. It also includes the act of knowing administering injurious substances absent intent to kill.

BLINDNESS requires loss of vision of both eyes by reason of the injury inflicted. Mere weakness in vision is not contemplated.

Under the SECOND CATEGORY:

So always, there is no intent to kill in order to amount to physical injuries. Because even if the injury is only SLIGHT or no injury at all, but there is intent7 to kill, it is already in the attempted stage of Homicide. So there must be no intent to kill.

The offender loses the use of speech or the power to heal or to smell, or looses an eye, a hand, a foot, an arm or a leg. So if it is only an eye which has been lost, it is serious physical injury but under the Second Category already. The penalty is lesser than that of the First Category.

ARTICLE 263 –SERIOUS PHYSICAL INJURIES Under Art. 263, the serious physical injuries punished are:

Under the THIRD CIRCUMSTANCE/CATEGORY:  

When the offender becomes DEFORMED.

When the injured person becomes insane, imbecile, impotent, or blind in consequence of the physical injuries inflicted. 2. When the injured person: a. Loses the use of speech or the power to heal or to smell, or looses an eye, a hand, a foot, an arm or a leg; or b. Loses the use of any such member, or c. Becomes incapacitated for the work in which he was therefore habitually engaged in the consequence of the physical injuries inflicted 3. When the injured: a. Becomes deformed b. Loses any other member of his body; or c. Becomes ill or incapacitated for the performance of the work in which he was habitually engaged for more than 90 days, in consequence of the physical injuries inflicted 4. When the injured person becomes ill or incapacitated for labor for more that 30 days (but must not be more than 90 days), as a result of the physical injuries inflicted. Note: All of this, all of the enumeration mentioned in Art. 263 are already considered serious physical injury. If a person becomes ill or incapacitated for more than 30 days, it is already serious physical injuries. It is already divided into categories for purposes of penalty. Because they differ in penalty. But the moment the said person, by reason of the said injury becomes ill or incapacitated for labor for more than 30 days, it is already, serious physical injury. 1.

So the FIRST CATEGORYis, that the injured person becomes INSANE. INSANITY refers to a mental disease by reason thereof a person can no longer appreciate the consequences of his act.

IMBECILITY is when a person is already advanced in age, yet he has only the mind of a 2-7 year old child. IMPOTENCY includes the inability to copulate or sterility.


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So what is this so-called DEFORMITY which will result in serious physical injury? Q: A hacked B with the use of a bolo on his stomach. So there was a big mark on his stomach despite the fact that it was already healed, there was a big scar on the said stomach. The doctor said that the said injury requires medical treatment for 2 weeks. What crime is committed? Is it serious physical injury or is it less serious physical injury?

A: The crime committed is only LESS SERIOUS PHYSICAL INJURY. There was no deformity. Although there was a big scar on the stomach, it would not amount to deformity. An injury in order to amount to deformity which would bring about serious physical injury must result to a physical ugliness on a person. There are 3 requisites befor deformity may be considered as a serious physical injury:

1. 2.

3.

There must be physical ugliness produced on a body of a person The said deformity should be permanent and definite abnormality and it would not heal through the natural healing process The said deformity must be located in a conspicuous and visible place

EXAMPLE OF “The said deformity should be permanent and definite abnormality and it would not heal through the natural healing process”:

A boxed B. He lost his 2 front teeth permanently. What crime was committed?

A: The crime committed was SERIOUS PHYSICAL INJURY. Because it is a deformity even if the doctor says that he can still replace it, the fact still remains that it cannot be healed through a natural healing process.

A boxed B, A lost another tooth. A: The crime committed will LESS SERIOUS OR SLIGHT PHYSICAL INJURIES depending on the

CRIMINAL LAW 2 medical attendance. Because it cannot be seen. It is not located in a visible or conspicuous place.

A poured muriatic acid on the face of another person whom he hates and so because of that, the face of that person becomes deformed, it became ugly. Later, she went on a plastic surgeon. When he got out of the plastic surgery clinic, she now looks like Vilma Santos. Is the accused person liable for serious physical injuries?

A: Yes. Even if she became prettier than before, it is still a fact that by reason of the said injury it cannot be healed through the natural healing process. It will require the attendance of medical surgeon. Therefore, it is considered as a deformity.

If the said physical ugliness is not located on a visible or conspicuous place, it would be depending on the deployment of medical attendance.

Q: When is serious physical injuries qualified?

A: Serious physical injuries is qualified: 1. If it is committed against any of the persons enumerated in Parricide. That is when serious physical injuries is committed against the father, mother, child, whether legitimate or illegitimate; legitimate other ascendant or other descendant and legitimate spouse of the accused. 2. If in the infliction of serious physical injuries, it is attended by any of the qualifying circumstances for murder. That is, if it is done with treachery, evident premeditation, the crime committed is qualified serious physical injuries.

ARTICLE 264 –ADMINISTERING INJURIOUS SUBSTANCE OR BEVERAGES ELEMENTS: 1. The offender inflicted serious physical injuries upon another 2. It was done by knowingly administering to him any injurious substances or beverages or by taking advantage of his weakness of mind or cruelty 3. He had no intent to kill

ARTICLE 265 – LESS SERIOUS PHYSICAL INJURIES LESS SERIOUS PHYSICAL INJURIES is committed if by reason of the injury inflicted, the offended party requires medical attendance or he cannot perform the work with which he is habitually engaged for a period of 10-30 days. So the requirement of medical attendance or his incapacity to do his work for a period of 10-30 days, it will bring about less serious physical injury.

Q: What circumstances will QUALIFY LESS SERIOUS PHYSICAL INJURIES? 1.

When there is manifest intent to insult or offend the injured person


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2. 3.

4.

When there are circumstances adding ignominy to the offense When the victim is the offender’s parents, ascendants, guardians, curators, or teachers When the victim is a person of rank or person in authority, provided the crime is not direct assault

So the crime committed here, with the attendance of these circumstances qualify less serious physical injuries. ARTICLE 266 – SLIGHT PHYSICAL INJURIES AND MALTREATMENT

3 KINDS OF SERIOUS PHYSICAL INJURIES AND MALTREATMENT: 1. Physical injuries which incapacitated the offended party for labor from 1 to 9 days, or required medical attendance during the same period 2. Physical injuries which did not prevent the offended party from engaging in his habitual work or which did not require medical attendance 3. Ill-treatment of another by deed without causing any injury

Maltreatment of another by deed without causing any injury is the act of INFLICTING PAIN ON ANOTHER PERSON WITHOUT CAUSING ANY WOUND OR INJURY.

CASE: PEOPLE VS MAPALO (in Book I) Let us say that A was walking. Here comes B. B used a lead pipe, he went to A and hit the head of A with a lead pipe. Thereafter, he ran away. The medical certificate showed that the head of A did not sustain any injury. He was charged with wttempted homicide. Supreme Court said, the crime committed is ILL-TREATMENT OF ANOTHER BY DEED, a form of slight physical injury under Art. 266.

According to the Supreme Court, there was pain inflicted on A, but there was no injury and there was no intent to kill because the said offender immediately ran away after hitting him a single time. So the crime committed is MALTREATMENT OF ANOTHER PARTY.

ARTICLE 266-A – RAPE RAPE is now a crime against person; it is no longer a crime against chastity. Because of the amendment brought about by RA 8353 – THE ANTI-RAPE LAW.

2 TYPES OF RAPE/HOW RAPE IS COMMITTED: 1. By a man who shall have carnal knowledge of a woman 2. Sexual Assault

There is RAPE BY CARNAL KNOWLEDGE when a man has carnal knowledge of a woman against her will. ELEMENTS OF A RAPE BY A MAN WHO SHALL HAVE CARNAL KNOWLEDGE OF A WOMAN : 1. Offender is a man

CRIMINAL LAW 2 2. 3.

Offender had carnal knowledge of the woman against her will Such act is accomplished under any of the following circumstance: 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 d. When the offended party is under 12 years of age or is demented, even though the circumstances mentioned above be present

FIRST - “OFFENDER IS A MAN” So in rape by carnal knowledge, who is the offender? A MAN. Who is the offendeaprty? A WOMAN. The law is SPECIFIC.

SECOND - “OFFENDER HAD CARNAL KNOWLEDGE OF THE WOMAN AGAINST HER WILL”" The offender has carnal knowledge of a woman against her will and it is committed by using force, threat, or intimidation. When the offended party is deprived of reason or otherwise unconscious.

Q: What if the woman was sleeping when a man had a carnal knowledge of the said woman. Is it rape by carnal knowledge?

A: Yes. The Supreme Court said that the woman who is sleeping is unconscious.

Q: What if the woman is half asleep when the carnal knowledge was done by the said man? Is it still rape? A: Yes, said by the Supreme Court. The woman was unconscious.

THIRD: A is 11 years old. He is cohabiting with a man who is 20 years old. They are luvingtgether as if they are husband and wife. Of course, they had carnal knowledge. The man is liable for STATUTORY RAPE. The number of times that he had carnal knowledge of the said woman, that is the number of the counts of rape. So if he had carnal knowledge of the woman 5 times during the time that they were together – 5 counts of statutory rape. That is because the child, the victim, is below 12 years of age. Insofar as criminal law is concerned, she does not have a mind of her own, she cannot give a valid consent.

Q: What if A and B are lovers and then suddenly B filed a case against A because according to B, he was raped by her boyfriend. In the course of the trial of the case, the defense of the man was the so-called, “sweetheart defense theory.” According to him, “We are sweet lovers.” Therefore according to him, it is impossible for him to have raped her because we are sweet lovers. Will said sweetheart defense theory lie in his favor?

A: Yes. The crime committed is rape. It is INCESTUOUS RAPE. In case of incestuous rape, it is the overpowering and overbearing moral influence or moral ascendency of an ascendant over a descendant which takes place of force,


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A: Supreme Court said, in case of “sweetheart defense theory”, for it to lie, mere oral testimonty will not suffice. There must be documentary evidence, memorabilia, picture, love letters, etc. which would show that indeed they are sweethearts – boyfriend & girlfriend or lovers. But mind you, even the Supreme Court said this, there was not a case wherein the “sweetheart defense theory” has acquitted a man.

Therefore, under any all circumstances which involves the “sweetheart defense theory” will not lie in favor of a man. Because it does not mean that when you are the sweetheart, you can no longer rape the other person.

In Book I, there is no such thing as FRUSTRATED RAPE. Rape admits only 2 stages: ATTEMPTED RAPE and CONSUMMATED RAPE.

The reason is that a mere touch of an erected penis on the labia or lips of a woman’s genitalia will already consummate rape.

It is not necessary that there be deep or complete penetration. It is not necessary that the vagina did lacerated. Mere touch of the lips or the labia of a woman’s genitalia already consummates rape.

Q: What if, what the erectile penis has touched was the outer portion of genitalia, that portion which became hairy during puberty, you have to distinguish whether it is acts of lasciviousness or attempted rape.

A:

CASE: PEOPLE VS JALOSJOS

Q: What if, so the law requires that the said act of carnal knowledge must be with the use of force, threat, or intimidation, a father raped his daughter. The daughter did not put up a fight, the father did not use force, threat, or intimidation in the said carnal knowledge of a daughter. Is the crime committed rape?

threat, or intimidation. That is why in case of inceuous rape, force, threat, or intimidation is not indispensable; it is not necessary. Because it is the overpowering and overbearing moral influence or moral ascendency which a father has over his daughter which takes place of force, threat or intimidation.

If when an erectile penis has touched the outer portion of a woman’s genitalia which becomes hairy during puberty, if the intention of the said offender is to lie, to have carnal knowledge against the said woman, it is attempted rape. But if in doing so, the said man has no intention to lie or to have carnal knowledge, that is only ACTS OF LASCIVIOUSNESS.

What about the other form of Rape – RAPE BY SEXUAL ASSAULT

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ELEMENTS: 1.

2.

Offe nde r com mits a n act o f sex ual ass ault

c t into the geni t a l o r anal orifi c e o f anot her pers on 3.

The act o f sex ual ass ault i s acc omp lish e d und e r any o f the follo win g circ ums tanc es:

The act o f sex ual ass ault i s com mitt e d b y any o f the follo win g mea ns a.

b.


B y inse rting his peni s into anot her pers on’s mou t h o r anal orifi ce, or B y inse rting any instr ume n t o r obje

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a.

b.

B y usin g forc e or inti mid atio n W h e n the w o man i s dep rive d of reas o n o r othe rwis e

CRIMINAL LAW 2 unc ons ciou s, or c.

d.

B y mea n s o f frau dule n t mac hina tion o r grav e abu sed o f auth ority W h e n the w o man i s und e r 1 2 year s of age o r dem ente d

*So what if what has been inserted is the penis inside the mouth or the anal orifice, before that would only amount to acts of lasciviousness - before the passage of RA 8353.

*The law says that it must be an instrument or object which was inserted in the genitalia or in the anal orifice of another person.

Q: What if it was the finger which was inserted in the genitalia of a person? Is it acts of lasciviousness or rape by sexual assault?

A: Supreme Court said it is RAPE BY SEXUAL ASSAULT. According to the Supreme Court, it would be so weird if what has been inserted is an instrument or object, it would be rape by sexual assault, but if it was finger, it would be rape by acts of lasciviousness. The finger is within the mean of an instrument or object insofar as rape by sexual assault is concerned.

Q: In case of RAPE, what are the circumstances which will qualify the penalty?


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A: In case of RAPE BY SEXUAL ASSAULT, the penalty is only PRISION MAYOR. It is a bailable offense. If it is a RAPE BY CARNAL KNOWLEDGE, note that the penalty is RECLUSION PERPETUA. It is a non-bailable offense

Q: In case of a RAPE BY CARNAL KNOWLEDGE, when is a penalty qualified? A: Reclusion Perpetua to Death: 1.

2.

3.

W h e n rap e is com mitt e d with the use of a dea dly wea pon W h e n rap e is com mitt e d b y two o r mor e pers ons W h e n b y reas o n o r o n occ asio n of rap e , the victi m bec ome s insa ne

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par ent, gua rdia n , relat ive b y con san guin i t y o r affin i t y with i n the 3 rd civil deg ree, o r the com mon law spo use o f the victi m

W h e n rap e is atte mpt e d and hom icid e is com mitt ed

Q: What are the instances wherein the penalty to be imposed is the capital punishment of death, so the extreme penalty of death?

1.

2.


W h e n b y reas o n o r o n the occ asio n of rap e , hom icid e is com mitt ed W h e n the victi m is und e r 1 8 year s of age and the o ff e nde r is a par ent, asc end ant, step -

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3.

4.

W h e n the victi m is und e r the cust ody o f the poli c e o r milit ary auth oriti e s o r any pen a l insti tutio n W h e n the

CRIMINAL LAW 2 rap e is com mitt e d i n full vie w of the spo use, the par ent, any o f the chil dre n of the relat ive b y con san guin i t y with i n the 3 rd civil deg ree 5.


W h e n the victi m is a relig ious and gau ged i n legit imat e relig ious calli n g o r voc atio n and h e kno w n t o

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b e suc h by the o ff e nde r befo r e o r duri n g the com mis sion o f the rap e 6.

7.

W h e n the victi m of the rap e is belo w 7 year s of age W h e n the said o ff e nde r kno w s that h e has bee n a ff l i cted with HIV viru s or AID S or any othe r sex uall y tran smi

CRIMINAL LAW 2 ssib l e dise ase and the viru s of the dise ase i s tran smit ted t o the victi m 8.


W h e n the said o ff e nde r is a m e mbe r of the AFP o r parli ame ntar y unit s , the P N P or any othe r m e mbe r of the law enfo rce men t age ncy who took adv anta g e o f his posi

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tion i n ord e r t o facil itate the com mis sion o f the crim e 9.

10.

B y reas o n o r o n the occ asio n of rap e , the said victi m suff ere d per man ent phy sica l muti latio n or disa bilit y W h e n the o ff e nde r kne w that the o ff e nde d part y or victi m is pre

CRIMINAL LAW 2 gna nt at the time o f the com mis sion o f rap e 11.

W h e n the o ff e nde r kne w of the men t a l disa bility , emo tion a l diso rder and/ o r phy sica l han dica p of the o ff e nde d part y at the time o f the com mis sion o f the crim e

The presence of any of these circumstances will bring about the imposition of the maximum penalty of death. However, death is lifted because of RA 9346 which prohibits the imposition of death penalty.

In case of rape, PARDON will not extinguish the criminal liability of the offender. According to Art. 266, pardon will


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not extinguish the criminal liability of the offender. It is only through: 1. The o ff e nde d w o man may par don the o ff e nde r thro ugh a sub seq uent vali d mar riag e , the e ff e ct of whi c h wou l d b e the exti ncti o n o f the o ff e nde r ’ s liabi lity 2. The lega l hus ban d may b e par don e d b y forgi ven ess o f the wife

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prov ided that the mar riag e is not void a b initi o

EXCEPTION: In case of MARITAL RAPE. If the legal wife has forgiven or pardoned the legal husband. Q: When is there PRESUMPTION OF RESISTANCE?

A: If in the course of the commission of rape, the said offended party has performed any acts in any degree amounting to resistance of rape or when the said offended party cannot give a valid consent.

VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT (VAWC) – R.A. 9262

Violence against women and their children - refers to any act or a series of acts committed by

any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. Acts consisting violence against women and children: A. "Physical Violence" refers to acts that include bodily or physical harm; B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or her child. It includes, but is not limited to: a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object, making demeaning and sexually suggestive remarks, physically attacking the sexual parts of the victim's body, forcing her/him to watch obscene publications and indecent shows or forcing the woman or her child to do indecent acts and/or make films thereof, forcing the wife and mistress/lover to live in the conjugal home or sleep together in the same room with the abuser; b) acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of force, physical or other harm or threat of physical or other harm or coercion; c) Prostituting the woman or child.


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C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and mental infidelity. It includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of common children. D. "Economic abuse" refers to acts that make or attempt to make a woman financially dependent which includes, but is not limited to the following: 1. withdrawal of financial support or preventing the victim from engaging in any legitimate profession, occupation, business or activity, except in cases wherein the other spouse/partner objects on valid, serious and moral grounds as defined in Article 73 of the Family Code; 2. deprivation or threat of deprivation of financial resources and the right to the use and enjoyment of the conjugal, community or property owned in common; 3. destroying household property; 4. controlling the victims' own money or properties or solely controlling the conjugal money or properties. Acts of Violence Against Women and Their Children.- The crime of violence against women and their children is committed through any of the following acts: (a) Causing physical harm to the woman or her child; (b) Threatening to cause the woman or her child physical harm; (c) Attempting to cause the woman or her child physical harm; (d) Placing the woman or her child in fear of imminent physical harm; (e) Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child has the right to desist from or desist from conduct which the woman or her child has the right to engage in, or attempting to restrict or restricting the woman's or her child's freedom of movement or conduct by force or threat of force, physical or other harm or threat of physical or other harm, or intimidation directed against the woman or child. This shall include, but not limited to, the following acts committed with the purpose or effect of controlling or restricting the woman's or her child's movement or conduct: (1) Threatening to deprive or actually depriving the woman or her child of custody to her/his family; (2) Depriving or threatening to deprive the woman or her children of financial support legally due her or her family, or deliberately providing the woman's children insufficient financial support; (3) Depriving or threatening to deprive the woman or her child of a legal right;

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(4) Preventing the woman in engaging in any legitimate profession, occupation, business or activity or controlling the victim's own mon4ey or properties, or solely controlling the conjugal or common money, or properties; (f) Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling her actions or decisions; (g) Causing or attempting to cause the woman or her child to engage in any sexual activity which does not constitute rape, by force or threat of force, physical harm, or through intimidation directed against the woman or her child or her/his immediate family; (h) Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to, the following acts: (1) Stalking or following the woman or her child in public or private places; (2) Peering in the window or lingering outside the residence of the woman or her child; (3) Entering or remaining in the dwelling or on the property of the woman or her child against her/his will; (4) Destroying the property and personal belongings or inflicting harm to animals or pets of the woman or her child; and (5) Engaging in any form of harassment or violence; (i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor children of access to the woman's child/children.

DATING RELATIONSHIP- refers to a situation wherein the parties live as husband and wife without the benefit of marriage or are romantically involved over time and on a continuing basis during the course of the relationship. A casual acquaintance or ordinary socialization between two individuals in a business or social context is not a dating relationship.

beats the wife. Will such defense mitigate the criminally guilty husband? Can he use such defense? A: Under Sec. 27 it cannot be used because under Sec. 27; the fact that the husband is under the influence of alcohol, any illicit drug, or any other mind-alteringsubstance cannot be used as defense in VAWC therefore; alcoholism and drug addiction cannot be a defense in VAWC.

Battered Women Syndrome (Sec. 26) Scientifically defined pattern of psychological and behavioral symptoms found in the battering relationship as a result of cumulative abuse. •

•

Under Sec. 26, it is provided that victim survivors founded to be suffering from this battered women syndrome shall be exempted from both criminal and civil liability notwithstanding the absence of any of the elements of self-defense.

The court however shall be held by a testimony of a psychologist or psychiatrist if the woman is indeed suffering from the so called battered women syndrome.

ANTI-HAZING LAW – R.A. 8049 Q: What is hazing? A: Hazing is an initiation rite or practice which is used as an admission into membership in any fraternity or any other organization wherein the said recruit/neophyte/applicant is placed under the an embarrassing or humiliating situations such as forcing him to do menial, silly, and foolish tasks or services or subjecting him into psychological or physical injury or crime.

Q: Is hazing totally prohibited in the Philippines? A: No. Hazing is not totally prohibited in the Philippines. Hazing is allowed provided that the following requisites are present: 1.

Q: The neighbor was aware of the beatings that the husband has been doing to his wife so the neighbor who was a witness to all these beatings filed a case against the husband. Will the case prosper? A: Yes because under sec. 25, Violation Against Women and Children (VAWC) is a public offense. Q: When does the crime prescribe? A: If it involves physical abuse; it shall prescribe after 20 years. If it involves psychological, sexual, and economical abuse; it shall prescribe in 10 years.

Q: Let’s say the wife filed a case against the husband for violation of RA 9262; during the presentation of evidence by the defense, the husband testified that he was always drunk. He was alcoholic. That’s why he lost temper and


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2.

There must be a prior written notice sent to the head of the school authorities or the head of the organization 7 days before the said initiation rites and this prior written notice shall contain the following: a. It shall indicate the date of the said initiation rites which shall not be more than 3 days. b. It shall indicate/state the names of the neophytes or applicants who will undergo the said hazing or initiation rites. c. It shall contain an undertaking which states that there shall be no physical violence employed in any form on these neophyte recruits or applicants.

Upon the receipt of such prior written notice; the head of the school or organization shall assign atleast 2 representatives from their school or

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organization who must be present during the time of the said initiation rite or hazing and these 2 representatives shall see to it that no amount of physical violence shall be employed on any person or any neophyte or recruit or applicant during the said hazing or initiation rite.

