Boc Criminal Law Reviewer

TABLE OF CONTENTS

6.

CRIMINAL LAW I ......................................... 1 I.

REVISED PENAL CODE (RPC) BOOK I .... 2 A. Fundamental and General Principles In Criminal Law ................................................... 2 1. Mala in Se and Mala Prohibita .............. 2 2. Suppletory Application of RPC to Special Laws 3 3. Construction of Penal Laws ................. 4 4. Applicability and Effectivity of the Penal Code 4 5. Repeal and Amendment ........................ 8 B. Constitutional Limitations on the Power of Congress to Enact Penal Laws ..................... 9 1. No Ex Post Facto Law or Bill of Attainder 9 2. Equal Protection 9 3. Due Process 9 4. Cruel or Inhuman Punishment ............ 9 C. FELONIES ................................................... 10 1. Felonies and Criminal Liability........... 10 2. Circumstances Affecting Criminal Liability 25 3. Persons Liable and Degree of Participation 72 D. PENALTIES................................................. 88 Principles 88 1. 88 2. Classification 89 3. Duration and Effects ........................... 90 4. Application 95 5. Graduation of Penalties ....................... 99 6. Accessory Penalties ............................ 101 7. Computation of Penalties.................. 104 8. Special Rules 106 9. Execution and Service of Penalties . 107 10. Suspension in Case of Insanity or Minority 115 E. Criminal and Civil Liabilities .................... 117 1. Extinction of Criminal Liabilities..... 117 2. Civil Liabilities in Criminal Cases .... 121

C.

D.

E. F.

G.

CRIMINAL LAW II ................................... 129 II. REVISED PENAL CODE (BOOK II)........ 130 A. Title I. Crimes against National Security and the Law of Nations .................................... 130 1. Crimes against National Security ..... 130 2. Crimes against the Law of Nations . 135 B. Title II. Crimes against Fundamental Laws of the State ................................................... 140 1. Article 124 – Arbitrary Detention ... 140 2. Article 125 – Delay in the Delivery of Detained Persons to the Proper Judicial Authorities 142 3. Article 126 – Delaying Release ......... 142 4. Article 127 – Expulsion ..................... 142 5. Article 128 – Violation of Domicile 143

H. I.

Article 129 – Search Warrants Maliciously Obtained, and Abuse in the Service of Those Legally Obtained .. 143 7. Article 130 – Searching Domicile without Witnesses ............................... 143 8. Article 131 – Prohibition, Interruption and Dissolution of Peaceful Meetings 144 9. Article 132 – Interruption of Religious Worship 144 10. Article 133 – Offending the Religious Feelings 145 Title III. Crimes against Public Order ..... 148 1. Chapter I: Rebellion, Coup d’etat, Sedition and Disloyalty....................... 149 2. Chapter II: Crimes against Popular Representation 153 3. Chapter III: Illegal Assemblies and Associations 154 4. Chapter IV: Assault upon and Resistance and Disobedience to, Persons in Authority and Their Agents 156 5. Chapter V: Public Disorders ............. 158 6. Chapter VI: Evasion of Service of Sentence 160 7. Chapter VII: Commission of Another Crime during Service of Penalty Imposed for Another Previous Offense 161 Title IV. Crimes against Public Interest .. 168 1. Acts of Counterfeiting........................ 168 2. Acts of Forgery 171 3. Acts of Falsification ............................ 171 4. Other Falsities 176 Title V. Crimes Relative to Opium and Other Prohibited Drugs............................. 183 Title VI. Crimes against Public Morals ... 189 1. Chapter I: Gambling and Betting ..... 189 2. Chapter II: Offenses against Decency and Good Customs............................. 192 Title VII. Crimes Committed by Public Officers ......................................................... 198 1. Chapter I: Preliminary Provisions .... 198 2. Chapter II: Malfeasance and Misfeasance in Office ......................... 199 3. Chapter III: Frauds and Illegal Exactions and Transactions .............. 207 4. Chapter IV: Malversation of Public Funds or Property ............................... 209 5. Chapter V: Infidelity of Public Officers 212 6. Chapter VI: Other Offenses or Irregularities by Public Officers ........ 214 Title VIII. Crimes against Persons ........... 219 1. Chapter I: Destruction of Life .......... 219 2. Chapter II: Physical Injuries .............. 226 Title IX. Crimes against Personal Liberty and Security .................................................. 240 1. Chapter I: Crimes against Liberty..... 240

2. 3. J.