Q: What if in the course of the said hazing or initiation rite someone died or suffered physical injuries; who shall be held criminally liable? A: If in the course of hazing or initiation rite, someone died or some suffered any physical injuries; all of the officers and members of the said fraternity or organization who are present and who participated in the said initiation rite shall be liable as principal.

Q: What if the said initiation rite was conducted or held in a house of an Aling Nene? Is Aling Nene criminally liable? A: Aling Nene is liable as an accomplice if she has knowledge of the conduct of the said initiation rites and she did not do any act in order to prevent its occurrence.

If the said initiation rite took place in the house of a member or an officer of the said fraternity or sorority; the parents of the said members or officers shall be held liable not as an accomplice but as a principal if they have such knowledge of the said conduct of the initiation rites and they did not perform any act inorder to prevent its occurrence. Q: When is there a prima facie evidence of participation? A: Any person who is present in the said hazing or initiation rite shall constitute a prima facie evidence that there is a participation and shall be held liable as principal. •

homicide, it shall not be reckless imprudence.

ANTI- CHILD ABUSE ACT – R.A. 7610 In so far as RA 7610 is concerned; Children are those: • •

Q: What if two children, A and B were fighting over a gun toy. The mother of A saw B beating A so A’s mother held B and gave him a tender slap. However, because B is still a child, his face became reddish. Based in the medical certificate, it showed that the said act of slapping was the cause of the injury sustained by B that made his face reddish. What crime was committed by the mother of A? Is the mother liable for Child abuse or is the mother liable for slight physical injuries? A: The mother of A is liable for slight physical injuries only and not for violation of RA 7610.

Q: What do you mean by Child Abuse? A: Child abuse refers to the maltreatment, whether habitual or not, of the child which includes any of the following: • • •

Q: What if in the said hazing an officer beat an applicant and he hit the neck thereby causing the death of the said neophyte/recruit/applicant and so when prosecuted he said: “I have no intention to commit so grave a wrong as that committed”. Can such defense be used so as to mitigate his criminal liability? A: No such defense is prohibited defense. Under RA 8049; the defense that such person has no intention to commit so grave a wrong as that committed cannot be used by an accused under RA 8049. •

•

Whenever a person hits an applicant/ neophyte, he is already performing a felonious act therefore he shall be held criminally liable for all the consequences of his actions. (Art 4 book 1) In the case of Lenny Villa Hazing; Sereno et. al. considered Art. 4 wherein they ruled Reckless Imprudence resulting to homicide. o (I disagree) In Reckless imprudence, the said person must be performing an act which is not felonious but by reason of negligence or imprudence, a felony resulted. Therefore, in the case of Lenny Villa, the ruling shall be


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Below 18 years of age Above 18 years of age who does not have the capacity to fully protect themselves against any abuse, cruelty or maltreatment because of their physical or mental disability.

•

•

Physical or psychological abuse, neglect, cruelty, sexual abuse and emotional maltreatment; Any act by deeds or words which debases, degrades or demean the intrinsic worth and dignity of a child as a human being. Unreasonable deprivation of his basic needs for survival, such as food and shelter; or Failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or death.

Not all acts committed against a child will result to child abuse. It is necessary that in the said act, there was this intention to debase, degrade or demean the intrinsic worth of a child as a human being.

Child Prostitution and Other Sexual Abuse What is child prostitution? Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.

Aggravating Circumstances: (a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following: (1) Acting as a procurer of a child prostitute; (2) Inducing a person to be a client of a child prostitute by means of written or

CRIMINAL LAW 2 oral advertisements or other similar means; (3) Taking advantage of influence or relationship to procure a child as prostitute; (4) Threatening or using violence towards a child to engage him as a prostitute; or (5) Giving monetary consideration goods or other pecuniary benefit to a child with intent to engage such child in prostitution. (b) Those who commit the act of sexual intercourse of lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That when the victims is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; and

(c) Those who derive profit or advantage therefrom, whether as manager or owner of the establishment where the prostitution takes place, or of the sauna, disco, bar, resort, place of entertainment or establishment serving as a cover or which engages in prostitution in addition to the activity for which the license has been issued to said establishment.

When is there attempt to commit child prostitution? 1. when any person who, not being a relative of a child, is found alone with the said child inside the room or cubicle of a house, an inn, hotel, motel, pension house, apartelle or other similar establishments, vessel, vehicle or any other hidden or secluded area under circumstances which would lead a reasonable person to

believe that the child is about to be exploited in prostitution and other sexual abuse. 2. when any person is receiving services from a child in a sauna parlor or bath, massage clinic, health club and other similar establishments. What is Child Trafficking Any person who shall engage in trading and dealing with children including, but not limited to, the act of buying and selling of a child for money, or for any other consideration, or barter Aggravating Circumstance: if the victim is under 12 years of age Attempt to Commit Child Trafficking. – There is an attempt to commit child trafficking under Section 7 of this Act: (a) When a child travels alone to a foreign country without valid reason therefor and without clearance issued by the Department of Social


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Welfare and Development or written permit or justification from the child's parents or legal guardian; (b) when the pregnant mother executes an affidavit of consent for adoption for consideration; (c) When a person, agency, establishment or child-caring institution recruits women or couples to bear children for the purpose of child trafficking; or (d) When a doctor, hospital or clinic official or employee, nurse, midwife, local civil registrar or any other person simulates birth for the purpose of child trafficking; or (e) When a person engages in the act of finding children among low-income families, hospitals, clinics, nurseries, day-care centers, or other childduring institutions who can be offered for the purpose of child trafficking. TITLE NINE CRIMES AGAINST PERSONSAL LIBERTY AND SECURITY (ARTICLES 267 – 292)

ART 267 – KIDNAPPING AND SERIOUS ILLEGAL DETENTION It is committed when: a private individual kidnaps or • detains another or in any other manner to deprive him of his liberty when such detention is illegal and it is committed in any of the following circumstances: 1. If the kidnapping or detention should have lasted for more than 3 days. 2. If it is committed simulating a public authority. 3. If threats to kill had been made upon the person kidnapped or any serious physical injuries are inflicted upon same. 4. If the person kidnapped or detained is a minor, female, or a public officer. •

Any of the circumstances present, then we have serious illegal detention.

Q: Who is the offender in Art 267? A: He must be a private individual because if he is a public officer who has been vested by law to make arrest and he detains a person; it will be arbitrary detention under Art 124. Q: Can a public officer commit kidnapping and serious illegal detention? A: Yes if the said public officer has not been vested by law with the authority to effect arrest and to detain a person then the said public officer is acting in his private capacity. Although a public officer; since he is acting in his private capacity, the crime committed is kidnapping and serious illegal detention under Art 267 and not arbitrary detention under Art 124.

•

The second element requires that the offender kidnaps or detains another or in any other manner depriving him of his liberty.

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•

Q: When is there detention? A: There is detention if the offender restrains a person or the liberty of another person. He must be detained, incarcerated. There must be showing that there is a restraint on his person or liberty; otherwise, if there is no restraint on the person or liberty on the part of the offended party, it could be any other crime but not kidnapping and serious illegal detention. The law requires that the kidnapping and detention must be illegal therefore there must be no reasonable ground.

Circumstances which will make the crime serious: 1.The kidnapping or detention should have lasted for more than 3 days; 2.If it is committed by simulating public authority. 1. By pretending to be police officers, pretending to be NBI agents 3.If any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made. 4.If the person kidnapped or detained is a minor (unless the offender is his parents); a female, or a public officer. •

The presence of any of these circumstances will meet the crime of Serious Illegal Detention and the absence of any of the circumstance will make the crime Slight Illegal Detention under Art 268.

Note that the penalty is reclusion perpetua to death. Circumstances which will qualify the penalty: 1.If the purpose of the kidnapping is to extort ransom from the victim or from any other person. Kidnapping and Serious Illegal Detention • for Ransom.

Q: What is ransom? A: A ransom is the other consideration for the redemption person who has incarcerated.

money, price, or any given or demanded of the liberty of the been detained or

PEOPLE VS. MAMANTAK -While the mother and the daughter where in a food chain in tondo; the mother lost the said child. -she had been looking for the said child for a year. -A year and six months thereafter, the said mother received a call from a woman who sounded to be a masculine man from Lanaodel Norte according to the said woman. -The woman said that she has the child with her and the woman was demanding P 30,000 in exchange for the child. -The said woman, Mamantak and company asked the mother to go to a certain restaurant. -The mother went to the said restaurant however the mother already informed the authorities.


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-Upon the exchange of the child and the demand; Mamantak and co. were arrested by the said authorities. -The crime charged was: Kidnapping and Serious Illegal Detention for Ransom. -RTC ruled that it is only kidnapping and serious illegal detention for ransom but not for ransom because according to the trial court; the amount given is measly a sum to be considered as ransom because according to the RTC; it is only in payment for the board and logging of the child during the time that she was in the captivity of the said woman. -SC ruled that the crime committed is kidnapping and serious illegal detention for ransom. Even if it is only 5 centavos; if it was given in exchange for the liberty of a person who has been detained, by whose liberty has been restricted; it is already considered as ransom. -There is no such thing as small amount in so far as ransom is concerned. Q: Let’s say A is indebted to B; B was asking payment from A, A however said that he has no money until B got fed up so what B did is he kidnapped and detained the minor child of A. He then called A telling the same: “I will only release your minor child the moment you give your indebtedness in the amount of a million pesos”. Is the crime committed kidnapping and serious illegal detention for ransom? A: Yes it is already kidnapping and serious illegal detention for ransom even if the amount being asked by the kidnapper is the indebtedness of the father of the said child. Any amount demanded in exchange for the liberty of the person detained; that is already considered as ransom. 2.When the victim is killed or dies as a consequence of the kidnapping or detention. • Kidnapping and Serious Illegal Detention with Homicide. This is a special complex crime. • Therefore, since it is a special complex crime; regardless of the number of victims killed; it is still kidnapping and serious illegal detention with homicide.

PEOPLE VS. LARANAGA -There were two kidnap victims and these two sisters were both killed and raped yet the SC held that the crime committed was kidnapping and serious illegal detention with homicide and rape. -Despite the fact that there were 2 victims who were killed and raped because regardless of the numbers of the victims killed, since it is a special complex crime; in the eyes of the law there is only one crime committed so it is only: Kidnapping and Serious illegal detention with homicide.

CRIMINAL LAW 2 •

Note however that it is required that the victim himself is the one who has been killed. If it is another person; it will result to a separate and distinct crime because the law is particular that the person detained/ kidnapped must be the one who is killed or died as a consequence thereof.

•

Q: What if A kidnapped the child of B who is his enemy. The said child is 10 years old and he was placed in a hideout. The child tried to escape but A saw him so A fired a shot towards the child which resulted to the death of the child. What crime is committed? A: The crime committed is kidnapping with serious illegal detention with homicide. Q: What if in the same problem; the father learned about the said kidnapping so the father informed the NBI agents. The NBI agents were able to track down the place where the said child was being hidden so the NBI agents together with the said father went to the hideout. There was an exchange of gun fires between A (the kidnapper) and the NBI agents. While there was an exchange of gun fires, the father saw his child so the father rushed towards the son, carry the son and they were able to leave the said hideout. While they were leaving, A the kidnapper saw them and A the kidnapper shot the father. What crime/s is/are committed? A: In so far as the minor is concerned; the crime committed is Kidnapping and serious illegal detention even if it did not last for a period of more than 3 days, the fact that the offended party is a minor, it is already kidnapping and serious illegal detention.

In so far as the father who has been killed; since he is not the victim of serious illegal detention, it will constitute a separate and distinct crime of: homicide.

Therefore, there are 2 crimes committed by the said kidnapper. Kidnapping and serious illegal detention in so far as the child is concerned and homicide in so far as the father who has been killed is concerned. 3.When the victim is raped. • Kidnapping and Serious Illegal Detention with Rape. • •

It is necessary that the victim is the one who has been raped. Again; since this is a special complex crime; regardless of the times that the victim has been raped. The crime committed is only kidnapping and serious illegal detention with rape. There is no kidnapping and serious illegal detention with multiple rape.

4.When the victim is subjected to torture or any dehumanizing acts.


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•

•

The presence of any of these circumstances will bring about the imposition of maximum penalty of death. Q: A, a 6 yr old child is playing at a playground at about 5 o’clock in the afternoon while the mother is hanging clothes. A man (X) gave the child a candy and the child was so happy. Later, the man again approached the child and gave the child money and then the said man invited the child to go with him. Since the child was so happy because the man was so good to her; the child went with the said man. At 6 o’clock; the mother came looking for the child but the child was no longer in the playground. Meanwhile, the man brought the child to his place. That evening, the mother kept on looking for the child however they could not locate the child. In the house of the man, the child was molested and raped twice. The following morning, when the mother opened the door of the house, she saw her child at the door with torn clothes and blood. So the man was charged with serious illegal detention with rape. Is the charge correct? A: The charge is wrong because the obvious intention of the man is to rape the child and not to detain the child therefore the SC said: the crime committed would be 2 counts of statutory rape not only a single indivisible offense of kidnapping and serious illegal detention with rape but 2 counts of statutory rape because the said child is under 12 years of age and she was raped and molested twice. Therefore, unless and until there was an intent to detain on the part of the offender; it could be any other crime but not kidnapping and serious illegal detention. Q: A saw his enemy walking. He abducted his enemy and placed him inside the van. The following morning, the said enemy was found in a vacant lot with 10 gunshot wounds. What crime is committed? A: The crime committed is Murder. Obviously, there was no intent to detain the offended party. The intent was to kill him. Therefore the crime committed is murder and not kidnapping and serious illegal detention with homicide or murder as the case may be. Inorder for kidnapping and serious illegal detention to amount to with rape, murder, with homicide with physical injuries; it is necessary that there is an intent to detain and in the course of the said detention, the victim dies, raped, subjected to torture or other dehumanizing acts. Again, as mentioned earlier; the absence of any of the circumstances which will make illegal detention serious will make the crime Slight Illegal Detention under Art 268.

ART 268 – SLIGHT ILLEGAL DETENTION Slight illegal detention is committed by: any • person who shall kidnap or detains another or in

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any other manner deprive him of his liberty when the said detention is illegal absent of any of the circumstances under Art 267; it will only be slight illegal detention. Q: What if A was so envious of his neighbor. To teach the neighbor a lesson, he kidnapped and detained the said neighbor and placed the said neighbor in a secluded place in a vacant area one morning. However, later on, A felt sorry for his neighbor and he released his neighbor that night. What is the effect in the criminal liability of the offender A? A: Under Art 268 (Slight Illegal Detention); if the offended party has been released. Such release will be considered as a privileged mitigating circumstance because from the penalty of reclusion temporal, the penalty would be lowered by one degree that is prision mayor. Note however that this voluntary release of the victim may only be considered as a privileged mitigating circumstance the ff requisites must concur: 1. It is necessary the release has been made within 3 days from the commencement of the said kidnapping. 2. It must have been made without the offender having attained or accomplished his purpose. 3. It must have been made before the institution of the criminal proceedings against the said offender. •

Q: What if the person kidnapped by A is a public officer? He is mad with the said public officer and so he kidnapped the same and detained him in the morning. In the evening, he immediately released the public officer because he told himself that perhaps the NBI would look after him so he immediately released the public officer. Will such release mitigate his criminal liability? A: No. the fact that the person kidnapped is a public officer; the crime would immediately be kidnapping and serious illegal detention under 267. And if the crime is committed under Art 267, no amount of voluntary release will mitigate the criminal liability of the offender. •

If all of these 3 are present then such voluntary release of the offender will mitigate the criminal liability of the said offender.

ART 269 – UNLAWFUL ARREST Unlawful arrest is committed by: any person who • shall arrest or detain another without authority by


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Q: A was walking when suddenly he was arrested by B, a police officer. The police officer said that a case has to be filed against him. The arrest was made without warrant of arrest. A was not caught committing a crime inflagrante delicto and not also an escapee but he was incarcerated. Thereafter a case has been filed against him however since there was no complainant, the fiscal dismissed the case for lack of probable cause. What crime is committed by the police officer? A: The crime committed is unlawful arrest.

Q: What about the fact that he has been detained arbitrarily? A: It is already absorbed because the intention of the said police officer is to file a case against him that is; to deliver him to the proper authorities. Therefore the arbitrary detention is merely incidental in the said act of unlawful arrest.

ART 270 – KIDNAPPING AND FAILURE TO RETURN A MINOR Kidnapping and failure to return a minor is • committed by: any person who had been entrusted with the custody of a minor who shall deliberately fail to restore the said minor to his parents or guardians.

Q: Who is the offender? A: The offender is the person entrusted with the custody of a minor.

So if the victim is a minor, a female, or a public officer; automatically, it will be kidnapping and serious illegal detention and no amount of voluntary release will mitigate the offender’s criminal liability.

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law or without reasonable ground therefore and his main purpose is to deliver him to the proper authorities. The purpose is: to deliver him to the proper authorities.

Q: When will the crime arise? A: The crime will arise if the offender shall deliberately fail to restore the said minor to his parents or guardians. Q: What if A and B has a child and they entrusted the child to X as they will be going for a vacation for a week. They told X to deliver the child to them after 7 days. A week after, the husband and wife arrived home but X failed to deliver the said child. The reason of X was he was so busy with his work that he forgot that it was already the 7th day from the time that he has been entrusted with the child. Can he be held liable under Art 270? A: No because he did not deliberately fail to restore the said minor to his parents or guardians. The law requires deliberate failure. Here, he only failed because of negligence or just because he was so busy.

ART 271 – INDUCING A MINOR TO ABANDON HIS HOME It is committed by: any person who induces a • minor to leave the home of his parents, guardians,

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or person entrusted with the custody of the said minor. The crime will arise even if the child hasn’t left the house of the parents or guardians. Mere inducement with intent to cause damage will suffice.

Q: A and B husband and wife’s marriage has been declared a nullity by the court and the custody of their 5 yr old child has been given definitely to the mother. However the father has been given visiting rights. One Sunday, the father visited the 5 yr old son and the son was brought out by the father. Usually, whenever the father takes his son out; he will return the child by night time. However this time, the father did not bring back the child to the house of the mother and so the mother demanded the return of her son but the father still failed to return their child therefore the mother filed a case of Kidnapping and failure to return a minor under Art 270 against the father. Will the case prosper?

A: Yes the case will prosper. Under Art 271 it is provided that Art 270 and 271 can also be committed not only by strangers but also by the father or the mother. The only difference is that under Art 270; if the offender is any other person the penalty is reclusion perpetua. But if the offender is the father or the mother, note that the penalty is so low; only arresto mayor or a fine of not more than P300 or both fine and penalty depending upon the discretion of the court therefore, even the father or the mother can be held liable under Articles 270 and 271. The only difference is their respective penalties.

ART 274 – SERVICES RENDERED UNDER COMPULSION IN PAYMENT OF DEBT ELEMENTS: 1. Offender compels a debtor to work for him, either as household servant or farm laborer. 2. It is against the debtor’s will. 3. The purpose is to require or enforce the payment of a debt. •

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2.

•

It is committed by: Any person who shall detain a child in his service against the will of the child


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3.

Failing to render help or assistance to another whom the offender has accidentally wounded or injured. 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: A saw B at Luneta Park. He was wounded and bitten by a dog and he was crying for help. However, A, instead of helping B left. Is A liable under Art 275? A: No because the place is not an uninhabited place. Luneta Park is a public place. People come and go there. Therefore, A is not liable under Art 275 despite the fact that B is wounded and dying.

It is committed by: Any person who shall buy, sells, kidnaps or detains a person for the purpose of enslaving the said person. If the purpose is to engage in immoral traffic; then the penalty will be qualified.

ART 273 – EXPLOITATION OF CHILD LABOR ELEMENTS: 1. Offender retains a minor in his service. 2. It is against the will of the minor. 3. It is under the pretext of reimbursing himself of a debt incurred by an ascendant, guardian or person entrusted with the custody of such minor.

It is committed by: a creditor to shall compel a debtor to work for him as a household servant or a farm laborer against the will of the said debtor inorder to require or enforce the payment of a debt.

ART 275 – ABANDONMENT OF PERSONS IN DANGER AND ABANDONMENT OF ONES OWN VICTIM ACTS PUNISHED: 1. Failing to render assistance to any person whom the offender found 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.

ART 272 – SLAVERY ELEMENTS: 1. The offender purchases, sells, kidnaps or detains a human being. 2. The purpose of the offender is to enslave such human being.

under the pretext of reimbursing a debt incurred by the parents, ascendants, guardian or any person entrusted with the custody of the child.

Uninhabited place One wherein there’s a remote possibility for the victim to receive some help.

Q: What if in the same problem, A found B in a forest? So A went hunting in a forest when he suddenly saw B in the middle of the forest. There was this big trunk of tree on the neck of B and he cannot move. He was begging for the help of A. A however left. Later, B was rescued. Can he file a case in violation of Art 275 against A? A: Yes because B was found by A in an uninhabited place and he was wounded

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and in danger of dying because there’s a big trunk of tree on his neck and there’s no detriment on the part of A to render assistance but he failed to render assistance therefore A may be held liable for violation of Art 275. Q: But what if when A found B and he was bitten by a snake and the snake was still there. B was asking for help however A did not give help because there’s a snake. He’s afraid that he might get bitten by the snake too. Can A be held liable under Art 275? A: No because helping B will be detrimental on his part.

ART 276 – ABANDONING A MINOR ELEMENTS: 1. Offender has the custody of the child. 2. Child is under 7 years of age. 3. He abandons such child. 4. He has no intent to kill the child when the latter is abandoned. •

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Q: What if A was driving his vehicle when suddenly his car tripped on a stone so the stone flew and hit an eye of a bystander. The left eye bled. Is A liable? A: No because it is purely accidental; it is an exempting circumstance. He was performing an act with due care and accident happened without fault or negligence on his part

Q: A woman; an OFW worker who left her newly born child inside a garbage bin of an aircraft/ airplane and later she has been arrested. What crime is committed by the said mother? A: The crime committed is Abandoning a Minor under Art. 276. The mother is in custody of the child and she deliberately or and consciously abandoned her child without the intent to kill. Obviously there was no intent to kill because she could have killed the said child instead she placed her child inside a garbage can in the restroom of an aircraft so there was no intent to kill therefore the crime committed is Abandoning a Minor under Art. 276.

Q: What if when the left eye of the bystander bled; A saw him and he knows that the bystander is his victim. However, instead of bringing the bystander to the hospital; he increased his speed and left. Is A criminally liable this time? A: Yes.

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For the first act he is not liable because it is purely accidental but when he failed to render help or assistance to his own victim. This time, he is criminally liable under Art 275.

Abandoning a minor is committed by any person who has been entrusted with the custody of a child under 7 years of age and he abandons the said child permanently, deliberately, and consciously with no intent to kill the said child. The penalty will be qualified if DEATH resulted from the said abandonment or WHEN THE SAFETY OF THE CHILD HAS BEEN PLACED IN DANGER.

ART 277 – ABANDONMENT OF MINOR BY A PERSON ENTRUSTED WITH HIS CUSTODY; INDIFFERENCE OF PARENTS ACTS PUNISHED: 1. Abandonment of a child by a person entrusted with his custody. 1. It is committed by: any person who, having entrusted with the living and education of a minor shall deliver a minor to a public institution or other persons without the consent of the person who entrusted such minor to the care of the offender or, in his absence, without the consent of the proper authorities. 2.

Indifference of parents 1. It is committed by: any parent who neglects any of his children by not giving them the education which their station in life requires and financial capability permits.

ART 278 – EXPLOITATION OF A CHILD ACTS PUNISHED: 1. Causing any boy or girl under 16 to engage in any dangerous feat of


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3.

4.

5.

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balancing, physical strength or contortion, the offender being any person. Employing children under 16 years of age who are not the children or descendants of the offender in exhibitions of acrobat, gymnast, rope walker, diver, or wild animal tamer, the offender being an acrobat, etc., or circus manager or person engaged in any of said callings. Employing any descendants under 12 years of age in dangerous exhibitions enumerated on the next preceding paragraph, the offender being engaged in any of the said callings. Delivering a child under 16 years of age gratuitously to any person if any of the callings enumerated in paragraph 2, or to any habitual vagrant or beggar, the offender being an ascendant, guardian, teacher, or a person entrusted in any capacity with the care if such child. Including any child under 16 years of age to abandon the home of its ascendants, guardians, curators or teachers to follow any person entrusted in any of the callings mentioned in paragraph 2 or to accompany any habitual vagrant or beggar, the offender being any person.

3.

4.

ART 281 – OTHER FORMS OF TRESSPASS TO DWELLING (TRESSPASS TO PROPERTY) ELEMENTS 1. Offender enters the closed premises or the fenced estate of another. 2. Entrance is made while wither of them is uninhabited. 3. Prohibition to enter is manifest. 4. Trespasser has not secured the permission of the owner or the caretaker thereof. •

These acts are considered as exploitation of minors because these acts endanger the life and safety, the growth and development of the minors. (usually these involves circus)

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Mere act of delivering the child gratuitously under 16 years of age; the crime is already committed. The fact that it is with consideration; the penalty will be qualified.

ART 280 – QUALIFIED TRESSPASS TO DWELLING • It is committed by: a private individual who shall enter the dwelling of another against the will of the latter.

ELEMENTS: 1. Offender is a private individual It is committed by a private individual • because if it is a public officer; then the crime is under Art 128 which is: Violation of Domicile. 2. He enters the dwelling of another 3. Such entrance is against the will of the latter. 1. As discussed under Art. 128; when the law says against the will, there must be a prohibition or opposition from entering whether express or implied. 2.

Mere entry without consent will not bring about QUALIFIED TRESSPASS TO DWELLING.


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Trespass to property is committed by: any person who enters a closed premises or fenced estate which at that time is uninhabited and the prohibition to enter is manifest and the offender enters the said uninhabited place without securing the permission of the owner or the care taker thereof.

Note: If the delivery of the said child is on the basis of a consideration, compensation or money, the penalty will be QUALIFIED.

If the door is opened therefore it means that anyone could enter even without the consent of the owner and the moment he enters he is not liable for qualified trespass to dwelling because there is no prohibition or opposition from entering. It is necessary that there is an opposition or prohibition from entering. It can be expressed prohibition (e.g. A note which states: “Do Not Enter” or the door was closed and a person knocked so the owner got up and opened the door but upon seeing the person he immediately closed the door) or implied prohibition (e.g. Door is closed even if it is not locked).

TRESSPASS TO DWELLING

TRESSPASS TO PROPERTY

Place entered into is a dwelling and uninhabited.

Place entered into is a closed premises or a fenced estate which is uninhabited.

Prohibition to enter can either be expressed or implied.

Prohibition to enter must be manifest.

Entry was made against the will of the owner or the possessor of the said dwelling.

Entry was made without securing the permission from the owner or the care taker of the said property.

Q: Let’s say there are these town houses. In one of the town houses, town house A; there’s no person living at the moment and there was this sign: FOR RENT/ FOR LEASE. X entered the said town house. What crime is committed by X? Is it qualified trespass to dwelling or is it trespass to property? A: It is trespass to property because it is a closed premises which is uninhabited at the time of the entering and he entered

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without first securing the permission of the owner/care taker. Q: What if there is this house which is occupied by husband A and B. Husband A and B went for a vacation for a month. So for a month, there is no person in the said place. X learned that there is no person in the said place. He entered the said place. What crime is committed? Is it qualified trespass to dwelling or trespass to property? A: The crime committed is Qualified Trespass to Dwelling. The said place is a residential place and there is someone who is occupying it even if at the moment it is not people because the said husband A and B are on vacations, it is still considered as an inhabited place. Therefore, the moment anyone enters, the crime committed is trespass to dwelling and not trespass to property.

THREE KINDS OF THREATS: 1. Grave threats 2. Light threats 3. Other light threats

ARTICLE 282 – GRAVE THREATS PUNISHABLE ACTS: 1. Threatening another with the infliction upon his person, honor or property or that of his family of any wrong amounting to a crime and demanding money or imposing any other condition even though not unlawful, and the offender attained his purpose. 2. By making such threat with the infliction upon his person, honor or property or that of his family of any wrong amounting to a crime and demanding money or imposing any other condition even though not unlawful and without the offender attaining his purpose. (Elements for this act are the same with the first except that the purpose is not attained.) 3. By threatening another with the infliction upon his person, honor or infliction upon his person, honor or property or that of his family of any wrong amounting to a crime, the threat not being subject to any demand of money or imposition of any condition.

ARTICLE 283 – LIGHT THREATS Light threats is committed if a person threatens another with the commission of any wrong which does not amount to a crime. But it always subject to a demanded money or the imposition of any other condition even though not unlawful.

Art. 284 – BOND FOR GOOD BEHAVIOR “In all cases falling within the two next preceding articles, the person making the threats may also be required to give bail not to molest the person threatened, or if he shall fail to give such bail, he shall be sentenced to destierro.”

ARTICLE 285 – OTHER LIGHT THREATS


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There are 3 instances or punishable acts under light threats: 1. Threatening another with a weapon or by drawing such weapon in a quarrel, unless it be in lawful self-defense. Here, the weapon must not be discharged. 2. Orally threatening another, in the heat of anger, with some harm constituting a crime, without persisting in the idea involved in his threat. 3. Any threat made in a jest or in the heat of anger constitutes light threat only. 4. Orally threatening to do another any harm not constituting a felony.

So whether it be grave threats, light threats or other light threats, the essence of threats is INTIMIDATION. It is a promise of a future wrong, a promise of a future harm. Not now, but in the future.

So, since it is a promise of a future wrong, threats may be committed either personally or orally or it can also be committed in writing or through an internet chat. If threats are committed through writing or through an internet chat, the penalty is qualified.

Q: What is the difference between grave threats, light threats or other light threats? A: In GRAVE THREATS, the threat will always amount or constitute a crime. It may or may not be subject to a demand money or condition. The offender may or may not attain his purpose. But, in grave threats, the threats will always amount or will always constitute to a crime. On the other hand, in case of LIGHT THREATS, the threat will not constitute to a crime but it is always and always subject to a demand of money or the imposition of any other condition.

So in LIGHT THREATS, the threat threatened to be committed will not amount to a crime, will not constitute to a crime, however it is always subject to a demand of money or the imposition of any other condition, even though not unlawful.

Lastly, in case of OTHER LIGHT THREATS, other light threats can be done by threatening another with a weapon or by drawing such weapon in a quarrel, unless it be in lawful self-defense or it can be done by orally threatening another with a harm amounting to a crime in the heat of anger. So it is necessary that the offender is in the heat of anger or he threatens another with a harm amounting to a crime. But he did not pursue with the idea involved in his threat. And the last one is by orally threatening another which does not constitute a crime.

Q: So what if A went to the store and then from the said store he learned that had been spreading negative rumors against him. And so A was so mad, he was so angry that he went to the house of B and he called on B: “B get out of the house! I will kill you! I will kill you! Get out of the house B!” But B did not get out of the house. Instead, it was the son of B who came out of the house and said: “What do you

CRIMINAL LAW 2 want with my father?” A angrily said that, “You let your father come out or I will kill him because he has been spreading negative rumors about me.” The son went inside the house and did not come back. The father also did not come out of the house. And so later, A just left the house. What crime is committed by A? Is it grave threats, light threats or is it other light threats? A: The crime committed is under Article 285 – OTHER LIGHT THREATS. Orally, in the heat of anger, he threatened another with a harm constituting a crime, but he did not pursue with the idea in his threat. It is only other light threats.

Q: What if, let us say, A saw that B has a new car. It was a luxury car. He knew that it was smuggled and so he told B: “B, if you will not give me P500,000, I will call the Bureau of Customs, I will tell ComissionerBiazon right now that your car is smuggled.” What crime if any is committed by A against B? A: It is LIGHT THREATS. He threatened to commit a wrong which does not constitute a crime. It is not a crime to inform the Bureau of Customs that the car was smuggled and it is subject to a demand of money and the imposition of any other condition even though not unlawful.

Q: What if A, who is the creditor of B, was inside the house of B. He was asking B to pay his indebtedness. B said: “Get out of my house. If I still see you in the afternoon when I get back inside my house and if you are still here, I will kill you.” What crime is committed? A: In this instance where B told A : “Get out of my house. If I still see you in the afternoon when I get back inside my house and if you are still here, I will kill you.” The crime committed is GRAVE THREATS. There is a promise of a future wrong to be committed in the afternoon if A is still there in the house.

Q: What if in the same problem, A was asking B to pay his indebtedness. B said: “Get out of my house! Otherwise, I will kill you.” What crime is committed? A: The crime committed is GRAVE COERCION. The threat is present, direct, personal, immediate and imminent. Not in the future, but now direct, personal and immediate.

So, to amount to preventive coercion, the offender by means of violence prevents someone form doing something which is not prohibited by law.

Q: Therefore, what if, the offender prevents someone form doing something which is prohibited by law? So let us say A, wanted to enter the house of B, against the will of B. X saw A wanting to enter the house of B against the will of B. X prevented A. A in his act of wanting to enter the house of B, is an act prohibited by law, so X prevented A from doing so. However, A still pursued with the act of entering and so what X did in order to prevent him is that X boxed A resulting in his injury of slight physical injuries. What crime is committed by X? A: It is not grave coercion. Because X is preventing A by means of violence and intimidation, not from doing something which is prohibited by law but from doing something which is prohibited by law. Therefore, it is not grave coercion. So what crime is committed? The crime committed is SLIGHT PHYSICAL INJURIES.

Q: What if in case of grave coercion, it is necessary that the offender compels another to do something against his will, regardless of whether it be right or wrong, regardless of whether it is allowed or prohibited by law. The fact is a person cannot put the law in his hands and prevent someone from doing something so long as it is against his will. A: So in case of grave coercion, if the essence of threats is intimidation or a promise of a future wrong, a promise of a future injury, the injury or threat is present, direct, personal, immediate and imminent. It is NOW. That is why, grave coercion cannot be committed in writing or through an internet chatting because it is always personal. Hence, it is about to take place imminent and immediate.

Q: So how would you distinguish threat vs. coercion?

Note that in case of threats made while committing physical injuries, threats are absorbed. ARTICLE 286 – GRAVE COERCIONS 2 way of committing grave coercion: 1. Preventive Coercion 2. Compulsive Coercion

PREVENTIVE COERCION – if a person prevents another, by means of violence, threat or intimidation, from doing something not prohibited by law.

COMPULSIVE COERCION – if a person compels another, by means of violence, threat or intimidation, to do something against his will, whether it be right or wrong, whether it be prohibited or not by law.


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THREAT

COERCION

The wrong threatened to be committed is in the future

The wrong threatened to be committed is direct, personal, immediate and imminent

May be committed in writing or through an internet chatting

Cannot be committed in writing or through internet chatting because it is always personal and immediate

The essence of threat is intimidation

It is violence or intimidation amounting serious enough to amount to violence

ARTICLE 287 – LIGHT COERCION It is committed by a creditor who shall seize anything belonging to his debtor by means of violence or intimidation in order to apply the same to the indebtedness.

CRIMINAL LAW 2 There is one form of light coercion under Article 287, that is UNJUST VEXATION. It is a form of light coercion. UNJUST VEXATION – refers to any human conduct, which although not capable of producing any material harm or injury, annoys, vexes or irritates an innocent person.

Example in Book I: a person walking and hit with a lead pipe on the head. CASE OF BALEROS, JR.: There was a UST medical student. There was a cloth soaked with chemical pressed on her face. So there was this man, she was awakened with a man on top of her placing a cloth soaked with chemical pressed on her face. The charge was attempted rape. Supreme Court said it was just UNJUST V E X AT I O N – nangiinislangdawyunglalakingyun. So, Supreme Court said it is a human conduct which annoys or vexes the said female medical student.

Art. 288 – OTHER SIMILAR COERCIONS; (COMPULSORY PURCHASE OF MERCHANDISE AND PAYMENT OF WAGES BY MEANS OF TOKENS) Other light coercion is committed by forcing or compelling directly or indirectly or knowingly permitting the forcing or compelling any employee or laborer to buy merchandise or commodities from the said employer. And lastly, by paying the wages due to the laborer or employees by any tokens or object other than the legal tender currency of the Philippines unless to be requested by the said employee or laborer.

So it is more on LABOR – other light coercion. Q: What if a person, A threatened to kill B. and so B filed a case of grave threats against A. The case was filed before the court. Upon the filing of the court, what bail, if any, should the court impose on A in order to insure that A will not make good the said threat? A: Under Article 284, we have BOND FOR GOOD BEHAVIOR. Bond for good behavior is a bail which is required by the court to be posted by any accused only in the crimes of grave threats and other light threats. In the crimes of grave threats or other light threats, the court would allow or would require an accused to file or to post a bond for good behavior in order to ensure that he will not make good the said threat. If the said accused failed to pay or post the said bond for good behavior, then the penalty hat would be imposed is destierro in order to ensure that he will not make good the said threat.

REVELATION OF SECRETS: ARTICLE 290 – DISCOVERING SECRETS THROUGH SEIZURE OF CORRESPONDENCE We have seizure of correspondence in order to discover the secrets of another. This is committed by any person who shall seize any correspondence of another in order to discover the secret of any person.


NOTE: In case of seizure of correspondence in order to discover the secrets of another, DAMAGE is not element. Likewise, REVELATION is not an element.

The mere act of seizing the correspondence of another with the intention to discover the secrets, the crime is already consummated. It is not necessary that the secret be revealed, it is not necessary that there be damage on the part of the offended party.

ARTICLE 291 – REVEALING SECRETS WITH THE ABUSE OF OFFICE This is committed by a manager or by an employee or by a servant who reveals the secrets of his principal or master learned by him in such capacity. It is the REVELATION OF SECRETS which will consummate the crime, not merely discovery but revelation of the said secrets. Again, damage is not an element. It is not necessary that the offended party be prejudiced or damaged.

ARTICLE 292 – REVELATION OF INDUSTRIAL SECRETS This is committed by any person in charge, employee or workman of a manufacturing or industrial establishment who shall learn and discover the secrets of the industry and shall reveal the same to the prejudice of the owner thereof. In case of revelation of industrial secrets, mere revelation of those secrets will not suffice. There must be DAMAGE OR PREJUDICE CAUSED TO THE OFFENDED PARTY. The law requires to the prejudice of the owner thereof.

RA 92400 - ANTI-WARTAPPING LAW The following acts are punishable: 1. It shall be unlawful for any person, without securing the consent of all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement to secretly overhear, intercept or record such private communication or spoken word by using a device commonly known as a Dictaphone or dictagraph, walkie talkie, tape recorder, or other similar devices. 2. Knowingly possessing any tape record, wire record, disc record, or any other such record, or copies thereof, of these private communication or spoken word. 3. Replaying these any tape record, wire record, disc record to another person. 4. Communicating the contents of the said tape record, wire record or disc record, in writing or verbally to another person. 5. Furnishing transcriptions of these tape record, wire record or disc record whether totally or partially to any other person.

What is foremost prohibited is the act of tapping, recording or intercepting any private communication or spoken word without the consent of all the parties. Without being authorized by all the parties to the said private communication or spoken word.

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CRIMINAL LAW 2 Q: So what if A told B to come inside his room and when B entered the room, A started scolding B. In scolding B, A said scandalous remarks against B. Unknown to A, B was tape recording the private conversation between them. Can B later use the said tape recording in order to file a case of defamation or slander against A? A: NO. Because the said act of tape recording without being authorized by all the parties to a private communication or spoken word is inadmissible in any judicial, quasi-judicial, legislative or administrative proceedings or investigation.

The ONLY EXCEPTION is when a police officer or peace officer is authorized by written order of the court to listen to, intercept or record any communication in crimes involving treason, espionage, inciting to war or giving motives for reprisals, piracy, mutiny, rebellion, conspiracy and proposal to commit rebellion, sedition, conspiracy to commit sedition and kidnapping. Only in these instances and provided that the said peace officer is authorized by a written order coming from the court may he be allowed to intercept, listen to or record the private communication or spoken word.

TITLE TEN CRIMES AGAINST PROPERTY Art. 293 – Who are guilty of robbery? Robbery is committed by any person, who with intent to gain shall take any personal property belonging to another by means of violence against, or intimidation of any person, or using force upon anything.

Elements of Robbery: 1. That the offender unlawfully takes a personal property 2. That the said personal property belongs to another person 3. There must be intent to gain in the taking of the said property 4. That the said taking is either by means of violence against, or intimidation of any person, or using force upon anything 5. Unlawful taking – is the deprivation of the offended party of his personal property with an element of permanency. So, it is necessary that in taking the personal property from another person, there is an element of permanency.

The law requires that the property must be personal property, not real property because real property is under Article 312 – Occupation of real property. The personal property must belong to another person because if it do not belong to another person it cannot be said that there is intent to gain on the part of the offender. The law requires that there must be intent to gain. Intent to gain is an internal state of mind. So how can you prove intent to gain? The law presumes there is intent to gain the moment there is taking of the personal property of another person. Intent to gain is presumed by law.

Two ways of committing robbery: 1. Robbery with violence against or intimidation (Art. 294)


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Robbery with the use of force upon things (Art. 299) The value of the property taken in robbery with violence against or intimidation against people is immaterial because the penalty is dependent on the violence used by the offender against the offended party. However, in Robbery with the use of force upon things (Art.299), the value of the property taken is material because the penalty is dependent on the value of the property taken. 2.

Art.294 - Robbery with violence against or intimidation of persons The following acts constitute robbery with violence against or intimidation of persons: 1. When by reason or on occasion of the robbery, the crime of homicide is committed. 2. When 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 insanity, imbecility, impotency or blindness is inflicted. 4. When by reason or on occasion of robbery, any of the physical injuries resulting in the loss of the use of speech or the power to hear or to smell, or the loss of an eye, a hand, foot, an arm, or a leg or the loss of the use of any such member or incapacity to go to work in which the injured person is thereto habitually engaged is inflicted. 5. If violence or intimidation employed in the commission of the robbery is carried to a degree clearly unnecessary for the commission of the crime 6. When in the course of its execution, the offender shall have inflicted upon any person not responsible for the commission of the robbery any of the physical injuries in consequence of which the person injured becomes deformed or loses any other member of his body or loses the use thereof or becomes ill or incapacitated for the performance of the work in which he is habitually engaged for more than 90 days or the person injured becomes ill or incapacitated for labor for more than 30 days 7. If violence employed by the offender does not cause any of the serious physical injuries defined in Article 263, or if the offender employs intimidation only.

In other words, we have robbery with homicide, robbery with rape, robbery with intentional mutilation, robbery with arson, robbery with serious physical injuries, robbery with unnecessary violence and lastly, simple robbery.

Robbery with Homicide Robbery with homicide is a special complex crime or a composite crime or a single indivisible offense. In reality two or more crimes have been committed, the robbery and the homicide yet, in the eyes of the law only one crime, a single indivisible offense of robbery with homicide. Q: When should the killing or the homicide take place?

A: In case of robbery with homicide, for as long as the original intent of the offender, for as long original criminal design is to commit robbery or to rob, the killing

CRIMINAL LAW 2 may take place before, during or after the said robbery provided, that the original intent/ original criminal design is to commit robbery or to rob. Since it is a special complex crime, regardless of the number of the persons killed there is only a single indivisible offense of robbery with homicide. Even if the killing is an unintentional killing or accidental killing still, it is a single indivisible offense of robbery with homicide. Even if the victim of the said robbery is different from the victim of the killing, it is still robbery with homicide. There lies the difference between Article 294 and Article 267. In kidnapping and serious illegal detention with homicide, the victim of the kidnapping and serious illegal detention must be the victim in the said killing to amount to kidnapping and serious illegal detention. But in case of robbery with homicide, regardless of who the offended party may be, whether the offended party in robbery is different from the offended party in the killing it is still robbery with homicide.

Q: So let us say, A entered the house of B in order to commit robbery. He took the valuables therein and after taking the jewelries suddenly the box of jewelries fell so X was awaken. When A saw that X was awaken, A shot X. X died. What crime is committed? A: Robbery with homicide. Because by reason or on occasion of robbery, homicide was committed.

Q: What if in the same problem, when X was awaken, the robber, A, shot X. The wife was also awaken and so the wife started shouting so A also shot the wife. The wife also died. What crime/s is committed? A: Two persons are killed still, the crime committed is still a single indivisible offense of robbery with homicide. All the killings are merged into a composite intergraded whole that is a single indivisible offense of robbery with homicide.

Q: What if let us say, in the same problem, so A went to the house of X and took the jewelries. He was on his way out when he bumped the door and so the owner of the house was awaken. So A went down and saw the back of the robber. And so he chased the robber. In the garden, A tried to shoot the owner of the house and so A jumped on him and they struggled for the possession of the gun. In the course of struggle for the possession of the gun, the gun fired hitting a ballot vendor passing by. The ballot vendor died. What crime/s is committed? A: The crime committed is still the single indivisible offense of robber with homicide. Since it is a special complex crime, even if the victim of the robbery is different from the victim of the homicide, it is still robbery with homicide. Even if it is only accidental killing it is still robbery with homicide so long as the killing is by reason or on occasion of the said robbery.