K.

L.

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Chapter II: Crimes against Security . 245 Chapter III: Discovery and Revelation of Secrets 251 Title X. Crimes against Property .............. 261 1. Chapter I: Robbery in General ......... 261 2. Chapter II: Brigandage....................... 267 3. Chapter III: Theft ............................... 268 4. Chapter IV: Usurpation ..................... 271 5. Chapter V: Culpable Insolvency ...... 272 6. Chapter VI: Swindling and Other Deceits 272 7. Chapter VII: Chattel Mortgage ........ 281 8. Chapter VIII: Arson and Other Crimes Involving Destruction........................ 282 9. Chapter IX: Malicious Mischief ....... 283 10. Chapter X: Exemption from Criminal Liability 284 Title XI. Crimes against Chastity ............. 285 1. Article 333 – Adultery........................ 285 2. Article 334 – Concubinage ................ 286 3. Article 336 - Acts of Lasciviousness 287 4. Article 337 - Qualified Seduction..... 288 5. Article 338 - Simple Seduction ......... 290 6. Article 339 - Acts of Lasciviousness with the Consent of the Offended Party . 290 7. Article 340 - Corruption of Minors . 290 8. Article 341 - White Slave Trade ....... 291 9. Article 342 - Forcible Abduction ..... 291 10. Article 343 - Consented Abduction. 292 11. Article 344 - Prosecution of Private Offenses 292 12. Article 345: Civil Liability of Persons Guilty of Crimes Against Chastity ... 294 13. Article 346 – Liability of Ascendants, Guardians, Teachers and Other Persons Entrusted with the Custody of the Offended Party 294 Title XII. Crimes against the Civil Status of Persons ......................................................... 296 1. Chapter I: Simulation of Births and Usurpation of Civil Status ................. 296 2. Chapter II: Illegal Marriages ............. 297 Title XIII. Crimes against Honor ............ 299 1. Chapter I: Libel 299 2. Chapter II: Incriminatory Machinations 305 Title XIV. Quasi-Offenses ........................ 307 1. Article 365 - Imprudence and Negligence 307

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CRIMINAL LAW I Criminal Law

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I. REVISED PENAL CODE (RPC) BOOK I

1. Mala in Se and Mala

*From here on, all Articles refer to the RPC, unless otherwise indicated.

MALA IN SE (“evil in itself”)

A. Fundamental and General Principles In Criminal Law

Prohibita

A crime or an act that is inherently immoral, such as murder, arson or rape. [Black’s Law Dictionary, 9th Ed.] When the acts are inherently immoral, they are mala in se, even if punished under special law, like plunder which requires proof of criminal intent. [Estrada v. Sandiganbayan, G.R. No. 148560 (2001); Garcia v. Court of Appeals, G.R. No. 157171 (2006); Ysidoro v. People, G.R. No. 192330 (2012)]

Definition of Criminal Law That branch of public substantive law which defines crimes, treats of their nature, and provides for their punishment. [Reyes, citing cyc 129] A crime is an act committed or omitted in violation of a public law forbidding or commanding it. It a generic term used to refer to a wrongdoing punished by either the RPC or a special law. [Ortega] Felonies are crimes punished under the RPC, while offenses are crimes punished under the special law. The Philippines does not have common law crimes. Therefore, even though an act or omission is wrong per se, there is no criminal liability if the act is not punishable by a particular provision in penal law or special penal law. There is no crime when there is no law punishing the same (Nullum crimen nulla poena sine lege).

Where malice is a factor, good faith is a defense.

MALA PROHIBITA (“prohibited evil”)

An act that is a crime merely because it is prohibited by statute, although the act itself is not necessarily immoral. [Black’s Law Dictionary, 9th Ed.]

General Rule: Performance of the act itself will constitute the offense. Dolo is not required in crimes mala prohibita.