Q: So what if, A, B, and C entered the house of X in order to commit robbery. They have already taken the valuables when the owner of the house was awaken. It was only A who saw the owner of the house was awaken and so A shot X and killed him. Are they all liable for robbery with homicide or only A who shot X? A: All of them are criminally liable for the crime of robbery with homicide. Under Article 8, that in case of an express or direct conspiracy, the conspirators are liable


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only for the crime agreed upon. The crime agreed is to commit robbery but how come all of them are liable for homicide? Because it falls under the exception that when the resulting felony is a special complex crime because you cannot separate or divide a special complex crime. Therefore, even if it was only A who killed the victim, even if their agreement is only to commit robbery, because homicide or the killing was committed by reason or on occasion of the said robbery, all of them are criminally liable for the crime of robbery with homicide. The only exception to the exception is when B and C performed acts in order to prevent A from committing the homicide.

CASE OF PEOPLE vs CABBAB Let us say, A and B versus X, Y and Z. A and B committed robbery and upon leaving the said place, X and Y saw A and B and shot them and made gun fires. Z, a police officer dove into the canal in order to prevent himself from being killed. A and B went directly to X and Y and killed them both. And thereafter, A and B took the winnings. Based on the circumstances or facts the fiscal filed the following cases before the RTC, robbery, double murder, and attempted murder, robbery because of the taking of the winnings, double murder for the death of X and Y and attempted murder as to the police officer who dove into the canal. What is the ruling of the RTC? It said wrong ka fiscal! The crime is robbery with double homicide and attempted murder. Then it went to appeal on the Court of Appeals, sabiniya wrong fiscal! Wrong ka din RTC! The crime committed is robbery with homicide and attempted murder. Then it went up to the Supreme Court. Sc said, malika fiscal! Mali ka RTC! Mali kadn CA! Mali kayo lahat! The only crime committed is the single indivisible crime of robbery with homicide. Because all the acts are considered absorbed in the crime of robbery with homicide despite the fact that two persons were killed, despite the fact that one person was greatly injured, all these circumstances are merged into a composite integrated whole that is single indivisible offense of robbery with homicide.

Robbery with rape Just like robbery with homicide, is also a special complex crime or a single indivisible offense. So, for as long as the intention of the offender is to commit robbery, rape may be committed before, during or after the commission of robbery. Since it is a special complex crime, regardless of the number of times the victim was raped, the crime committed is only robbery with rape. There is no such crime as robbery with multiple rapes. There is only robbery with rape.

Q: So a woman was walking on her way home and because it was pay day here comes X. X dragged the woman in a dark place and took the bag and took the money inside it. And then he found the woman attractive so he raped the woman not once but twice. What crime/s is committed? A: X committed the crime of robbery with rape regardless of the times the woman was raped.

CASE OF PEOPLE vs SUYU Two persons, boyfriend and girlfriend, they were having snack and saw the shadow of 3 men. And these 3 men were pushing the truck trying to open the door. They

CRIMINAL LAW 2 took their valuables and the boyfriend hurriedly left the girlfriend allegedly to ask help to the police. And so the girlfriend was alone with the three men and they dragged her into a nipa hut and there she was raped by the mastermind, Suyu. Not only she was raped by Suyu but also Cainglet while, the other two was outside serving as lookouts. So the said woman, Clarissa, was raped by two persons and she was raped three times. Suyu and Cainglet raped her by carnal knowledge. Not only that, Cainglet also inserted two fingers to her genitals therefore, he also committed rape by sexual assault. What crimes are committed by the 4 persons? What crime/s they should be criminally liable of?

Supreme Court said, they are all liable for the single indivisible offense of Robbery with Rape. Regardless of the fact that two persons raped the victim, regardless of the fact that the victim was raped 3 times, regardless of the fact that there is two nature of rape committed against the victim (rape by carnal knowledge and rape by sexual assault), still the crime committed is the single indivisible offense of robbery with rape.

from his pocket and stab A in his face and placed the ice pick in A’s face. A suffered serious physical injuries and deformity in his face. It caused physical ugliness to A therefore there is deformity. What crime/s is committed?

A: This time the crime committed by B is not the single indivisible crime of robbery with serious physical injuries but two crimes, Robbery and Serious physical injuries under paragraph 3 of Article 263 because of the deformity. Why? Because under paragraph 4 of Article 294, when the serious physical injury that resulted is a deformity or the loss of any of the member of his body, the law requires that the said physical injury or deformity must be inflicted because of the execution of a robbery and to a person not responsible to the commission of the crime of robbery. Here, the deformity was inflicted after the robbery, not before. Not only that. The deformity was inflicted on A, the person responsible for the commission of the robbery.

There are four conspirators but not all of them raped the victim. Yet they are all liable for robbery with rape because the two lookouts did not perform acts in order to prevent the consummation of the said rape. So since it is a special complex crime and a single indivisible offense all the other rapes are merged into a composite integrated whole that is robbery with rape. The same theory applies in case of robbery with intentional mutilation and robbery with arson.

If the serious physical injuries inflicted resulted to a deformity or to a loss of any of the member of his body or loss of the use of any such member or incapacity to go to work in which the injured person is thereto habitually engaged for more than 90 days, under paragraph 3 of Article 263, it is required that in order to amount to a single indivisible offense the said deformity or serious physical injury must be inflicted in the course of the execution of the robbery and to a person not responsible to the commission of the robbery. Otherwise, it will bring about a separate and distinct crime.

Robbery with intentional mutilation, arson and serious physical injuries For as long as the intent or the criminal design of the offender is to commit robbery, the intentional mutilation, arson or serious physical injuries may be committed before, during or after the commission of the said robbery.

Title Nine CRIMES AGAINST PERSONAL LIBERTY AND SECURITY

Q: So let say A and B saw X walking. It was pay day and so A and B announced a holdup. They were both armed with guns and so what X did since they were both armed with guns, he gave the bag. By reason thereof, A and B already left the place. While A and B was waiting for a ride in a waiting shed, A and B divided the things they took from X. So A told B, this is your share. B said, why is my share smaller than your share?! And so B got and he shot A. A died. What is the crime committed? A: The crime committed is robbery with homicide because even if it was also an offender who was killed, the killing took place by reason of the said robbery.

Q: So what if in the same problem, so A and B were already dividing the things they took and B said, wait why is my share so small? B got mad shot A but A did not die. A suffered serious physical injuries. What crime is committed? A: The crime committed is robbery with serious physical injuries.

Q: What if in the same problem, A were dividing the things and B said, why is my share so small compared to your share? B got mad and what he did was took an ice pick


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Chapter One CRIMES AGAINST LIBERTY Section One – Illegal Detention Art. 267. Kidnapping and serious illegal detention. • It is committed when any private individual who kidnaps or detains another, or in any other manner deprive him of his liberty. When such detention is illegal or committed in any of the following circumstances: a. If the kidnapping or detention shall have lasted more than three days; b. If it shall have been committed simulating public authority; c. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if threats to kill him shall have been made; d. If the person kidnapped or detained shall be a minor, female or a public officer. The crime committed is serious illegal

CRIMINAL LAW 2 detention. 1st Element • Who is the offender? He must be a private individual because if he is a public officer vested with the power to effect arrest and detain a person, he will be liable for arbitrary detention under Article 124.

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-The circumstances are the following: a. If the purpose of the kidnapping or detention was to extort ransom from the victim or any other person. Therefore, we

Can a public officer also commit kidnapping and serious illegal detention? Yes. If said public officer has not been vested by law with the authority to effect arrest and detain a person, then said person is acting in his private capacity. Since he is acting in his private capacity then he is liable for kidnapping and serious illegal detention and not under Article 124 which is arbitrary detention. 2nd Element • When is there detention? There is detention if the offender detains the person or liberty of another person. He must be detained or incarcerated, there must be showing that there was restraint in his person or liberty. Otherwise, if there is no restraint in his person or liberty, it could be any other crime but not kidnapping and serious illegal detention. The law requires that detention must be illegal. Therefore, there should be no reasonable ground thereof. •

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qualify the penalty that will make the institution of the maximum penalty of death?

Circumstances that will make the crime serious illegal detention: a. The kidnapping or detention shall have lasted more than three days; b. It shall have been committed simulating public authority; - By pretending to be a public officer, pretending to be NBI agent. c.Any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if threats to kill him shall have been made; d.The person kidnapped or detained shall be a minor, female or public officer.

The presence of any of these circumstances will make the crime serious illegal detention and the absence of any of these circumstances will make the crime slight illegal detention under Article 268.

Note that the penalty is reclusion perpetua to death. What then are the circumstances that will


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b.

c.

d.

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have kidnapping and serious illegal detention with ransom. If the person kidnapped or detained died or is killed as a consequence of kidnapping and serious illegal detention, we have kidnapping and serious illegal detention with homicide. If the person kidnapped or detained is raped, we have kidnapping and serious illegal detention with rape. If person kidnapped or detained is subjected to torture or other dehumanizing acts.

Kidnapping and Serious Illegal Detention with Ransom - Ransom - Any money, price or consideration given or demanded as a redemption for the liberty of the person detained. Any money, price or consideration which is given in exchange for the liberty of the person detained or incarcerated is considered ransom. -People vs. Mamantak While the mother and her daughter were in a food chain in Tondo, the mother lost her daughter. She searched for her daughter over a year. A year and 6 months thereafter, she received a phone call from a Muslim woman claiming that she has her daughter and she was demanding P30,000 in exchange of her child. The woman instructed the mother to go to a restaurant, where the exchange will take place. However, the mother already reported the call to the police. When they were in the restaurant and while the exchange was taking place, the police apprehended Mamantak. The crime charged was kidnapping and serious illegal detention with ransom. The RTC convicted the accused, however for kidnapping and serious illegal detention but not for ransom. According to the RTC, the amount given, 30 thousand pesos, is such a small amount to be considered ransom. According to the RTC it is merely a payment for the board and lodging of the child during

CRIMINAL LAW 2 the child was held by Mamantak. -SC: The crime committed is kidnapping and serious illegal detention with ransom. Kahit 5 pesos pa yan if it was given or demanded as a redemption for the liberty of the person detained it is already considered as ransom. There is no such thing as small amount in so far as ransom is concerned.

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But what if in the same problem, the father told the NBI agents about the kidnapping. The agents were ale to track down than place where the child was being kept. They went over the hide out and exchange of gunfire took place. The father saw that his child and took him away. While they were escaping the kidnapper saw them and shot the father. What crime or crimes was or were committed? -In so far as the minor is concerned, the crime committed is kidnapping and serious illegal detention. Even if it has not lasted for a period of more than three day, the fact that the victim is a minor, the crime committed is kidnapping and serious illegal detention. -In so far as the father is concerned, since he is not the victim of the crime of kidnapping, a separate crime of homicide should be filed. -Therefore, there are 2 crimes committed by said kidnapper: kidnapping and serious illegal detention, in so far as the minor is concerned and homicide in so far as the father is concerned.

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NOTE: The same is true for kidnapping and serious illegal detention with rape. It is necessary that the victim is the one raped and since it is again a special complex crime regardless of the number of times that the victim was raped the crime committed is only kidnapping and serious illegal detention with rape. There is no such crime as kidnapping and serious illegal detention with multiple rapes. Only kidnapping and serious illegal detention with rape and so with kidnapping and serious illegal detention with physical injuries which is also a special complex crime.

Example • A was indebted to B. B was asking for the payment, however A failed to pay. B got fed up therefore he kidnapped the minor child of A. B called A telling him that he would only release his child if he pays his indebtedness of half a million. Is the crime of kidnapping and serious illegal detention with ransom committed? -Yes, it is already kidnapping and serious illegal detention with ransom even if the amount being asked by the kidnapper is the indebtedness of the father of the kidnapped child. So any amount given or demanded for the release of the person detained, that is already considered ransom.

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Kidnapping and Serious Illegal Detention with Homicide -It is a special complex crime. Therefore, since it is a special complex crime, regardless of the number of the victims, it is still kidnapping and serious illegal detention with murder or homicide.

-People vs. Laranaga - There were 2 kidnapped victims. They were sisters kidnapped and raped, thereafter killed. SC held that even though there were 2 victims the crime committed is kidnapping and serious illegal detention with homicide.

- NOTE: It is the victim himself or herself who died. If it is another person, it is another separate and distinct crime because the law is particular that the victim himself is the one that is killed or dies as consequence thereof.

Example: • A kidnapped the child of B who is his enemy. Child is 10 years old. While being held, the child tried to escape. A caught the child trying to escape. He shot the child. What was the crime committed? -The crime committed was kidnapping and serious illegal detention with homicide


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Example: • A, is a 6 year old child, while playing in the playground was approached by X and gave her candy. Meanwhile, the mother was busy hanging their clothes. After a while, X came back and this time gave the child money. The child was so happy and easily persuaded to go with X. The mother searched for her daughter but she was nowhere to be found. X brought the child in his house and molested her twice. The following day, the mother found her child in their house with torn and blooded clothes. The crime charged was kidnapping and serious illegal detention with rape. Is the crime charged proper? -No, the charge is wrong because the obvious intention is to rape the child and not to detain her. SC held that the man is guilty of 2 counts

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of statutory rape because the child is below 12 years of age and she was molested twice. Therefore, unless and until there was an intention to detain the child on the part of the offender, it could be any other crime but not kidnapping and serious illegal detention. •

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A saw his enemy walking. He abducted his enemy and placed him in a vacant lot. The following morning, his enemy was found in a vacant lot dead with 10 gun shot wounds. The crime committed is murder. Obviously there was no intent to detain the said offended party. The intent was to kill him. Therefore, the proper charge is murder and not kidnapping and serious illegal detention with murder or homicide as the case maybe. In order to amount to kidnapping and serious illegal detention with homicide or murder or physical injuries, it is necessary that there must be intent to detain and in the course of such detention the victim is killed or raped or subjected to torture or other dehumanizing acts.

If any of the circumstances is absent it will only be slight illegal detention under article 268.

Art. 268. Slight illegal detention. Elements: 1. Offender is a private individual 2. He kidnaps or detains another, or in any other manner deprive him of his liberty 3. The act of kidnapping or detention is illegal 4. Committed absent any of the circumstances under Art. 267 Example • A, was envious of his neighbor. He kidnapped said neighbor in the morning and placed him in a secluded place. A realized that he might be imprisoned, so he decided to release his neighbor in the evening. What is the effect if such release to the criminal liability of A? -Under Article 268, slight illegal detention, it is provided that if the victim is released, such release shall be considered as a privilege mitigating circumstance because from the penalty of reclusion temporal, the penalty will be lowered by one degree which is prision mayor. However, in order that this voluntary release maybe considered a privilege mitigating circumstance these are the requisites: a. The release must be within three days from the commencement of the detention;


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b. It must be made without having attained the purpose intended; c. It must be made before the institution of criminal proceedings against him. -If all these are present, then such voluntary release of the offender will mitigate the criminal liability of said offender. •

A kidnapped a public officer in the morning. In the evening he released the said public officer. Will such release mitigate the criminal liability of A? -No. Because the fact that the person kidnapped is a public officer the crime committed is already kidnapping and serious illegal detention under Article 267. If the crime committed is Article 267, no amount of voluntary release will mitigate the criminal liability of the offender.

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NOTE: If the victim is a minor, female, public officer automatically the crime committed is a kidnapping and serious illegal detention under Article 267 and no amount of voluntary release will mitigate the criminal liability of the offender.

Art. 269. Unlawful arrest. Elements: 1. Offender arrests or detains another person 2. The purpose of the offender 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. Example: • A was walking when he was arrested by B a police officer. The arrest was without warrant but the same was not executed under any of the circumstances for a valid warrantless arrest. Because there were no complainants and evidence presented, the fiscal dismissed the case. What is the proper crime to be charged? -The public officer is guilty of unlawful arrest. The fact that he has been detained is already absorbed because the intention of the said public officer is to file a case against him, that is, to deliver him to the proper authorities. Therefore the arbitrary detention is absorbed in unlawful arrest.

Section Two – Kidnapping of minors

Art. 270. Kidnapping and failure to return a minor Elements: 1. Offender is any person entrusted with the custody

CRIMINAL LAW 2 2.

of a minor He deliberately fails to restore the minor to his parents or guardians or any person charged with the custody of the minor

Example • A and B has a child who was entrusted to X because they were going on vacation for a week. They instructed X to return the child after 7 days. When they came back home X failed to return the child. X was so busy and she forgot to return the child. Can X be charged with kidnapping under Article 270? -No because he did not deliberately fail to restore the child to his parents or guardian. The law requires deliberately. Here he failed to return the child because of his negligence. He was so busy.

Art. 271. Inducing a minor to abandon his home Elements: 1. That a minor is living in the home of his parents or guardian or the person entrusted with his custody 2. The offender induces said minor to abandon such home

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It is committed by any person who shall induce a minor to abandon the home of his parent or guardians or the persons entrusted with his custody.

The crime will arise even if the child has not left the house of his parents or guardian. Mere inducement with intent to cause damage will suffice.

Example • A and B, husband and wife, whose marriage has been declared a nullity by the court. The custody of their child who is 5 years of age is given to the mother as provided by law. The father was granted visitation rights. One Sunday the father visited the 5 years old son and he brought him out. Usually, he would return the child by nighttime. However, the father did not bring back the child to his mother’s house. The mother demanded the return of the child but the father still failed to return the child. Therefore the mother filed a case of kidnapping under article 270 against the father. Will the case prosper? - Yes the case will prosper. Under article 271 it is provided that the father or the mother of the minor may commit any of the crimes covered by the two preceding articles. The only difference is that in case kidnapping and failure to return a minor under Art. 270, the penalty of reclusion perpetua


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shall be imposed upon any other person but if it shall be the father or the mother of the minor, the penalty shall be arresto mayor or a fine or both under the discretion of the court. Therefore, even the mother or the father can be criminally liable under articles 270 and 271. The only difference is in the penalty

Section Three – Slavery and Servitude

Art. 272. Slavery Elements: 1. Offender is any person who shall purchase, sell, kidnap or detain a human being 2. The purpose is to enslave the human being

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If the purpose is to engage in some immoral traffic, the penalty shall be qualified.

Art. 273. Exploitation of child labor Elements: 1. Offender is any person who retains a minor in his service 2. It is against the will of the minor 3. It is under the pretext of reimbursing himself of a debt incurred by an ascendant, guardian or person entrusted with the custody of a minor

Art. 274. Services rendered under compulsion in payment of debt Elements: 1. Offender is a creditor who compels a debtor to work for him, either as household or farm laborer 2. It is against the debtor’s will 3. The purpose is to require or enforce the payment of a debt

Chapter Two CRIMES AGAINST SECURITY

Section One – Abandonment of helpless persons and Exploitation of minors

Art. 275. Abandonment of person in danger and abandonment of one's own victim • 3 acts punished:

1.Any one who shall fail to render assistance to any person whom he shall find 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;

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Elements: 1. The place is not inhabited 2. The accused found there is a person wounded or in danger of dying 3. The accused can render assistance w/out detriment to himself 4. T h e a c c u s e d f a i l s t o r e n d e r assistance

2.Anyone who shall fail to help or render assistance to another whom he has accidentally wounded or injured;

3.Anyone who, having found an abandoned child under seven years of age, shall fail to deliver said child to the authorities or to his family, or shall fail to take him to a safe place.

Example • A saw B at Luneta Park. He was wounded, he was bitten by a dog. He was crying for help, instead of helping B, A took off. Is he liable under Article 275? -No because Luneta park is not an uninhabited place. Uninhabited place is one where there is remote possibility for the victim to receive some help. Luneta Park is a public place. Therefore, A cannot be held liable under Article 275.

• 2nd Act Example • A was driving his car when suddenly it tripped over a stone. The stone flew, hitting the left eye of a bystander. Is A liable? -No because it was purely accidental. It is an exempting circumstance. he was performing a lawful act with due care. An incident happened without fault or accident on his part.

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But what if A found B. B was bitten by a snake and it was still there. B was asking for help but A did not help him because he was afraid that the snake too might bite him. Can A be held liable under Article 275? -No, because helping B would be detrimental on his part.


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However, when the left eye of the bystander bled, he saw it, instead of bringing the person to the hospital, he sped up. Is A criminally liable? -Yes, A is criminally liable. When he failed to render assistance to his victim, he is criminally liable under Article 275.

Art. 276. Abandoning a minor Elements: 1. Offender is any person who has custody of a child 2. The child is under 7 years of age 3. That he permanently, deliberately and consciously abandons such child 4. That he has no intent to kill the child when the latter is abandoned

• 1st Act Example • A was hunting in the forest. He found B in the middle of the forest. There was a big trunk of a tree in his neck; thus, B cannot move. He was begging for help. A however just left. B thereafter was rescued. Can A be held liable under Article 275? -Yes because A found B in an uninhabited place, the forest. He was wounded, he was in danger of dying because there was a big trunk in his neck. There was no detriment on the part of A if he renders assistance but he failed to render the same. Therefore he is liable under Article 275.

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Penalty will be qualified if – a.death of the minor shall result by reason of such abandonment or b.the safety of the child has been placed in danger.

Art. 277. Abandonment of minor by person entrusted with his custody; indifference of parents • 2 acts punished:

1.Abandonment of a child by a person entrusted with the custody Elements: 1. The offender is any person who has charge of the rearing or education of a minor 2. The he deliver said minor to a public institution or other persons 3. That it is without the consent of the one who entrusted such child to his care or in the absence of the latter, without the consent of the proper authorities

2.Indifference of Parents Elements: 1. The offender is a parent

CRIMINAL LAW 2 2. The he neglects his children by not giving them the education 3. That his station in life requires such education and financial conditions permits it

beggar. •

Art. 278. Exploitation of minors. • The following are the acts punished:

1. Any person who shall cause any boy girl under sixteen years of age perform any dangerous feat balancing, physical strength, contortion;

or to of or

Art. 279. Additional penalties for other offenses. — The imposition of the penalties prescribed 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 this Code.

2. Any person who, being an acrobat, gymnast, rope-walker, diver, wild-animal tamer or circus manager or engaged in a similar calling, shall employ in exhibitions of these kinds children under sixteen years of age who are not his children or descendants;

In either case, the guardian or curator convicted shall also be removed from office as guardian or curator; and in the case of the parents of the child, they may be deprived, temporarily or perpetually, in the discretion of the court, of their parental authority;


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4. Any ascendant, guardian, teacher or person entrusted in any capacity with the care of a child under sixteen years of age, who shall deliver such child gratuitously to any person following any of the callings enumerated in paragraph 2 hereof, or to any habitual vagrant or beggar.

Section Two – Trespass to dwelling

Art. 280. Qualified trespass to dwelling Elements: 1. Offender is a private person 2. He enters the dwelling of another 3. That such entrance is against the latter’s will

3. Any person engaged in any of the callings enumerated in the next paragraph preceding who shall employ any descendant of his under twelve years of age in such dangerous exhibitions;

5. Any person who shall induce any child under sixteen years of age to abandon the home of its ascendants, guardians, curators, or teachers to follow any person engaged in any of the callings mentioned in paragraph 2 hereof, or to accompany any habitual vagrant or

These acts are considered exploitation of minors because these acts endanger the life and safety, the growth and development of said minors. This usually involves circus.

Trespass to Dwelling or Qualified Trespass to Dwelling is committed by any private person who shall enter the dwelling of another against the latter's will

It is committed by a private person because if it is public officer the crime committed is under Art. 128 which is Violation of Domicile. Under Art. 128, when the law says “against the will”, it means that there is some prohibition, there is opposition of entering whether express or implied. Mere entry without the consent of the owner will not bring about qualified trespass to dwelling. If the door is open it means that anybody can enter even without the consent of the owner. The moment he enters he cannot be held liable with qualified trespass because there is no prohibition or opposition to enter. It is necessary that there must be prohibition or opposition from entering. It can be express an express prohibition such as, when there is a note stating “ DO NOT ENTER” or when the door is closed after a person knocks when the owner sees the person knocking. It is implied if the door is closed even if it is not locked.

CRIMINAL LAW 2 Art. 281. Other forms of trespass. — The penalty of arresto menor or a fine not exceeding 200 pesos, or both, shall be imposed upon any person who shall enter the closed premises or the fenced estate of another, while either or them are uninhabited, if the prohibition to enter be manifest and the trespasser has not secured the permission of the owner or the caretaker thereof. •

•

Trespass to Property Elements: 1.Offender is any person who shall enter the closed premises or the fenced estate of another person 2.The entrance is made while either of them is uninhabited 3.That the prohibition to enter be manifest 4.That the trespasser has not secured the permission of the owner or the caretaker thereof

place and someone is occupying it even if at the moment it is uninhabited because the owners went on vacation. It is considered an inhabited place therefore the moment someone enters, it is considered trespass to dwelling and not trespass to property.

Section Three – Threats and coercion

3 kinds of threats: 1. Grave threats 2. Light threats 3. Other light threats

Art. 282. Grave threats Acts punished:

1.

Trespass to Dwelling vs. Trespass to Property

Trespass to Dwelling

2.

Trespass to Property

Place is a dwelling and P l a c e i s a c l o s e d inhabited premise or the fenced estate of another which is unihabited

Prohibition to enter can Prohibition to enter either be express or must be manifest implied Entry was made against E n t r y w a s m a d e the will of the owner/ without seeking the possessor of property permission of the owner/caretaker thereof

Example • Townhouse A was currently uninhabited. There was a notice posted that it was for rent. X entered the said townhouse. What crime was committed by A? -Trespass to Property because at that time the premises was closed and uninhabited and he enters without securing the permission of the owner or the caretaker.

• A and B, husband and wife, went on vacation for a month. Their house was therefore uninhabited. X learned that there was no one inside the house. he entered the house. what crime was committed? Is it Trespass to Property or Qualified Trespass to Dwelling? -Qualified Trespass to Dwelling. It is a residential


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3.

Threaten another with the infliction upon the person, honor or property of the latter or of his family of any wrong amounting to a crime coupled with a demand of money or imposition of any other condition, even though not unlawful, and said offender attained his purpose

Threaten another with the infliction upon the person, honor or property of the latter or of his family of any wrong amounting to a crime coupled with the demand of money of money or imposition any other condition, even though not unlawful, and said offender did not attain his purpose Threaten another with the infliction upon the person, honor or property of the latter or of his family of any wrong amounting to a crime without the demand of money or imposition of any other condition

Art. 283. Light threats Light threats: - Any threat to commit a wrong not constituting a crime, but it is always subject to a demand of money or imposition of any other condition, even though not unlawful

Art. 284. Bond for good behavior Example: • A threatened to kill B. B filed a case of grave threats against A. Upon filing of the case, what bail if any should the court impose upon A? ANS: BOND FOR GOOD BEHAVIOR - is a bail required by the court to be posted by any accused only in the crimes of grave threats and other light threats. This is to ensure that the offender will not make good the threat imposed by him. Failure to

CRIMINAL LAW 2 post the bond, the offender shall be sentenced to destierro.

Art. 285. Other light threats Acts punished:

1.

2.

3.

Threatening another with a weapon or draw such weapon in a quarrel, unless it be in lawful selfdefense

Example: • A learned that B was spreading negative rumors against him. A was so mad so he went to the house of B and shouted, “B get out of your house. I will kill you! I will kill you!” But B did not go out of the house. Instead, it was the son of B who went out. A told the son to let his father go out because A would kill him. Upon hearing this, the son went inside the house and did not go back. B as well did not go out. Later, A left B’s house.

Orally threatening, in the heat of anger, another with some harm not constituting a crime, and who by subsequent acts show that he did not persist in the idea involved in his threat Orally threatening to do another any harm not constituting a felony

• Whether it be grave, light or other light threats, the

• A saw that B has a new Lexus. A knew that the car was smuggled. A told B. “If you will not give me 500,000php, I will tell the Bureau of Customs that your car is smuggled.”

essence of the threats is intimidation - the promise of a future wrong or harm.

• Threats can be committed personally, orally, in writing or through an intermediary. If committed in writing or through an intermediary, the penalty is qualified.

DISTINCTION: GRAVE, LIGHT, OTHER LIGHT THREATS GRAVE THREATS

LIGHT THREATS

OTHER LIGHT THREATS

The threat is always & a l w a y s amounting to and constituting a crime. It may or may not be subject to demand of money or imposition of o t h e r conditions. The offender may or may not attain his purpose.

The threat does not amount to a crime. It is always and always subject to a demand of money or the imposition of any other condition, even though not unlawful.

Committed by threatening another with a weapon or draw such weapon in a quarrel, unless it be in lawful selfdefense; or orally threatening, in the h e a t o f a n g e r, another with some harm not constituting a crime, and who by subsequent acts show that he did not persist in the idea involved in his threat; or orally threatening to do any harm not constituting a felony.


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CRIME: A committed other light threats. A, in the heat of anger, orally threatened B with a wrong constituting a crime but he did not pursue the idea.

CRIME: Light threats. A threatened to commit a wrong not constituting a crime. It is not a crime to tell Customs that the car was smuggled. The threat is subject to a demand of money or the imposition of any other condition, even though not unlawful.

• A, creditor of B, was inside the house of the latter seeking for payment of debt. B said, “get out of my house. If I still see you later afternoon in my house when I come back, I will kill you!”

CRIME: B committed Grave threats because there is a promise of a future wrong of killing to be committed in the afternoon.

• A, creditor of B, was inside the house of the latter seeking for payment of debt. B said, “get out of my house right now or else I will kill you!”

CRIME: B committed Grave coercion. The threat is present, direct, personal, immediate and imminent. It is not in the future.

Art. 286. Grave coercions 2 ways to commit grave coercion: 1. PREVENTIVE COERCION if a person prevents another by means of violence or intimidation from doing something not prohibited by law. Example: • A wanted to enter the house of B against the latter’s will. X saw A, so he prevented A. Nevertheless, A continued

CRIMINAL LAW 2

to enter. Because of this, X boxed A resulting to slight physical injuries. CRIME: Slight physical injuries because X prevents a person from doing something prohibited by law. In grave coercion, the offender prevents someone to do something not prohibited by law. 2.

COMPULSORY COERCION if a person compels another by means of violence and intimidation from doing something against his will, whether it be right or wrong, prohibited or not. -

Unlike in threats where the essence of the threats is the promise to do a future wrong or injury; in coercion, the threat is present, direct, personal and imminent. Hence, grave coercion cannot be committed through an intermediary or in writing because the threat is always personal, present and imminent. The threatened act is about to be committed.

DISTINCTION: THREAT AND COERCION THREAT

COERCION

the wrong threatened to be the wrong threatened to be committed is in the future committed is direct, personal, present and imminent threats may be committed t h r e a t s c a n n o t b e in writing or through an committed in writing or intermediary through an intermediary because they should always be personal and direct threat means intimidation

it is violence; or intimidation sufficient enough to amount to violence

Art. 288. Other similar coercions OTHER LIGHT COERCION - more on labor Acts punished:

1.

Committed by forcing or compelling directly, indirectly, knowingly permitting or forcing an employee or laborer to buy merchandise or commodities from the employer

2.

By paying the wages due to the employees or laborers by objects other than the legal tender of the Philippines, unless it is requested by the employee or laborer

Chapter Three DISCOVERY AND REVELATION OF SECRETS

Art. 290. Discovering secrets through seizure of correspondence SEIZURE OF CORRESPONDENCE to discover the secrets of another - committed by any person who shall seize any correspondence of another to discover the secrets of the latter. DAMAGE is not a requirement. The mere act of seizing the correspondence to discover the latter’s secrets will consummate the crime. It is also NOT necessary that the secret be REVEALED.

Art. 291. Revealing secrets with abuse of office REVEALING SECRETS BY ABUSING OFFICE - committed by a manager, employee or servant who reveals the secrets of his master learned by him in such capacity. It is the revelation of secrets which will consummate the crime, not mere discovery. DAMAGE is also not an element.

Art. 287. Light coercions LIGHT COERCION - committed by a creditor who shall seize anything belonging to his debtor by means of violence or intimidation for the purpose of applying the same to the indebtedness

Art. 292. Revelation of industrial secrets REVELATION OF INUSTRIAL SECRETS - committed by any person in charge or an employee in an industrial of manufacturing establishment who shall learn and discover the secrets of the industry and shall reveal the same to the prejudice of the owner thereof. DAMAGE must be caused to the offended party. Mere revelation of secrets will not suffice.

related to light coercion is UNJUST VEXATION which refers to any human conduct, although not capable of producing any harm or material injury, annoys or vexes an innocent person.

In relation to – RA 4200 (ANTI-WIRE TAPPING LAW) ACTS: 1. It shall be unlawful for any person, not obtaining the consent of all the parties to any private

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CRIMINAL LAW 2 communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device like dictaphone or dictagraph or dictaphone or walkie-talkie or tape recorder, or other similar means

by means of violence or intimidation of any person, or using force upon anything

Elements: 1.

Exapmle: • A told B to go inside his room. When inside the room, A started scolding B saying slanderous remarks against him. Unknown to A, B was recording the private communication between them. Can B use the record in filing a case for slander against A? ANS: No, because the act of tape recording without being authorized by all the parties in a private communication is inadmissible in evidence in any judicial, quasi-judicial, legislative or administrative proceeding or investigation.

2.

3.

4.

The only exception is when a police officer is authorized by a written order of the court to listen to, intercept or record any communication in crimes involving treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition and kidnapping.

2.

Knowingly possessing any tape record, wire record, disc record, or any other such record, or copies thereof, of any private communication or spoken word

3.

By replaying the wire record, tape record, disc record for any other person or persons; or communicating the contents thereof, either verbally or in writing, to another person

4.

Furnishing transcriptions of the wire record, disc record or tape record, whether totally or partially, to any other person Title Ten CRIMES AGAINST PROPERTY

Chapter One ROBBERY IN GENERAL Art. 293. Who are guilty of robbery ROBBERY- committed by any person who, with intent to gain, shall take any personal property belonging to another,


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Offender unlawfully takes the personal property of another UNLAWFUL TAKING - deprivation of the offended party of his personal property. The personal property belongs to another person - If the property does not belong to another person, it cannot be said that there is intent to gain on the part of the offender Intent to gain in taking the property - Intent to gain is an internal state of mind. The law presumes that there is intent to gain the moment that there is taking of personal property of another Taking is with violence and intimidation or force upon things

Section One – Robbery with violence against or intimidation of persons

Art. 294. Robbery with violence against or intimidation of persons 2 Types of Robbery: 1. WITH VIOLENCE AND INTIMIDATION In this kind of robbery, the value of the property taken is immaterial because the penalty is dependent on the violence employed by the offender. 2. WITH FORCE UPON THINGS The value of the property taken is material because the penalty is dependent upon the value of the property.

ROBBERY WITH VIOLENCE AND INTIMIDATION ACTS: 1. When by reason or on the occasion of robbery, homicide is committed 2. When robbery is accompanied by rape, intentional mutilation, or arson 3. When by reason or on the occasion of robbery, any of the serious physical injuries resulting to insanity, imbecility, impotency or blindness was committed 4. When by reason or on the occasion or robbery, any of the of the serious physical injuries resulting to the loss of the use of speech or the power to hear or to smell, or •

CRIMINAL LAW 2 shall have lost an eye, a hand, a foot, an arm, or a leg or shall have lost the use of any such member, or shall have become incapacitated for the work in which he was therefor habitually engaged 5. When the commission of the robbery is carried to a degree clearly unnecessary for the commission of the crime 6. In the execution of the robbery, and in consequence of the physical injuries inflicted, the person injured shall have become deformed, or shall have lost any other part of his body, or shall have lost the use thereof, or shall have been ill or incapacitated for the performance of the work in which he as habitually engaged for a period of more than ninety days 7. If the violence employed in the commission or robbery does not constitute the physical injuries covered by sub-divisions 3 and 4 of said Article 263 or that only intimidation is employed. Based on the foregoing, there exists crimes such as robbery with homicide, robbery with rape, robbery with serious physical injuries and robbery with unnecessary violence and simple robbery.

ROBBERY WITH HOMICIDE is a special complex crime because in reality there are two crimes committed but in the eyes of the law, there is only one crime. For as long as the original intent or original criminal design of the offender is to rob, the killing may take place before, during or after the robbery

-

regardless of the number of persons killed, there is only one crime committed. Also, even if the killing is unintentional or accidental, there is still one crime committed.

-

even if the victim of the killing is different from the victim of the robbery, still it is robbery with homicide. This constitutes the difference between kidnapping with serious illegal detention because in this crime, the victim of the kidnapping must also be the victim of the killing

Example: • A went to the house of B and took the valuables therein. During the taking, one jewelry box suddenly fell on the floor. This awakened the owner of the house, X. When A saw this, he immediately shot X


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• In same problem, wife of X was also awakened and she started to shout. Because of this, A also shot the wife CRIME: Robbery with homicide even if two persons were killed since the crime is a special complex crime. All the offenses are merged into a single indivisible crime of robbery with homicide. • A was about to go out bringing with him the valuables he robbed. However, he bumped the door. This awakened the owner, X, who tried to chase A. They reached the garden part of the house. While therein, A positioned himself to shoot X, so X jumped on A to struggle possession of the gun. In the course of the struggle, the gun fired and hit a balot vendor who passed by the house of X. CRIME: Robbery with homicide. Since it is a special complex crime, even if the victim of robbery is different from the victim of homicide or even if the killing is accidental, there is only a single indivisible crime committed. So long as the killing is by reason or on the occasion of the robbery.

CRIME: Robbery with homicide because by reason or on the occasion of robbery, homicide was committed.

• A, B and C entered the house of X to commit robbery. After taking the valuables and as they were about to leave, X was awakened. Among the three, it was only A who shot and killed X. CRIME: All are criminally liable even if it is only A who shot X. While there is a rule that in an express or direct conspiracy the conspirators are liable only for the crime agreed upon by them, the situation however falls under the exception. EXCEPTION: That is, when the conspiracy results to a special complex crime. The crimes cannot be separated from each other. Thus, even if it’s only A who shot X or even if the agreement is only to commit robbery, since homicide was committed by reason or on the occasion of robbery, all are criminally liable for the crime of robbery with homicide. EXCEPTION TO THE EXCEPTION: is when B and C performed acts to prevent A from killing X.

People vs Cabbab In a game played by A, B, X, Y and Z, it was A who won the game. After the game, while A, B and Z were about to leave, X and Y were furiously looking at them. Suddenly, X and Y fired several shots against A, B and Z. Z, who was a police officer, dove into the canal in order to prevent himself

CRIMINAL LAW 2 from being killed. Z was injured. Unfortunately, A and B were killed and thereafter, the winnings of A were taken by X and Y. Fiscal filed the cases of - 1. Robbery because of the taking of the winnings, 2. Double murder because of the death of A and B, and 3. Attempted murder insofar as Z is concerned. RTC ruled that the charges were wrong because the crime committed is robbery with double homicide and attempted murder Upon appeal, CA ruled that the ruling of RTC is incorrect because the crime committed is robbery with homicide and attempted murder SC: The Fiscal, RTC and CA were all wrong. The crime committed is only the single indivisible offense of robbery with homicide. All the acts are considered absorbed by robbery with homicide despite the fact that 2 persons were killed and 1 person was injured. All these circumstances are merged into an integrated whole; that is, the single indivisible offense of robbery with homicide

ROBBERY WITH RAPE is also a special complex crime. So long as the intention of the offender is to commit robbery, the rape can be committed before, during and after the robbery. Regardless of the number of rapes, there is only a single indivisible crime. There is no such crime as robbery with multiple rapes. Example: • A woman was walking on her way home. It was payday and her salary was inside her bag. X, the robber, took the bag of the woman and got the money therein. X found the woman attractive so he raped her twice. CRIME: Robbery with rape, regardless of the number of times the woman was raped.

Even if not all of the offenders raped the victim, still all of them are criminally liable for the crime of robbery with rape because the two lookouts did not perform acts to prevent the rape.

R O B B E RY W I T H I N T E N T I O N A L M U T I L AT I O N , ROBBERY WITH SERIOUS PHYSICAL INJURIES AND ROBBERY WITH ARSON For as long as the original intent is to commit robbery, the intentional mutilation, serious physical injury or arson may be committed before, during or after the robbery. Example: • It was payday. A and B saw X with a bag. A and B signaled X to give them his bag. X gave the bag and left. A and B went to a nearby waiting shed bringing with them the bag of X. In the waiting shed, A and B divided the money of X. In the course of the partition, A gave B only a small share of the money. B got mad. B shot A. CRIME: Robbery with Homicide, even if it was an offender killed. This is because the killing took place by reason of the robbery, while A and B were dividing the loot.

• In the same problem, while A and B were dividing the loot, B got a small share. Because of this, B without intent to kill shot A who suffered serious physical injuries. CRIME: Robbery with serious physical injuries

People vs Suyu A couple was having snack inside the car. While eating, they saw shadows of four men trying to push the car. One of them was Suyu. The couple was forced to open the door and get out of the car. The men took the valuables of the couple. While the men were taking the valuables, the boyfriend ran and left the girlfriend. After taking the valuables, the men dragged the abandoned girlfriend to a nearby nipa hut. Inside the nipa hut, the girlfriend was raped by Suyu, the mastermind. After Suyu, the girlfriend was again raped by the other companion. The girlfriend was raped three times. Rape with carnal knowledge and rape with sexual assault were committed against her. The


other two men remained outside the nipa hut to serve as lookouts. CRIME: Robbery with rape. Regardless of the fact that two persons raped the victim, regardless of the fact that the victim was raped three times, and regardless of the fact that two natures of rape (carnal knowledge and sexual assault) were committed against the victim, there is only one indivisible crime.

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• In the same problem, while A and B were dividing the loot, B got a small share. Because of this, B took his ice pick from his pocket and used it to put an X mark on the face of A. This serious physical injury resulted to deformity. CRIME: Robbery and Serious Physical injury. Under Art. 294 par 4, when the serious physical injury that resulted is a deformity, or the loss of any other member of his body, the law requires that the said serious physical injury or deformity is inflicted in the course of the execution of the robbery upon a person not responsible for the robbery. Otherwise, it will bring about a separate and distinct crime.

CRIMINAL LAW 2

Here, the deformity was inflicted after the robbery and upon a person responsible for the commission of the robbery. Thus, there are two crimes committed: Robbery and Serious Physical Injury.

• What if A went to the house of B, instead of X which was his original plan. A, while taking the valuables, made some noise and awakened the owner of the house, and so A shot the owner of the house. The owner of the house died. Thereafter A hurriedly went downstairs. Downstairs he saw the wife, found the wife attractive, and he raped the wife. After raping the wife, he also saw the maid and found the maid attractive, so he raped the maid. The moment he got out of the door of the house, the gardener saw him and tried to prevent A from leaving the house. And so A shot the gardener, and in shooting the gardener, A shot the arms several times, resulting in the severance of the arm, so intentional mutilation. Not only that, when he was going out of the gate, here comes the driver, preventing A from leaving the house. So what A did was that he boxed the driver several times which resulted to serious physical injuries. What are the crimes committed? So we have one death, two rapes, intentional mutilation and serious physical injuries.

A only committed the single indivisible offense of robbery with homicide. All the rape, intentional mutilation and serious physical injuries are merged into the composite integrated offense and that is, the single indivisible offense of robbery with homicide.

•

•

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.

Art. 296. Definition of a band and penalty incurred by the members thereof.

Art. 297. Attempted and frustrated robbery committed under certain circumstances.

Art. 298. Execution of deeds by means of violence or intimidation.

The first is homicide, rape, intentional mutilation, arson, serious physical injuries, unnecessary violence and simple robbery. All the others are merged, and that is robbery with homicide. The other offenses will not be considered as aggravating circumstances because there is nothing in Art. 14 that will consider the other offenses as aggravating circumstances. That is why you have to


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Section Two – Robbery by the use of force upon things •

ROBBERY WITH USE OF FORCE UPON THINGS

Art. 299. Robbery in an inhabited house or public building or edifice devoted to worship • Another form of robbery is robbery with the use of force upon things in Art 299.

You have to observe the sequence because the highest is robbery with homicide.

• If rape took place after A committed robbery, A after taking the valuables of the house, raped the wife and while he was raping the wife, the husband saw A, so A killed the husband, and then later the driver put up a fight and resulted to serious physical injuries. What are the crimes committed? The crime committed is robbery with homicide.

observe the sequence. So if there was only rape, intentional mutilation, serious physical injuries, it will be robbery with rape. It will only be a single indivisible offense. It will be a special complex crime.

• In case of violence against persons, the value of the property is not important because the penalty is the basis of the violence.

• In Art. 299, the basis of the penalty is the value of the property taken.

3 ways of committing robbery with use of force upon things: 1. When a person enters the dwelling, house, public building or edifice devoted to worship where personal property is taken through: a. An opening not intended for entrance or egress b. By breaking any wall, roof, or floor or breaking any door or window. c. By using false keys, picklocks or similar tools

CRIMINAL LAW 2 d.

By using any fictitious name or pretending the exercise of public authority

appropriated the jewelry? What are the crimes committed? Is Brother A only liable civilly? A is guilty of robbery with use of force upon things. He is an insider, and he used force to break open the cabinet of B. He did not commit theft. Since the crime committed is robbery, brother A is criminally liable and civilly liable. Because under Article 332, it is only on cases of theft, swindling, estafa, and malicious mischief, wherein there’s no criminal liability but only civil liability in case of relatives living together.

NOTE: Under the first act, the essence of the crime is in • the unlawful entry; it is the act of trespassing and also the taking of the property of another. •

It is necessary that the entire body must have enter, otherwise, even if there is breaking, it would only amount to theft and that breaking would amount only to aggravating circumstance. The Supreme Court ruled that when the law used the word “enter”, it means that the entire body must have entered said place to take the property of another.