In those crimes which are mala prohibita, the act alone irrespective of the intent, constitutes the offense. Good faith and absence of criminal intent are not valid defenses in crimes mala prohibita.

Exceptions: a.

However, not every law punishing an act or omission may be valid as a criminal law. If the law punishing an act is ambiguous, it is null and void on its face. Sources of Criminal Law: a. The Revised Penal Code (Act No. 3815) – enacted January 1, 1932; based on the Spanish Penal Code, US Penal Code, and Philippine Supreme Court decisions. b. Special penal laws c. Penal Presidential Decrees issued during Martial Law.

People v. Landicho [G.R. No. 116600 (1996)] – If the act is done in order to comply with government policies. An individual is not criminally liable despite a law prohibiting carrying of firearms if he was authorized to buy and collect guns, then sell to authorities later on.

b. US v. Samson [G.R. No. 5807 (1910)] – Civilian guards acting in good faith in carrying firearms with no intention of committing an offense were able to claim lack of intent as a defense. c. People v. Mallari [G.R. No. L-58886 (1988)] – A pending application for permanent permit to possess a firearm, and did not hide possession of firearms in front of authorities was also free from liability because of good faith. d. People v. Lucero [G.R. No. 97936 (1995)]– When the accused was given authority to carry a

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revolver in order to capture or kill a wanted person. Cuenca v. People [G.R. No. L-27586 (1970)] – The accused had assumed that his employer had the necessary license to possess firearm which was turned over to him while he was on duty as one of the security guards of the licensed security agency.

Mala in Se There are three stages: attempted, frustrated & consummated

A crime in the RPC can absorb a crime punishable by a special law if the latter is a necessary element of the felony defined in the Code; but a special law can never absorb a crime punishable under the RPC, because violations of the Revised Penal Code are more serious than a violation of a special law. [People v. Rodriguez, G.R. No. 13981 (1960)]

Penalty is computed on the basis of whether he is a principal offender or merely an accomplice or accessory

e.

Mala in Se

Wrong because it is prohibited by law;

Good faith is not a defense. Criminal intent is immaterial, BUT still requires intelligence & voluntariness

As to degree of accomplishment of crime Degree of accomplishment is taken into account for the punishment.

The act gives rise to a crime only when consummated.

As to mitigating and aggravating circumstances They are taken into account in imposing penalty

They are not taken into account. Degree of participation is generally not taken into account. All who participated in the act are punished to the same extent.

As to stages of execution

the

Penalty of offenders is same whether they acted as mere accomplices or accessories Generally, special laws.

Penalties may be divided into degrees and periods.

There is no such division of penalties.

2. Suppletory Application of General Rule: RPC provisions supplement the provisions of special laws. [Art. 10]

The Revised Penal Code supplies what is lacking in special laws. Examples a. Art. 39 – Imprisonment in case the person convicted cannot pay fine (Subsidiary Imprisonment) b. Art. 45 – Confiscation of instruments used in the commission of the crime

Exceptions: a.

As to degree of participation When there is more than one offender, the degree of participation of each in the commission is taken into account.

Generally, only principal is liable.

RPC to Special Laws

As to criminal intent as an element Criminal intent is an element.

principal, &

As to what laws are violated

As to use of good faith as a defense Good faith a valid defense, unless the crime is the result of culpa

stages of

As to division of penalties

As to nature

Wrong from its very nature; So serious in their effects on society as to call for condemnation of members.

No such execution

As to persons criminally liable The accomplice accessory.

Generally, the RPC.

Mala Prohibita

Mala Prohibita

Where the special law provides otherwise. [Art 10] b. When the provisions of the Code are impossible of application, either by express provision or by necessary implication, as in those instances where the provisions in question are peculiar to the Code. [Regalado] Provisions of the RPC on penalties cannot be applied to offenses punishable under special laws. Special laws do not provide a scale of penalties where a given penalty can be lowered by one or two degrees. Special laws use the term “imprisonment” instead. [Reyes]

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The stages of commission of the RPC (Attempted, Frustrated, Consummated) cannot be applied to offenses punished by special laws. An accused may be acquitted because mere attempt to commit a crime is not punishable under the special law. [US v. Basa, G.R. No. L-3540 (1907)] In the absence of contrary provision in B.P. Blg. 22, the general provisions of the RPC which, by their nature, are necessarily applicable, may be applied suppletorily. [Ladonga v. People, G.R. No. 141066 (2005)]