Example • A, in order to rob the house made an opening in the roof, sufficient for him to enter. So he used a rope in going down and thereafter he took the valuables and then left. What crime is committed? Robbery by use of force upon things. A made an opening and he was able to enter fully.

• In the same problem, what if A was in need of money, he saw the expensive watch of B on top of the table and sold the watch. What crime was committed? A committed the crime of theft since there is no breaking or forcibly opening the receptacle. Under Art 332, he is only liable for civil liability. They are free from criminal liability.

Art. 332. Persons exempt from criminal liability. — No criminal, but only civil liability, shall result from the commission of the crime of theft, swindling or malicious mischief committed or caused mutually by the following persons: 1. Spouses, ascendants and descendants, or relatives by affinity in the same line. 2. The widowed spouse with respect to the property which belonged to the deceased spouse before the same shall have passed into the possession of another; and 3. Brothers and sisters and brothersin-law and sisters-in-law, if living together. The exemption established by this article shall not be applicable to strangers participating in the commission of the crime.

• What if he made an entry, let down a rope with a hook and used it in taking the valuable. The crime committed only is theft with aggravating circumstance of the breaking of the roof. His body did not enter the premises.

2.

When the offender manages to enter said inhabited place, dwelling, public place or place dedicated to religious worship without any unlawful entry, or is an insider, and once inside, he used force in opening in order to: a. Break doors, wardrobes, chests, or any other kind of locked or sealed furniture or receptacle

NOTE: The second act is when the offender was able to • enter without unlawful entry or was an insider and once inside, breaks the doors, wardrobes, chest, receptacles, and thereafter took the personal properties inside the house.

Example • A and B are brothers, living in the same house and in the same room but have different cabinets where each of the cabinets have locks. One time brother A was in need of money and wanted to borrow money from brother B, but brother B was out of the house. So what brother A did was that he forcibly opened the cabinet of brother B and took the expensive jewelries of brother B and


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• Since it refers to simple crimes, if the crime committed is estafa through falsification of public document, there will be criminal liability. This exemption from criminal liability will only lie in the cases mentioned in Art. 332. 3.

When the offender manages to enter said inhabited place, dwelling, public place, or place dedicated to religious worship without any unlawful entry, once inside he took the sealed receptacle outside to be opened or forced open.

CRIMINAL LAW 2 •

The offender was able to enter and once inside, he did not use force to open the close cabinet or receptacle. Instead, he took the cabinet and receptacle outside to open it.

Circumstances that will qualify robbery with use of force upon things: Art. 300. Robbery in an uninhabited place and by a band. Under Article 300, if robbery is committed with • in an uninhabited place and by a band — the law used the conjunction AND, both must concur in order to amount a qualifying circumstance, to increase the penalty. So it should be in an uninhabited place and by a band, therefore both must be present.

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. • In case of robbery with serious physical injuries, unnecessary violence or simple violence, how will the crime be qualified? The answer is under Art. 295, where if the said robbery is: 1. Committed in an uninhabited place OR by a band 2. By attacking any moving train, street car, motor vehicle or airship 3. B y e n t e r i n g t h e p a s s e n g e r ’ s compartments in a train; or 4. Taking the passengers by surprise in their respective conveyances 5. On a street, road, highway, or alley and the Intimidation is made use of a firearm

NOTE: That in case of robbery with violence or • intimidation on persons, the qualifying circumstances are present, only one of these is sufficient to qualify the penalty. The law here uses the conjunction OR not AND.

Example: • A went to the house of B. A told B “this is a hold up and bring out the valuables”. Instead of bringing the valuables to A, B panicked and shouted. A therefore shot B. B died. A also panicked and left the place without bringing his loot. What is/are the crime/s committed? The crime committed by A is attempted robbery with homicide. This is also a special complex crime. Here robbery was attempted because he was unable to take any of the property. The fact that A was able to announce hold-up and bring the


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valuables to him means that the original design is to commit robbery. It was attempted because he was unable to take the property, and in the course of thereof, he killed the owner. •

In order to amount to special complex crime, it is necessary that both the robbery and homicide must be consummated.

• What if in the course of robbery, the said owner was shot but was able to survive. What crime is committed? The crime committed is robbery with physical injuries depending on the injuries sustained by the victim. In order to amount to robbery with homicide, it is necessary that both crimes must be present and there is no such thing as robbery with frustrated homicide or attempted homicide, for it is the law which provides for the crime which must be complexed, and the law does not provide that frustrated homicide or attempted homicide must be complexed with robbery.

In the instant case, since the killing took place at the spur of the moment, then it is robbery with homicide.

Chapter Two BRIGANDAGE

What if robbery was committed by 4 armed men?

Art. 296. Definition of a band and penalty incurred by the members thereof. • A was walking, suddenly there are 4 men with knives and took A’s bag which is full of money. A put up a fight. And so these armed men killed A. What crime is committed? Is the crime committed robbery in band with homicide? There is no such crime as robbery by a band with homicide. The said use of band is only an aggravating circumstance. The proper designation of the crime is robbery with homicide. The fact that it is committed by 4 armed men is only an aggravating circumstance. Under Art. 296, if a band committed robbery, it is only an aggravating circumstance.

Art. 306. Brigandage. Under Article 306, it is committed by at least 4 armed men for the purposes of 1. committing robbery in the highway; 2. kidnapping persons for the purpose of extortion or ransom

CRIMINAL LAW 2

3. for any other purpose to be attained by means of force and violence. Art. 296

Art. 306

Both require at least 4 armed persons It is required that the 4 armed men must actually take part in the commission of the robbery

The crime is already consummated by the mere fact that 4 armed men formed a band of robbers. It is not required that they actually commit the enumerated purposes.

PD 532 (THE ANTI-HIGHWAY ROBBERY LAW OF 1974)

In PD 532, brigandage is defined as the seizure of any person for ransom, extortion, or other unlawful purposes, or the taking away of property of another by means of violence against or intimidation of persons of force upon things or other unlawful means, committed by any person on any Philippine highway.

Art 306 vs. PD 532, or the Anti-Highway Robbery Law of 1974 Art. 306

PD 532

Requires that there must No requisite as to the # of be at least 4 armed men perpetrators of the crime Even a single person can commit the crime of brigandage The mere formation of the There must be an actual band of robbers for any of commission of the crime or the purposes mentioned no crime will arise will bring about the crime There is a predetermined There is no preconceived or preconceived victim victim. It is committed indiscriminately on any person passing on the highway as long as it is committed in a Philippine highway.

Theft is likewise committed by: 1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner; 2. Any person who, after having maliciously damaged the property of another, shall remove or make use of the fruits or object of the damage caused by him; and 3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which belongs to another and without the consent of its owner, shall hunt or fish upon the same or shall gather cereals, or other forest or farm products.

The definition is almost the same as robbery. The difference lies in the case of robbery where there is violence or intimidation of persons and use of force upon things, while in theft, there is no violence, intimidation against persons or force upon things.

Example: 1. A person who found a lost personal property of another but did not give it to the police, there is theft. 2. A damaged the property of B, he make use of that damage. 3. There is a vacant lot guarded by X. A person entered the vacant lot and took the fruits.

Valenzuela v. People There is no frustrated theft. In this case, the offender took boxes of tide from SM North Edsa and placed it in the taxi. Before they were able to left the premises of SM, they were a p p r e h e n d e d . T h e o ff e n d e r s w e r e c h a r g e d o f consummated theft. They did not deny that they committed theft but their defense is that they committed frustrated theft. The SC En Banc in 2007 ruled that there is no crime as frustrated theft. In case of theft, unlawful taking is deemed complete the moment the offender gain possession of the property of another, theft is consummated.

Art. 309. Penalties • When is theft qualified?

Chapter Three THEFT

Art. 308. Who are liable for theft. — 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.

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Art. 310. Qualified Theft Theft is qualified in the following instances: 1. If theft is committed by a domestic servant 2. If committed with grave abuse of confidence

CRIMINAL LAW 2 3. 4. 5. 6.

If the property stolen is a (a) motor vehicle, (b) mail matter, or (c) large cattle If the property stolen consists of coconuts taken from the premises of the plantation If the property stolen is taken from a fishpond or fishery If property taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance.

the car. X drove away with the car. What is the crime committed? The crime committed is carnapping. Even if there is no violence or intimidation against person or force upon things, so long as said taking is without the consent of the owner, it will amount to carnapping.

Under Sec. 14, the penalty if there no violence or intimidation against persons or use of force on things, the penalty is 14 years and 8 months to 17 years and 4 months.

Example: • A is a domestic servant. When his master was out of the house, A went to the masters’ bedroom and took the jewelries. In the information cited that he was a domestic servant but the information did not state that A took the jewelries with grave abuse of confidence. Is A liable for qualified theft? Yes, according to the Supreme Court, the law uses the conjunction OR. The fact that the accused is a domestic servant, it will suffice. The law does not require that abuse of confidence to be established. It will suffice that the accused is a domestic servant.

• A was a security guard. The owner of the house left his key to the security guard. However, the security guard used the key to open the house of the owner and took the valuables. What crime is committed? The Security Guard is liable for qualified theft because of grave abuse of confidence.

• If again, in the same problem, A tried to stop X and X shot A. A died. What is the crime committed? The fact that the owner is killed or raped as a consequence, the penalty is reclusion perpetua to death. It will bring about a higher penalty, but not as a special complex crime because it is a Special Penal Law. Though it is akin to a special complex crime, the killing is absorbed. The crime is carnapping. It is also not a bailable offense.

RA 6539 (ANTI-CARNAPPING ACT)

Carnapping- is the taking with intent to gain, of motor vehicle belonging to another without the consent of the latter, or by means of violence against or intimidation of persons, or by use of force upon things.

Elements: 1. Actual taking of motor vehicle 2. The vehicle belongs to another 3. There is intent to gain in the taking of the vehicle of another 4. Said taking is taking without the consent of the owner or by means of violence or intimidation or by means of force upon things.

Example: • A was driving his car and suddenly felt the need to answer the call of nature so he parked his vehicle. Suddenly, there was X and saw A was out of the car, and the door of the car was open and the key was left inside


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• In the given situation, what if A saw X and there was a fight that ensued between them. X shot A, and X was able to take the vehicle. A however survived due to immediate medical treatment. What is/are the crimes committed by X? The crime committed by X is only carnapping. The fact that X shot A, where there is frustrated homicide, it falls under violence or intimidation which was used by the offender in committing the crime. Since there is violence, the penalty is 17 years and 4 months to 30 years.

PD 533 (ANTI-CATTLE RUSTLING LAW)

Cattle Rustling - defined as the taking away by any means, method or scheme, without the consent of the owner/raiser, of any large cattle whether or not for profit or for gain, or whether committed with or without violence against or intimidation of persons or force upon things. It includes the killing of a large cattle or taking it as a meat or hide without the consent of the owner/raiser.

Large Cattle- shall include cow, carabao, horse, mule, ass, or other domesticated member of the bovine family. Goats are not large cattle. (sabi nung isang justice sa SC na prof naming dati, si Lawyer daw pag kinidnap cattle rustling daw tawag dun. Ang evil nya!)

Example:

CRIMINAL LAW 2 • A’s carabao was tied on the mango tree. X saw the carabao alone. So what X did was he untied the carabao and took the carabao away. A saw X with his carabao so A tried to catch up with X. As A was able to catch up with X, a fight ensued. X took his bolo and hacked A to death. What is the crime committed by X? The crime committed by X is only cattle rustling. The fact that the owner was killed is within the meaning of violence or intimidation against persons. It will not bring about a separate and distinct crime of murder. The Anti-Cattle Rustling Law, although a special law, is not malum prohibitum but a malum in se. Under Sec. 10 of the law, it is expressly provided that this law amends Art. 309 and 310 of the RPC. Since it is an amendment, the SC it is a malum in se and not a malum prohibitum.

Art. 311. Theft of the property of the National Library and National Museum. The value of the property is immaterial because • the law prescribed the penalty of arresto mayor or fine or both.

Chapter Four USURPATION

Art. 312. Occupation of real property or usurpation of real rights in property.

2 acts punished under Art 312: 1. Occupation of real property which is committed by any person who by means of violence against or intimidation shall occupy the real property of another 2. Usurpation of real rights in property committed by any person who by means of violence against or intimidation shall usurp any real rights in property of another person

Example: • There was a vacant lot. Here comes A and B and his family. The said land or property was being guarded by X. A and B went inside the vacant lot and tried to build a nipa house because they do not have any house. And so the guard told them that A and B has no right to build a nipa house because the lot is owned by Y. However, A and B told the guard that they do not have any house. In the course of the argument, A and B killed the guard. What is/are the crimes committed?

The crime committed is only occupation of real property. The killing is only a means to occupy the real property. It falls under violence against or


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intimidation of persons in occupying the real property.

• In the same problem A and B put up their house in the vacant property. The owner learned this and went to A and B’s house. However, A and B killed the owner. In this case, two crimes are committed. The killing took place after occupying the place. This time, the crimes committed are occupation and homicide or murder as the case maybe.

Art. 313. Altering boundaries or landmarks. — Any person who shall alter the boundary marks or monuments of towns, provinces, or estates, or any other marks intended to designate the boundaries of the same, shall be punished by arresto menor or a fine not exceeding 100 pesos, or both.

Chapter Five CULPABLE INSOLVENCY

Art. 314. Fraudulent insolvency. — Any person who shall abscond with his property to the prejudice of his creditors, shall suffer the penalty of prision mayor, if he be a merchant and the penalty of prision correccional in its maximum period to prision mayor in its medium period, if he be not a merchant.

Chapter Six SWINDLING AND OTHER DECEITS

CRIMINAL LAW 2 Art. 315. Swindling (estafa). — Any person who shall defraud another by any of the means mentioned here in below shall be punished by:

1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed under the provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be.

2nd. The penalty of prision correccional in its minimum and medium periods, if the amount of the fraud is over 6,000 pesos but does not exceed 12,000 pesos;

3rd. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period if such amount is over 200 pesos but does not exceed 6,000 pesos; and

4th. By arresto mayor in its maximum period, if such amount does not exceed 200 pesos, provided that in the four cases mentioned, the fraud be committed by any of the following means: 1. With unfaithfulness or abuse of confidence, namely: (a) By altering the substance, quantity, or quality or anything of value which the offender shall deliver by virtue of an obligation to do so, even though such obligation be based on an immoral or illegal consideration. (b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property. (c) By taking undue advantage of the signature of the offended party in blank,


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3 ways of committing estafa or swindling: 1. Estafa with unfaithfulness or abuse of confidence Art 315 (1) 2.

3.

By means of false pretense or by fraudulent acts executed prior to or simultaneous to the commission of the offense Art 315 (2) Through fraudulent means Art 315 (3)

Whatever be the crime of estafa, there are always 2 general elements: 1. That the accused defrauded another by means of abuse of confidence, or by means of deceit; and 2. That damage or prejudice capable of pecuniary estimation is caused to the offended party or third persons.

ESTAFA WITH UNFAITHFULNESS or ABUSE OF CONFIDENCE (1st form) Committed through: a. By altering the substance, quantity, or quality or anything of value which the offender shall deliver by virtue of an obligation to do so, even though such obligation be based on an immoral or illegal consideration.

•

NOTE: The law says that even if it based on an immoral or illegal consideration.

Example: • A is bound to deliver boxes of marijuana to B. At the bottom of the box were inferior qualities of marijuana while on top are high grade marijuana. Is A liable of estafa? A is liable for estafa. B can file a case of estafa against A. (for purposes of example only because B may be held liable for dangerous drugs act)

b. By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property. •

The moment that the offended party entrusted the money or goods or any other personal property to the offender, it is necessary that there must be a transfer of juridical possession. Juridical

CRIMINAL LAW 2

possession is a legal right over the property; possession in the concept of the owner. During the time that the possessor has legal possession of the property, even the owner cannot file estafa to the possessor because it is the rightful possessor at that moment. •

If what has been transferred is material or physical possession, and the offender misappropriates the same, he is only liable for qualified theft.

Example: • A rented a bicycle from B for Php500 for 2 hours. A was in possession of the said bicycle. 2 hours had lapsed, A was not able to return the bicycle to B. B demanded that A return the bicycle, but A did not. What is the crime committed by A? The crime committed by A is estafa because it there is a lease agreement. What has been transferred to A is juridical possession of the property by virtue of the lease agreement.

• A gave B a watch. A told B “This is my watch, use it as a collateral for my debt”. B however, instead of using it as collateral for the loan of A, sold the watch and appropriated the proceeds of the watch. What is the crime committed? The crime committed by B is qualified theft and not estafa. There is no transfer of juridical possession. A remains to be the owner of the watch, and said watch is only used as a collateral.

• A went to the bank and then A told the teller, “Here is 100k, kindly deposit this to my account. Here is my passbook and here is the money. Deposit it because I am in a hurry and I will drop by later in the afternoon.” However, A was not able to drop by in the afternoon. So A went the following day. When A asked for the passbook, he realized that the 100k was not deposited by the teller to his account. The teller misappropriated the 100k. What is the crime committed? The crime committed is Qualified Theft. The SC ruled that when the depositor leaves to the bank his money for deposit, what has been transferred is only the material or physical possession. The juridical possession of the money remains with the owner of the money. Hence, when it is misappropriated by the teller of the bank, it is only qualified theft and not estafa.

c. By taking undue advantage of the signature of the offended party in blank, and by writing any document above such signature in blank, to the prejudice of the offended party or of any third person.

Example: • The owner of the company has blank documents with his signature and gave it to his secretary. The said documents will be used in case of emergency. One time the secretary wrote a document above the blank signature stating that the said owner will be assuming the indebtedness of the secretary. The crime committed by the secretary is estafa because there is abuse of confidence. The owner entrusted the blank document to the secretary.

• What if the secretary placed the blank document it on the table. Here comes a visitor, and upon seeing the blank document, he took one and then he went to his house and wrote a document stating that the said owner shall assume his liability. The crime committed is not estafa but falsification of a private document because he made it appear that the owner participated in procuring the document when in fact, the owner did not.

ESTAFA BY MEANS OF FALSE PRETENSE or BY FRAUDULENT ACTS PRIOR TO OR SIMULTANEOUS TO THE COMMISSION OF THE OFFENSE (2ND form)

• A works in the field and makes cash advance to his company. One time he went to a certain place and there is a cash advance. When A returned, A failed to liquidate

the expenses in the cash advance despite demands. What is the crime committed by A? According to the SC, a cash advance is in the nature of a loan. When an employee makes a cash advance to the company, it is in effect obtaining a loan from the company. Therefore ownership is transferred to the employee because there is no obligation to return the very same money. Hence there can be no estafa. Since ownership was transferred and that the employee cannot pay, we have the relationship of creditor and debtor, not that entrustor- entrustee. There will be no criminal case but only civil liability. Hence, we have a civil case of collection for sum of money.

a.By using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits.

Example:


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CRIMINAL LAW 2 • A, Band C are newly graduates. They just passed the nursing board exam. X learned that A, B, and C passed the board so he went to the house of A, B and C and told them that X has a placement agency that will help them find work abroad. AB and C believed X, and X demanded that they give X 100k for processing fees. A, B, and C never saw X again. Later X was arrested. What are the crimes committed by X? X may be liable of estafa by falsely pretending to possess power or agency, where in fact, he is not licensed by the POEA of Department of Labor.

• Can he also be held liable for illegal recruitment? He can also be liable for illegal recruitment under the labor code.

Under PD 2018, which amended Article 38 and 39 of the Labor Code, where if illegal recruitment is committed by a syndicate (3 or more persons) or in large scale (where the victims are 3 or more persons individually or as a group), the crime committed is economic sabotage.

By reason thereof, the offender is liable for 2 crimes, and that is estafa and illegal recruitment.

• Can the offender be prosecuted at the same time? Yes, because estafa requires illegal deceit or false pretense, while in illegal recruitment does not require deceit or false pretense. The mere fact of recruiting where he does not have any license makes him liable for illegal recruitment.

d.

Example: • A is building a house, so he went to B, who is the owner of the hardware store. A told B that he doesn’t have any money at the moment but he will be issuing a check guaranteeing that it will be funded on the 15th, which is the maturity date. B believed A’s representation that the check will be funded so B placed the construction materials to A. On the 15th day of the month, the check bounced. B sent a notice of dishonor to A, but despite such notice of dishonor, months had passed and yet A still failed to pay. What crimes may be filed against A? B may file a case of estafa because the said check was issued in concomitance with the said fraud. Where it not for the said check, B would not give the construction materials to A.

• Aside from that, can A also be held liable for violation of BP22? A may also be held liable for violation of BP 22. It will apply in any cases the moment the check bounce. The essence of BP22 is the issuance of the worthless check.

By post-dating a check, or issuing a check in payment of an obligation when the offender therein were not sufficient to cover the amount of the check. The failure of the drawer of the check to deposit the amount necessary to cover his check within three (3) days from receipt of notice from the bank and/or the payee or holder that said check has been dishonored for lack of insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent act. (As amended by R.A. 4885, approved June 17, 1967.)

BP 22 (BOUNCING CHECKS LAW) 2 acts punished in BP 22: 1. Making or drawing and issuing a check knowing at the time of issue that he does not have sufficient funds. The offender knows that he does not have • sufficient funds in his account at the time of the issuance of the check.


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2. Failing to keep sufficient funds to cover the full amount of the check. The funder knows that he has sufficient amount at • the time of the issuance of the check but failed to keep sufficient funds to cover the amount after the issuance of the check. The crime will arise for his failure to keep sufficient funds or maintain his credit to cover the full amount for a period of 90 days from the date appearing on the check.

o

o

o

o

However, said offense will not automatically amount to estafa. In order to amount estafa, it is necessary that the issuance of the check is the reason of the defraudation. That is, where it not for the said check, where it not for the promise of the said check, the offended party would not have parted with his property or money. In order to amount estafa by postdating a check, the issuance of the check must not be in payment of a pre-existing obligation. It is necessary that the obligation is in concomitance with the issuance of the check. In case of BP 22, even if in payment of preexisting obligation, the moment the check bounced, BP 22 will apply. In case of estafa, the offender must make good of the check within a period of 3 days. In BP 22, the offender must make good of the check within 5 banking days.

CRIMINAL LAW 2 intent of AC 10-2000 does not erase imprisonment as an alternative penalty. What 10-2000 establishes is a rule of preference, and that is, if the offender acted in good faith, and there is clear mistake of fact without any taint of negligence, fine should be the appropriate penalty. Nevertheless, still whether to impose penalty of imprisonment of fine is within the sound discretion of the court.

When is there prima facie evidence of knowledge of insufficiency of funds in BP 22? Section 2 of BP 22, there arises the prima facie knowledge of insufficiency of funds when the offender makes or draws and issues a check which bounced when deposited within the period of 90 days from the moment of its issue.

Elements of prima facie knowledge: 1. The check must be deposited within 90 days from date appearing on the check; 2. There must be notice of dishonor received by the drawer of the check; 3. The drawer of the check failed to make good of the check within 5 banking days from receipt of the notice of dishonor.

• If the drawer was able to make good of the check within 5 banking days, the prima facie presumption of knowledge of insufficiency of funds will not arise.

Example: • If the holder deposited the check on the 100th day. Can the drawer of the check be still held liable for violation of BP 22? Yes, the drawer is liable for violation of BP 22. What is erased only is the prima facie knowledge of insufficiency of funds. But so long as the check is not a stale check (check beyond 6 months or 120 days). If said check is dishonored, violation of BP 22 can still arise, because the prima facie knowledge of insufficiency of funds can be proven by other evidence.

Penalty for violation of BP22: Imprisonment of not less than 30 days but not more than 1 year or a fine of not less than but not more than double the amount of the check which fine shall in no case exceed PHP200,000, or both such fine and imprisonment at the discretion of the court.

NOTE: In consonance with this penalty, the SC in the • cases of Rosalie v. CA and VACA v. CA, SC issued AC 10-2000. In this Supreme Court AC, because of its decision in the said cases, in lieu of penalty, in lieu of imprisonment, the proper penalty to be imposed would be fine, if the offender acted in good faith or clear mistake of fact without any taint of negligence.

•

The SC again issued AC 13-2001 to clarify the first circular. AC 13-2001 states that the tenor and


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•

In case the penalty imposed is only fine, there is no hindrance in the court to impose subsidiary imprisonment in case of failure to pay fine.

CRIMINAL LAW 2 Art. 316. Other forms of swindling. — The penalty of arresto mayor in its minimum and medium period and a fine of not less than the value of the damage caused and not more than three times such value, shall be imposed upon: 1. Any person who, pretending to be owner of any real property, shall convey, sell, encumber or mortgage the same. 2. Any person, who, knowing that real property is encumbered, shall dispose of the same, although such encumbrance be not recorded. 3. The owner of any personal property who shall wrongfully take it from its lawful possessor, to the prejudice of the latter or any third person. 4. Any person who, to the prejudice of another, shall execute any fictitious contract. 5. Any person who shall accept any compensation given him under the belief that it was in payment of services rendered or labor performed by him, when in fact he did not actually perform such services or labor. 6. Any person who, while being a surety in a bond given in a criminal or civil action, without express authority from the court or before the cancellation of his bond or before being relieved from the obligation contracted by him, shall sell, mortgage, or, in any other manner, encumber the real property or properties with which he guaranteed the fulfillment of such obligation.

Art. 317. Swindling a minor. — Any person who taking advantage of the inexperience or emotions or feelings of a minor, to his detriment, shall induce him to assume any obligation or to give any release or execute a transfer of any property right in consideration of some loan of money, credit or other personal property,whether the loan clearly appears in the document or is shown in any other form, shall suffer the penalty of arresto mayor and a fine of a sum ranging from 10 to 50 per cent of the value of the obligation contracted by the minor.

Art. 318. Other deceits. — The penalty of arresto mayor and a fine of not less than the amount of the damage caused and not more than twice such amount shall be imposed upon any person who shall defraud or damage another by any other deceit not mentioned in the


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Chapter Eight ARSON AND OTHER CRIMES INVOLVING DESTRUCTIONS

Chapter Eight A R S O N A N D O T H E R C R I M E S I N V O LV I N G DESTRUCTIONS Art. 320. Destructive arson. — The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall burn: 1. Any arsenal, shipyard, storehouse or military powder or fireworks factory, ordinance, storehouse, archives or general museum of the Government. 2. Any passenger train or motor vehicle in motion or vessel out of port. 3. In an inhabited place, any storehouse or factory of inflammable or explosive materials.

Art. 321. Other forms of arson. — When the arson consists in the burning of other property and under the circumstances given hereunder, the offender shall be punishable: 1. By reclusion temporal or reclusion perpetua: (a) if the offender shall set fire to any building, farmhouse, warehouse, hut, shelter, or vessel in port, knowing it to be occupied at the time by one or more persons; (b) If the building burned is a public building and value of the damage caused exceeds 6,000 pesos; (c) If the building burned is a public building and the purpose is to destroy evidence kept therein to be used in instituting prosecution for the punishment of violators of the law, irrespective of the amount of the damage; (d) If the building burned is a public building and the purpose is to destroy evidence kept therein to be used in legislative, judicial or administrative proceedings, irrespective of the amount of the damage; Provided, however, That if the evidence destroyed is to be used against the defendant for the prosecution of any crime punishable under existing laws, the penalty shall be reclusion perpetua; (e) If the arson shall have been committed with the intention of collecting under an insurance policy against loss or damage by fire.

2. By reclusion temporal: (a) If an inhabited house or any other building in which people are accustomed to meet is set on fire, and the culprit did not know that such house or building was occupied at the time, or if he shall set fire to a moving freight train or motor vehicle, and the value of the damage caused exceeds 6,000 pesos; (b) If the value of the damage caused in paragraph (b) of the preceding subdivision does not exceed 6,000 pesos; (c) If a farm, sugar mill, cane mill, mill central, bamboo groves or any similar plantation is set on fire and the damage caused exceeds 6,000 pesos; and (d) If grain fields, pasture lands, or forests, or plantings are set on fire, and the damage caused exceeds 6,000 pesos.

CRIMINAL LAW 2

3. By prision mayor: (a) If the value of the damage caused in the case mentioned in paragraphs (a), (c), and (d) in the next preceding subdivision does not exceed 6,000 pesos; (b) If a building not used as a dwelling or place of assembly, located in a populated place, is set on fire, and the damage caused exceeds 6,000 pesos;

4. By prision correccional in its maximum period to prision mayor in its medium period: (a) If a building used as dwelling located in an uninhabited place is set on fire and the damage caused exceeds 1,000 pesos; (b) If the value or the damage caused in the case mentioned in paragraphs (c) and (d) of subdivision 2 of this article does not exceed 200 pesos.

5. By prision correccional in its medium period to prision mayor in its minimum period, when the damage caused is over 200 pesos but does not exceed 1,000 pesos, and the property referred to in paragraph (a) of the preceding subdivision is set on fire; but when the value of such property does not exceed 200 pesos, the penalty next lower in degree than that prescribed in this subdivision shall be imposed.

6. The penalty of prision correccional in its medium and maximum periods, if the damage caused in the case mentioned in paragraph (b) of subdivision 3 of this article does not exceed 6,000 pesos but is over 200 pesos. 7. The penalty of prision correccional in its minimum and medium periods, if the damage caused in the case mentioned paragraph (b) subdivision 3 of this article does not exceed 200 pesos.

8. The penalty of arresto mayor and a fine ranging from fifty to one hundred per centum if the damage caused shall be imposed, when the property burned consists of grain fields, pasture lands, forests, or plantations when the value of such property does not exceed 200 pesos. (As amended by R.A. 5467, approved May 12, 1969).

Art. 322. Cases of arson not included in the preceding articles. — Cases of arson not included in the next preceding articles shall be punished:

1. By arresto mayor in its medium and maximum periods, when the damage caused does not exceed 50 pesos; 2. By arresto mayor in its maximum period to prision correccional in its minimum period, when the damage caused is over 50 pesos but does not exceed 200 pesos; 3. By prision correccional in its minimum and medium periods, if the damage caused is over 200 pesos but does not exceed 1,000 pesos; and 4. By prision correccional in its medium and maximum periods, if it is over 1,000 pesos.

Art. 323. Arson of property of small value. — The arson of any uninhabited hut, storehouse, barn, shed, or any other property the value of which does not exceed 25


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pesos, committed at a time or under circumstances which clearly exclude all danger of the fire spreading, shall not be punished by the penalties respectively prescribed in this chapter, but in accordance with the damage caused and under the provisions of the following chapter.

Art. 324. Crimes involving destruction. — Any person who shall cause destruction by means of explosion, discharge of electric current, inundation, sinking or stranding of a vessel, intentional damaging of the engine of said vessel, taking up the rails from a railway track, maliciously changing railway signals for the safety of moving trains, destroying telegraph wires and telegraph posts, or those of any other system, and, in general, by using any other agency or means of destruction as effective as those above enumerated, shall be punished by reclusion temporal if the commission has endangered the safety of any person, otherwise, the penalty of prision mayor shall be imposed.

Art. 325. Burning one's own property as means to commit arson. — Any person guilty of arson or causing great destruction of the property belonging to another shall suffer the penalties prescribed in this chapter, even though he shall have set fire to or destroyed his own property for the purposes of committing the crime.

Art. 326. Setting fire to property exclusively owned by the offender. — If the property burned shall be the exclusive property of the offender, he shall be punished by arresto mayor in its maximum period to prision correccional in its minimum period, if the arson shall have been committed for the purpose of defrauding or causing damage to another, or prejudice shall actually have been caused, or if the thing burned shall have been a building in an inhabited place.

Art. 326-A. In cases where death resulted as a consequence of arson. — If death resulted as a consequence of arson committed on any of the properties and under any of the circumstances mentioned in the preceding articles, the court shall impose the death penalty.

Art. 326-B. Prima facie evidence of arson. — Any of the following circumstances shall constitute prima facie evidence of arson: 1. If after the fire, are found materials or substances soaked in gasoline, kerosene, petroleum, or other inflammables, or any mechanical, electrical chemical or traces or any of the foregoing. 2. That substantial amount of inflammable substance or materials were stored within the building not necessary in the course of the defendant's business; and 3. That the fire started simultaneously in more than one part of the building or locale under circumstances that cannot normally be due to accidental or unintentional causes: Provided, however, That at least one of the following is present in any of the three abovementioned circumstances:

CRIMINAL LAW 2 (a) That the total insurance carried on the building and/ or goods is more than 80 per cent of the value of such building and/or goods at the time of the fire; (b) That the defendant after the fire has presented a fraudulent claim for loss.

The penalty of prision correccional shall be imposed on one who plants the articles above-mentioned, in order to secure a conviction, or as a means of extortion or coercion. (As amended by R.A. 5467, approved May 12, 1969).

3.

ARSON- is the malicious destruction of property set by fire. It can be either destructive or simple arson. Destructive or simple arson is not dependent on the value of the property but rather on the

4.

SAMPLE PROBLEM: 1. A is a maid and it was Christmas time. A wanted to go to the province so she asked the master of the house if she can go to the province. The master of the house said no. The maid got mad, so while the master of the house and his family are sleeping, A burned the house and left. The house of the master was not the only one burned, but also the neighbors’ houses. The master and his children were killed. What is/are the crimes committed by A? Is A liable for destructive arson or simple arson only?

Destructive Arson is found under Art 320 of the RPC while Simple Arson and other arson is repealed by PD 1613 repealing Article 320 to 326 B of the RPC. Even though there are five deaths, the deaths will be absorbed in the crime of arson and will only qualify the penalty to death. The maid is only liable for simple arson, because what has been burned is an inhabited dwelling. For as long as the thing burned is an inhabited house or dwelling, the crime committed is simple arson. If in the course of burning the dwelling, homicide results, the crime committed is still arson.

If the intention is to kill the offended party, and the means employed is through burning the house, the crime committed is MURDER. If however, the intention of the offender is to destroy the property of the offended party by fire, and the offender did not know that someone is inside and death results, the crime is still simple arson. It will only qualify the penalty to RP to death.

2.

A killed B while sleeping. The crime committed is murder. In order to conceal the crime, A burned the house. This time, the crime committed is 2. Murder for killing B and Arson, order to hide the crime committed. The arson committed is destructive arson, as it is defined by the law.

How is destructive arson committed? 1. One or more buildings or edifices, consequent to one single act of burning, or as a result of simultaneous burnings or committed on several or different occasions; 2. Any building of public or private ownership, devoted to public in general, or where people


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5.

usually gather or congregate for a definite purpose such as but not limited to official government function or business, private transaction, commerce, trade workshop, meetings, conferences, or merely incidental to or for a definite purpose such as but not limited to motels, transient dwellings, public conveyances or stops, or terminals, regardless of whether the offender had knowledge that there are persons in said building or edifice at the time set on fire and regardless also of whether the building is actually inhabited or not. Any train, locomotive, ship or vessel, airship or airplane, devoted to transportation or conveyance, or for public use, entertainment and leisure; Any building, factory, warehouse installation and any other appurtenances thereto, which are devoted to the service of public utilities; Any building the burning of which is for the purpose of concealing or destroying the evidence of another violation of law, or for the purpose of concealing bankruptcy or defrauding creditors or to collect from insurance.

There is also destructive arson in the following instances: 1. When the arson is committed by 2 or more persons, regardless of whether their purpose is merely to burn or destroy the building or the burning merely constitutes an overt act in the commission of another violation of the law; 2. When any person shall burn: a. Any arsenal, shipyard, storehouse or military power or fireworks factory, ordinance, storehouse, archives or general museum of the Government; or b. In an inhabited place, any storehouse or factory of inflammable or explosive materials.

When is there simple arson otherwise known as other cases of arson in PD 1613? Burning of: 1. Any building used as offices of the government or any of its agencies; 2. Any inhabited house or dwelling; 3. Any industrial establishment, shipyard, oil well or mine shaft, platform or tunnel; 4. Any plantation, farm, pasture land, growing crop, grain field, orchard, bamboo grove or forest; 5. Any rice mill, sugarmill, cane mill, or mill central; 6. Any railway or bus station, airport, wharf, or warehouse.

Penalty for destructive arson: Reclusion Perpetua to Death • If as a result of the commission of any acts of destructive arson, death results, the penalty should be death. • In case of simple arson, reclusion temporal to reclusion perpetua • Under Sec 5 of PD 1613, if by reason or on the occasion of simple arson, death results, the penalty is reclusion perpetua to death. Therefore, whatever may be the crime may be, if by reason of

CRIMINAL LAW 2

said arson, death results, it will aggravate the crime of arson and the homicide will be absorbed in the arson.

MALICIOUS MISCHIEF Art. 327. Who are liable for malicious mischief. — Any person who shall deliberately cause the property of another any damage not falling within the terms of the next preceding chapter shall be guilty of malicious mischief.

Art. 328. Special cases of malicious mischief. — Any person who shall cause damage to obstruct the performance of public functions, or using any poisonous or corrosive substance; or spreading any infection or contagion among cattle; or who cause damage to the property of the National Museum or National Library, or to any archive or registry, waterworks, road, promenade, or any other thing used in common by the public, shall be punished: 1. By prision correccional in its minimum and medium periods, if the value of the damage caused exceeds 1,000 pesos; 2. By arresto mayor, if such value does not exceed the abovementioned amount but it is over 200 pesos; and 3. By arresto menor, in such value does not exceed 200 pesos.

Art. 329. Other mischiefs. — The mischiefs not included in the next preceding article shall be punished: 1. By arresto mayor in its medium and maximum periods, if the value of the damage caused exceeds 1,000 pesos; 2. By arresto mayor in its minimum and medium periods, if such value is over 200 pesos but does not exceed 1,000 pesos; and 3. By arresto menor or fine of not less than the value of the damage caused and not more than 200 pesos, if the amount involved does not exceed 200 pesos or cannot be estimated.

Malicious Mischief- is the willful damaging of another’s property for the sake of causing damage due to hate, revenge or other evil motive.

If the intention of the offender is to cause damage in the property of another, by any means outside arson, is malicious mischief.

It is a crime which can only be committed by means of intent. There must be deliberate intent to cause damage to the property of another, because if there is no intent to cause damage in the property, the liability will be damages only; civil liability and not criminal liability.

Sample problem: A and B were fighting, and in the course of their fight, A fell on the floor and the floor was damaged. The liability will only be a civil action for damages.

Special cases of Malicious Mischief: 1. Causing damage to obstruct the performance of public functions;


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2. 3. 4.

Using poisonous or corrosive substances Spreading any infection or contagion among cattle Causing damage to the property of the National Library or to any archive or registry, waterworks, road, promenade, or any other thing used in common by public

Art. 330. Damage and obstruction to means of communication. — The penalty of prision correccional in its medium and maximum periods shall be imposed upon any person who shall damage any railway, telegraph or telephone lines. If the damage shall result in any derailment of cars, collision or other accident, the penalty of prision mayor shall be imposed, without prejudice to the criminal liability of the offender for the other consequences of his criminal act. For the purpose of the provisions of the article, the electric wires, traction cables, signal system and other things pertaining to railways, shall be deemed to constitute an integral part of a railway system.

Art. 331. Destroying or damaging statues, public monuments or paintings. — Any person who shall destroy or damage statues or any other useful or ornamental public monument shall suffer the penalty of arresto mayor in its medium period to prision correccional in its minimum period. Any person who shall destroy or damage any useful or ornamental painting of a public nature shall suffer the penalty of arresto menor or a fine not exceeding 200 pesos, or both such fine and imprisonment, in the discretion of the court.

Chapter Ten EXEMPTION FROM CRIMINAL LIABILITY IN CRIMES AGAINST PROPERTY Art. 332. Persons exempt from criminal liability. — No criminal, but only civil liability, shall result from the commission of the crime of theft, swindling or malicious mischief committed or caused mutually by the following persons: 1. Spouses, ascendants and descendants, or relatives by affinity in the same line. 2. The widowed spouse with respect to the property which belonged to the deceased spouse before the same shall have passed into the possession of another; and 3. Brothers and sisters and brothers-in-law and sistersin-law, if living together. The exemption established by this article shall not be applicable to strangers participating in the commission of the crime.

1st Act Q:In the Case of Carungcong vs People, the son in law a Japanese National , by means of deceit made his mother in law sign a SPA, said SPA was used to sell the property of Tagaytay. The mother died without receiving the proceeds of the sale. The daughter of the mother wanted to file a case against the son-in law. Note that the wife of the Japanese national is already deceased. Does article apply in this case where the crime committed is estafa even if the wife of the Japanese National is already dead?

CRIMINAL LAW 2 A: The relationship by affinity is still existing. The purpose is to ensure harmony within the family. Article 332 will still apply. The Son in law may be prosecuted. The crime is estafa through falsification of public document. The crime committed is the complex crime of estafa through falsification of public document. Article 332 will not apply though there is a relationship because the crime is already complexed. Article 332, paramours, mistresses, are within the meaning of wives. Step fathers- ascendants, step childrendescendants.

Title Eleven CRIMES AGAINST CHASTITY Chapter One ADULTERY AND CONCUBINAGE Art. 333. Who are guilty of adultery. — Adultery is committed by any married woman who shall have sexual intercourse with a man not her husband and by the man who has carnal knowledge of her knowing her to be married, even if the marriage be subsequently declared void. Adultery shall be punished by prision correccional in its medium and maximum periods. If the person guilty of adultery committed this offense while being abandoned withoutjustification by the offended spouse, the penalty next lower in degree than thatprovided in the next preceding paragraph shall be imposed.

Offender: legally married woman Offended party: husband To whom shall the case be filed: Wife and Lover Who shall file: only by the offended husband. Adultery is a private crime. It can only be prosecuted by the offended spouse. Without the complaint filed by the offended spouse, no crime. • If the lover does not know that the woman is married, still the husband should file the case on both of them. it is a matter of defense only on the lover. So, there are cases where only one is convicted and the other one is acquitted. The wife is convicted and the lover is acquitted • If adultery is abandoned by her husband without justification, mitigated • Adultery is a crime of consequence, so there is no attempted or frustrated stage. It is always in the consummated stage. • Adultery may be proven by circumstantial evidence. o For example, the husband was working in Saudi for 10 years, and upon reaching home, he sees his wife pregnant, there is adultery except if the wife is raped.

Art. 334. Concubinage. — Any husband who shall keep a mistress in the conjugal dwelling, or shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place, shall be punished by prision correccional in its minimum and medium periods.The concubine shall suffer the penalty of destierro.

Elements of concubinage:


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1. 2.

3.

The man must be married That he committed any of the following acts: a. Keeping a mistress in the conjugal dwelling; b. H a v i n g s e x u a l i n t e r c o u r s e u n d e r scandalous circumstances; c. Cohabiting with her in any other place The woman must know that the man must be married

1st Act: the conjugal dwelling is the house of the husband 2nd Act: the best witnesses are the neighbors of the husband. It must be in such a manner that the neighbors are shocked.

Just like adultery, concubinage is a private crime. It cannot be prosecuted if the offended spouse will not file a complaint against the offender spouse. The wife must also prosecute both the husband and the concubine. It is a matter of defense on the concubine that she does not know the husband is married.

The penalty for the concubine is destierro. RAPE IS ALREADY REPEALED Art. 336. Acts of lasciviousness. — Any person who shall commit any act of lasciviousness upon other persons of either sex, under any of the circumstances mentioned in the preceding article, shall be punished by prision correccional.

Acts of lasciviousness- acts committed with unchaste design and done under circumstances of rape. As it is done under circumstances of rape, so the offender may be any person, for example a man touching the private parts of another man.

Elements: 1. T h a t t h e o f f e n d e r c o m m i t s a n y a c t o f lasciviousness or lewdness; 2. That the act of lasciviousness is committed against a person of either sex; 3. That it is done under any of the following circumstances: a. Using force or intimidation b. When the offended party is deprived of reason or otherwise unconscious c. By means of fraudulent machination or grave abuse of authority d. When the offended party is under 12 years of age or demented

Chapter Three SEDUCTION, CORRUPTION OF MINORS AND WHITE SLAVE TRADE Art. 337. Qualified seduction. — The seduction of a virgin over twelve years and under eighteen years of age, committed by any person in public authority, priest, home-servant, domestic, guardian, teacher, or any person who, in any capacity, shall be entrusted with the education or custody of the woman seduced,

CRIMINAL LAW 2 shall be punished by prision correccional in its minimum and medium periods. The penalty next higher in degree shall be imposed upon any person who shall seduce his sister or descendant, whether or not she be a virgin or over eighteen years of age. Under the provisions of this Chapter, seduction is committed when the offender has carnal knowledge of any of the persons and under the circumstances described herein.

In one case, the woman committed sexual congress with a married man because the man promised that he will marry the woman. The SC said that there is no seduction. The fact that the woman knows that the man is married, the man cannot marry her. There is no deceit.

Two kinds of qualified seduction: 1. Seduction of a virgin over 12 years of age and under 18 years of age by persons who abuse their authority or confidence reposed in them 2. Seduction of a sister by her brother or descendant by her ascendant, regardless of her age and reputation.

In the 1st kind is the seduction of a virgin 1. Committed by a public officer, a domestic servant, a priest, teacher, guardian or any person who has custody over the person 2. In this case, the elements are: a. The offended party must be a virgin b. She must be over 12 and under 18 c. The offender is a priest, domestic servant, teacher, guardian d. The offender had sexual intercourse with her e. There is abuse of authority, confidence or relationship on the part of the offender

Virginity does not refer to physical virginity. It would suffice that the woman is not married, she is single and living a chaste life. The law presumes that she is a virgin. The offender is any person, public authority, priest, guardian

Note: sexual intercourse is an element of any kind of seduction. In the 2nd case: Virginity does not matter, even if the said sister or descendant is a married woman. Likewise, age does not matter. There can still be a seduction of a sister or descendant. There must be an element of sexual intercourse and committed in abuse of authority.

Art. 338. Simple seduction. — The seduction of a woman who is single or a widow of good reputation, over twelve but under eighteen years of age, committed by means of deceit, shall be punished by arresto mayor.

In case of simple seduction, the offended party must be a WOMAN who is single or widow. Deceit- the offended party gave herself to the man because of the latter’s promise.

Sample Problem: In order to have sexual congress with the woman, the man promised to marry the man. Crime committed is seduction.


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Art. 339. Acts of lasciviousness with the consent of the offended party. — The penalty of arresto mayor shall be imposed to punish any other acts of lasciviousness committed by the same persons and the same circumstances as those provided in Articles 337 and 338. This is under circumstances of seduction. Offender: Man Offended Party: woman

Under this circumstance, the acts of lasciviousness are committed through: a. Abuse of authority b. Abuse of confidence c. Abuse of relationship d. Means of deceit

Art. 340. Corruption of minors. — Any person who shall promote or facilitate the prostitution or corruption of persons underage to satisfy the lust of another, shall be punished by prision mayor, and if the culprit is a pubic officer or employee, including those in government-owned or controlled corporations, he shall also suffer the penalty of temporary absolute disqualification. (As amended by Batas Pambansa Blg. 92).

Art. 341. White slave trade. — The penalty of prision mayor in its medium and maximum period shall be imposed upon any person who, in any manner, or under any pretext, shall engage in the business or shall profit by prostitution or shall enlist the services of any other for the purpose of prostitution (As amended by Batas Pambansa Blg. 186.)

Chapter Four ABDUCTION Art. 342. Forcible abduction. — The abduction of any woman against her will and with lewd designs shall be punished by reclusion temporal. The same penalty shall be imposed in every case, if the female abducted be under twelve years of age. Art. 343. Consented abduction. — The abduction of a virgin over twelve years and under eighteen years of age, carried out with her consent and with lewd designs, shall be punished by the penalty of prision correccional in its minimum and medium periods.

Forcible abduction- taking away of a woman against her will with lewd design. Woman can be any person. Age, virginity, civil status is not material. For as long as the taking away is done with lewd design and against her will. • note that sexual intercourse is not an element. If by reason of the forcible abduction, the man had sexual intercourse with the woman, it may result in a complex crime of rape with forcible abduction.

CRIMINAL LAW 2

SAMPLE PROBLEM: 1. X is a turned down suitor of A. X forcibly took A, who was sitting in the door step of her house. X professed his love to A. However, A did not accept him so X raped him 7 times within 7 days. How many crimes are committed? What are the crimes committed? The crimes committed by X are 7 crimes: 1 crime forcible abduction with rape and 6 crimes of rape. Separate and distinct from each other. • Note that only 1 forcible abduction is necessary and only 1 rape is necessary to bring about complex crime of forcible abduction with rape. The other rapes are separate and distinct from the crime of rape

In the same case, the woman was inside the house of the man. The man attempted to rape the woman but the woman was able to run away. There is no crime of forcible abduction with attempted rape. The attempt to rape the woman is the manifestation of the lewd design which is an element of forcible abduction.

2.

CONSENTED ABDUCTION: Elements: 1. The woman must be a virgin 2. She must be over 12 years 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.

This time, the offended party consented to the taking away. But take note of the age (12-18). This is what makes the crime of abduction.

Sample Problem The girl was 15 and the boyfriend was 25. The said boyfriend was able to take away the girl with her consent. The parents of the girl filed a case. Per Ma’am, she was able to handle a similar case where the girl was 16 and the man was above 18. The parents of the girl do not like the man so the lovers eloped and lived in the house of the man. The mother filed a case of consented abduction. During the P.I., the said girl loved the man and even if the mother will take her away from the man, she will always return to the man. Also, the woman has keys of the house of the man. Per ma’am the man was not at fault because it was always the woman who would go to the man’s house. So she dismissed the case.

In qualified seduction and consented abduction, acts of lasciviousness in circumstances of seduction: INSTANCES WHERE VIRGINITY IS AN ELEMENT

Note: In consented abduction, sexual intercourse is not an element, so if after the woman ran away with the man, yet she does not want to have sexual intercourse but the man forced her and was able to succeed in having sexual intercourse, the crime committed is consented abduction with rape.

Chapter Five PROVISIONS RELATIVE TO THE PRECEDING


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CHAPTERS OF TITLE ELEVEN Art. 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness. — The crimes of adultery and concubinage shall not be prosecuted except 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, nor, in any case, if he shall have consented or pardoned the offenders. The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by the above named persons, as the case may be. In cases of seduction, abduction, acts of lasciviousness and rape, the marriage of the offender with the offended party shall extinguish the criminal action or remit the penalty already imposed upon him. The provisions of this paragraph shall also be applicable to the co-principals, accomplices and accessories after the fact of the above-mentioned crimes.

Art. 345. Civil liability of persons guilty of crimes against chastity. — Person guiltyof rape, seduction or abduction, shall also be sentenced: 1. To indemnify the offended woman. 2. To acknowledge the offspring, unless the law should prevent him from so doing. 3. In every case to support the offspring. The adulterer and the concubine in the case provided for in Articles 333 and 334 may also be sentenced, in the same proceeding or in a separate civil proceeding, to indemnify for damages caused to the offended spouse.

Art. 346. Liability of ascendants, guardians, teachers, or other persons entrusted with the custody of the offended party. — The ascendants, guardians, curators, teachers and any person who, by abuse of authority or confidential relationships, shall cooperate as accomplices in the perpetration of the crimes embraced in chapters, second, third and fourth, of this title, shall be punished as principals.

Teachers or other persons in any other capacity entrusted with the education and guidance of youth, shall also suffer the penalty of temporary special disqualification in its maximum period to perpetual special disqualification. Any person falling within the terms of this article, and any other person guilty of corruption of minors for the benefit of another, shall be punished by special disqualification from filling the office of guardian.

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

CRIMINAL LAW 2 legitimate child. — The simulation of births and the substitution of one child for another shall be punished by prision mayor and a fine of notexceeding 1,000 pesos. The same penalties shall be imposed upon any person who shall conceal or abandonany legitimate child with intent to cause such child to lose its civil status. Any physician or surgeon or public officer who, in violation of the duties of hisprofession or office, shall cooperate in the execution of any of the crimes mentioned in the two next preceding paragraphs, shall suffer the penalties therein prescribed and also the penalty of temporary special disqualification.

Three acts punished under Art. 347: 1. Simulation of birth 2. Substitution of a child 3. Concealing or abandoning any legitimate child with intent to cause such child to lose its civil status

Simulation of birth- takes place when the woman pretends to be pregnant when in fact she is not and on the day of the delivery, takes the child of another as her own.

Sample problem: 1. A was a pregnant. She told the midwife that she does not want the baby. The midwife said that she knew a couple who wanted a child. This couple took the baby and registered the child as their own. What are the crimes committed and who are liable?

Chapter Two ILLEGAL MARRIAGES Art. 349. Bigamy. — The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.

Sample problem: A and B are married. B, the husband fell in love with another woman, and married the woman thereafter. It is now a bigamous married. A bigamous marriage is an otherwise valid marriage, except for the fact that there is a subsisting marriage.

Bigamous marriage through reckless imprudence- in the book, there is such crime because a woman contracted a marriage because she believed the statements of the relatives of her former spouse that the latter is already dead. However, such ruling was erroneous. There must be a declaration of presumptive death.

2.

In substitution of a child, the classic example is MARA and CLARA.

3.

In the 3rd act, it is necessary that the child is legitimate, not illegitimate. The offender conceals or abandons the legitimate child and the intention of the offender is to lose the child’s civil status.

Illegal marriage- marriage contracted without the requisites of the law. If a person contracted marriage if knowledge of the infirmities, liable under 350

All of them are all liable for simulation of birth. The said couple pretended that the child is their own child. In that case, said child lost its original status.

Sample problem: 1. The offender abandons the child in the forest. The child is one month old. Later however the child was rescued. The crime committed was attempted parricide, because it can be seen that there was intent to kill. 2.

Art. 350. Marriage contracted against provisions of laws. — The penalty of prisioncorreccional in its medium and maximum periods shall be imposed upon any person who, without being included in the provisions of the next proceeding article, shall have not been complied with or that the marriage is in disregard of a legal impediment. If either of the contracting parties shall obtain the consent of the other by means of violence, intimidation or fraud, he shall be punished by the maximum period of the penalty provided in the next preceding paragraph.

heirs; otherwise, the penalty of prision correccional in its medium and maximum periods shall be imposed.

A couple gave birth to its 13th child. They are very poor. So the couple placed the baby in the gate of a well-known family. What crimes are committed? -Crime committed abandonment of the legitimate child with the intent to lose its civil status. There is no other intent of the parents but to lose its status as a poor child.

Art. 348. Usurpation of civil status. — The penalty of prision mayor shall be imposed upon any person who shall usurp the civil status of another, should he do so for the purpose of defrauding the offended part or his


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The solemnizing officer is liable also criminally. Art. 351. Premature marriages. — Any widow who shall marry within three hundred and one day from the date of the death of her husband, or before having delivered if she shall have been pregnant at the time of his death, shall be punished by arresto mayor and a fine not exceeding 500 pesos. The same penalties shall be imposed upon any woman whose marriage shall have been annulled or dissolved, if she shall marry before her delivery or before the expiration of the period of three hundred and one day after the legal separation.

Person liable: 1. A woman who married within 301 days from the death of her husband, or before delivery of her baby 2. A woman whose marriage having been annulled or dissolved, married before delivery or before

CRIMINAL LAW 2

expiration of the period of 301 days after the date of legal separation.

The requirement that the marriage must be done within 301 days must only apply if the woman is not pregnant. If the woman is pregnant, it is only at the time of the delivery of the baby. After the baby is delivered, she can already marry. Why is it that the law requires that the baby must be first delivered, or it must be 301 days? This is to ensure that there is no doubt as to the paternity of the child, otherwise there would be confusion.

Art. 352. Performance of illegal marriage ceremony. — Priests or ministers of any religious denomination or sect, or civil authorities who shall perform or authorize any illegal marriage ceremony shall be punished in accordance with the provisions of the Marriage Law.

Title Thirteen CRIMES AGAINST HONOR Chapter One LIBEL Section One. — Definitions, forms, and punishment of this crime.

Art. 353. Definition of libel. — A libel is 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 dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.

Art. 354. Requirement for publicity. — 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 proceedings 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. Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party. Art. 356. Threatening to publish and offer to present such publication for a compensation. — The penalty of arresto mayor or a fine from 200 to 2,000 pesos, or both, shall be imposed upon any person who threatens another to publish a libel concerning him or the parents, spouse, child, or other members of the family of the latter or upon anyone who shall offer to prevent the publication of such libel for a compensation or money consideration.


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Art. 357. Prohibited publication of acts referred to in the course of official proceedings. — The penalty of arresto mayor or a fine of from 20 to 2,000 pesos, or both, shall be imposed upon any reporter, editor or manager or a newspaper, daily or magazine, who shall publish facts connected with the private life of another and offensive to the honor, virtue and reputation of said person, even though said publication be made in connection with or under the pretext that it is necessary in the narration of any judicial or administrative proceedings wherein such facts have been mentioned. Art. 358. Slander. — Oral defamation shall be punished by arresto mayor in its maximum period to prision correccional in its minimum period if it is of a serious and insulting nature; otherwise the penalty shall be arresto menor or a fine not exceeding 200 pesos. Art. 359. Slander by deed. — The penalty of arresto mayor in its maximum period to prision correccional in its minimum period or a fine ranging from 200 to 1,000 pesos shall be imposed upon any person who shall perform any act not included and punished in this title, which shall cast dishonor, discredit or contempt upon another person. If said act is not of a serious nature, the penalty shall be arresto menor or a fine not exceeding 200 pesos.

Forms of libel: 1. Written defamation 2. Oral defamation 3. Slander by deed 4. Defamatory acts

Elements of libel: 1. There must be an imputation or allegation of a crime, or a vice of defect, real or imaginary, or any act or omission, condition, status or circumstance which tend to dishonor or discredit a natural or juridical person. 2. That there must be a publication of these imputation; 3. The identity of the person defamed must be established or identified; 4. The existence of malice.

Publication- satisfied the moment that a 3rd person has heard or read the libelous statement, even if the person pertained has not read it. So the basis is that a 3rd person has heard or read the libelous statement.

Identity of the person- must be identified, not necessary that the person must be named. It suffices that the person is described and identifiable by a third person.

Malice- malice is presumed as a rule for every statements made. However in defamatory statements, if the offender cannot state any good intention for stating defamatory statements, the law presumes malice. Prosecution need not prove malice because the law presumes malice. This is MALICE IN LAW.

Instances:

CRIMINAL LAW 2 Malice in fact- refers to privilege in communication, refers to private communication, reports, or any acts performed by a public officer. In this case the law does not presumes malice. Malice must be proven by the prosecution otherwise there would be acquittal

Libel can be committed through the following: 1. Writing 2. Printing 3. Lithography 4. Engraving 5. Radio 6. Phonograph 7. Painting 8. Theatrical exhibition 9. Cinematographic exhibition 10. Or any similar means

• • •

If libel is committed, the liability is prision correctional. TV is within the phrase any similar means. If amplifier or microphone was used for everyone to hear, the crime committed is slander or oral defamation, but not libel.

Venue: RPC provides that even if the crime is prision correccional, it must be filed before the RTC where the article was printed or first published, or RTC where any of the offended party is residing. Note that this is a substantive law. It is not found in the Rules of Court If the offended party is a public officer and is working in Manila, it must be filed before RTC of Manila or where the article was first published. If the public officer is not working in Manila, it shall be filed in the RTC where he is working at the time of the commission of the offense or where the libelous article was printed or was first published. If private individual is the offended party, RTC of the place where the private individual resides at the time of the actual commission of the offense or where the libelous material was published

ORAL DEFAMATION/SLANDER 1. Grave oral defamation- when serious and insulting and nature.

Factors to consider: not only the grammar and meaning, but also the: a. Personal relations of the accused and the offended party b. Facts and Circumstances surrounding the case c. Social standing and position of the offended party.

PUTANG INA MO is not a slanderous remark; it is merely an expression of the Filipino People. (Pader vs People) 2. Simple slander •

SLANDER BY DEED Slander by deed- refers to acts not words, with the intent to defame the person. It can also be (a)serious, grave slander by deed, or (b) simple slander by deed. • A priest was slapped by a person, serious slander by deed

Section Two. — General provisions


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Art. 360. Persons responsible. — Any person who shall publish, exhibit, or cause the publication or exhibition of any defamation in writing or by similar means, shall be responsible for the same. The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof. The criminal and civil action for damages in cases of written defamations as provided for in this chapter, shall be filed simultaneously or separately with the court of first instance of the province or city where the libelous article is printed and first published or where any of the offended parties actually resides at the time of the commission of the offense: Provided, however, That where one of the offended parties is a public officer whose office is in the City of Manila at the time of the commission of the offense, the action shall be filed in the Court of First Instance of the City of Manila, or of the city or province where the libelous article is printed and first published, and in case such public officer does not hold office in the City of Manila, the action shall be filed in the Court of First Instance of the province or city where he held office at the time of the commission of the offense or where the libelous article is printed and first published and in case one of the offended parties is a private individual, the action shall be filed in the Court of First Instance of the province or city where he actually resides at the time of the commission of the offense or where the libelous matter is printed and first published: Provided, further, That the civil action shall be filed in the same court where the criminal action is filed and vice versa: Provided, furthermore, That the court where the criminal action or civil action for damages is first filed, shall acquire jurisdiction to the exclusion of other courts: And, provided, finally, That this amendment shall not apply to cases of written defamations, the civil and/or criminal actions which have been filed in court at the time of the effectivity of this law. Preliminary investigation of criminal action for written defamations as provided for in the chapter shall be conducted by the provincial or city fiscal of the province or city, or by the municipal court of the city or capital of the province where such action may be instituted in accordance with the provisions of this article. No criminal action for defamation which consists in the imputation of a crime which cannot be prosecuted de oficio shall be brought except at the instance of and upon complaint expressly filed by the offended party. (As amended by R.A. 1289, approved June 15, 1955, R.A. 4363, approved June 19, 1965).

Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be given in evidence to the court and if it appears that the matter charged as libelous is true, and, moreover, that it was published with good motives and for justifiable ends, the defendants shall be acquitted. Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the imputation shall have been made

CRIMINAL LAW 2 against Government employees with respect to facts related to the discharge of their official duties. In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.

Art. 362. Libelous remarks. — Libelous remarks or comments connected with the matter privileged under the provisions of Article 354, if made with malice, shall not exempt the author thereof nor the editor or managing editor of a newspaper from criminal liability.

Chapter Two INCRIMINATORY MACHINATIONS Art. 363. Incriminating innocent person. — Any person who, by any act not constituting perjury, shall directly incriminate or impute to an innocent person the commission of a crime, shall be punished by arresto menor.

Act of directly incriminating or imputes to an innocent person the commission of the crime. It is necessary that it must not be made on an affidavit, because if it is through an affidavit, it will be perjury. It will only arise if it will not amount to (a) perjury or (b) sec 29 of RA 9165

Sample problem • A’s ballpen was lost. B took it and placed it in the bag of C so that C will be liable for theft. B committed incriminating innocent person. • In the case of dangerous drugs, the law that will govern is sec 29 of RA 9165, or planting of evidence. Person found guilty of planting evidence, regardless of quantity or purity of the dangerous drugs shall suffer the penalty of death.

Art. 364. Intriguing against honor. — The penalty of arresto menor or fine not exceeding 200 pesos shall be imposed for any intrigue which has for its principal purpose to blemish the honor or reputation of a person.

Title Fourteen QUASI-OFFENSES Sole Chapter CRIMINAL NEGLIGENCE Art. 365. Imprudence and negligence. — Any person who, by reckless imprudence, shall commit any act which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in its maximum period to prision correccional in its medium period; if it would have constituted a less grave felony, the penalty of arresto mayor in its minimum and medium periods shall be imposed; if it would have constituted a light felony, the penalty of arresto menor in its maximum period shall be imposed. Any person who, by simple imprudence or negligence, shall commit an act which would otherwise constitute a grave felony, shall suffer the penalty of arresto mayor in its medium and maximum periods; if it would have constituted a less serious felony, the penalty of arresto mayor in its minimum period shall be imposed. When the execution of the act covered by this article shall have only resulted in damage to the property of


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another, the offender shall be punished by a fine ranging from an amount equal to the value of said damages to three times such value, but which shall in no case be less than twenty-five pesos. A fine not exceeding two hundred pesos and censure shall be imposed upon any person who, by simple imprudence or negligence, shall cause some wrong which, if done maliciously, would have constituted a light felony. In the imposition of these penalties, the court shall exercise their sound discretion, without regard to the rules prescribed in Article sixty-four. The provisions contained in this article shall not be applicable: 1. When the penalty provided for the offense is equal to or lower than those provided in the first two paragraphs of this article, in which case the court shall impose the penalty next lower in degree than that which should be imposed in the period which they may deem proper to apply. 2. When, by imprudence or negligence and with violation of the Automobile Law, to death of a person shall be caused, in which case the defendant shall be punished by prision correccional in its medium and maximum periods. Reckless imprudence consists in voluntary, but without malice, doing or falling to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing of 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 in which the damage impending to be caused is not immediate nor the danger clearly manifest. The penalty next higher in degree to those provided for in this article shall be imposed upon the offender who fails to lend on the spot to the injured parties such help as may be in this hand to give. (As amended by R.A. 1790, approved June 21, 1957).

Take note of the case of Ivler vs Modesto. Reckless imprudence or negligence is the crime itself. Hence, once committed or acquitted of a specific act of reckless imprudence, the accused may not be prosecuted again for that same act. For the essence of the quasi offense of criminal negligence under Art 365 of the RPC lies in the execution of an imprudent or negligent act that if intentionally done, would be punishable as a felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine the penalty; it does not qualify the substance of the offense. And, as the careless act is single, whether the injurious result should affect one person or several persons, the offense (criminal negligence) remains one and the same, and cannot be split into different crimes and prosecutions. 1st case: reckless imprudence resulting to slight physical injuries 2nd case: reckless imprudence resulting to homicide and damage to property

CRIMINAL LAW 2 •

•

One quasi-offense cannot give rise to another quasi-offense. Note simple negligence is not a means to commit a crime. They are crimes by themselves.

R.A 9995 Anti-Voyeurism Law Acts Punished: a. Taking photo or video coverage of a person or a group of persons performing sexual act or any similar activity or to capture an image of a private area of a person such as the naked or undergarment clad genitals, public area, buttocks, or female breasts without the consent of the persons involved and under circumstances in which the person/s has/have a reasonable expectation of privacy b. To copy or reproduce, or to cause to be copied or reproduced such photo or video or recording of sexual act or any similar activity with or without consideration c. To sell or distribute or to cause to be sold or distributed , such photo or video or recording of sexual act, whether the original copy or reproduction thereof; d. To publish or broadcast, or to cause to be published or broadcast whether in print or broadcast media, or show or exhibit the photo or video coverage or recordings of such sexual act or any similar activity through VCD/DVDV, internet, cellular phones and other similar means or device.

Sample problem: A and B are having sex. B proposed to video their sexual act to which A consented. There is no crime. However, if B later on reproduced the video, B is still liable. Penalty: imprisonment of not less than 3 years but not more than 7 years AND fine of not less than 100k but not more than 500k, or both at the discretion of the court.

RA 7877 Anti-Sexual Harassment Act Definition of Work, Education, or Training Related Sexual Harrassment - Committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said Act. (a) In a work-related or employment environment, sexual harassment is committed when: (1) The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms of conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in any way would discriminate, deprive ordiminish employment opportunities or otherwise adversely affect said employee;


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(2) The above acts would impair the employee's rights or privileges under existing labor laws; or (3) The above acts would result in an intimidating, hostile, or offensive environment for the employee.

(b) In an education or training environment, sexual harassment is committed: (1) Against one who is under the care, custody or supervision of the offender; (2) Against one whose education, training, apprenticeship or tutorship is entrusted to the offender; (3) When the sexual favor is made a condition to the giving of a passing grade, or the granting of honors and scholarships, or the payment of a stipend, allowance or other benefits, privileges, or consideration; or (4) When the sexual advances result in an intimidating, hostile or offensive environment for the student, trainee or apprentice. Any person who directs or induces another to commit any act of sexual harassment as herein defined, or who cooperates in the commission thereof by another without which it would not have been committed, shall also be held liable under this Act.

CrimRev - Garcia Notes Book 2

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