3. Construction of Penal Laws Strict construction against the State and liberally in favor of the accused

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c. Spanish Text of the RPC Prevails over its English Translation In the construction or interpretation of the provision of the RPC, the Spanish text is controlling, because it was approved by the Philippine Legislature in its Spanish text. [People v. Manaba, G.R. No. L-38725 (1933)]

d. Retroactive Application if Favorable to the Accused See Characteristics of Criminal Law, Prospectivity and Art. 22.

4. Applicability and Effectivity

a. Pro Reo Doctrine

of the Penal Code

Whenever a penal law is to be construed or applied and the law admits of two interpretations – one lenient to the offender and one strict to the offender, that interpretation which is lenient or favorable to the offender will be adopted.

a. General b. Territorial c. Prospective

Basis: The fundamental rule that all doubts shall be construed in favor of the accused and presumption of innocence of the accused. [Art III, Section 14(2), 1987 Constitution]

1. General Rule:

Penal statutes should be strictly construed against the State only when the law is ambiguous and there is doubt as to its interpretation. Where the law is clear and unambiguous, there is no room for the application of the rule. [People v. Gatchalian, G.R. No. 90301 (1998)]

a. Generality

Penal laws are obligatory on all persons who live or sojourn in Philippine territory, regardless of nationality, gender, or other personal circumstances, subject to the principles of public international law and to treaty stipulations. [Art. 14, NCC]

2. Excepstions: a. Treaty Stipulations

b. Equipoise Rule When the evidence of the prosecution and the defense are equally balanced, the scale should be tilted in favor of the accused in obedience to the constitutional presumption of innocence. [Ursua v. CA, G.R. No. 112170 (1996); Corpuz v. People, G.R. No. 74259 (1991)]

Art. 2. – “Except as provided in the treaties or laws of preferential application …”

Art. 14, Civil Code. – “… subject to the

principles of public international law and to treaty stipulations.” Example: Visiting Forces Agreement (VFA) is an agreement between the Philippine and US Government regarding the treatment of US Armed Forces visiting the Philippines. It was signed on Feb. 10, 1998.

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The US and Philippines agreed that: 1. US shall have the right to exercise within the Philippines all criminal and disciplinary jurisdiction conferred on them by the military law of the US over US personnel in RP; 2. US authorities exercise exclusive jurisdiction over US personnel with respect to offenses, including offenses relating to the security of the US punishable under the law of the US, but not under the laws of RP; 3. US military authorities shall have the primary right to exercise jurisdiction over US personnel subject to the military law of the US in relation to: 4. Offenses solely against the property or security of the US or offenses solely against the property or person of US personnel; and 5. Offenses arising out of any act or omission done in performance of official duty. [Reyes] Rule On Jurisdiction Under The VFA Crimes Jurisdiction Crime punishable Philippines has under Philippine laws, exclusive jurisdiction. but not under US laws Crime punishable US has exclusive under US laws, but not jurisdiction. under Philippine laws There is concurrent Crime is punishable jurisdiction, but the under both US and Philippines has Philippine laws primary jurisdiction. Crime is committed by a US personnel against US has exclusive the security and jurisdiction. property of the US alone Generally, the Philippines cannot refuse the request of the US for waiver of jurisdiction and has to approve the request for waiver except if the crime is of national importance: 1. Those crimes defined under RA 7659 (Heinous crimes) 2. Those crimes defined under RA 7610 (Child Abuse cases) 3. Those crimes defined under RA 9165 (Dangerous Drugs cases) Laws of Preferential Application R.A. No. 75 penalizes acts which would impair the proper observance by the Republic and inhabitants of the Philippines of the immunities, rights, and

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privileges of duly accredited foreign diplomatic representatives in the Philippines. General Rule: The following persons are exempt from arrest and imprisonment, and their properties are exempt from distraint, seizure and attachment: [AMS] 1. Ambassadors 2. Public Ministers 3. Domestic servant of ambassadors or ministers Exceptions: 1. The person is a citizen or inhabitant of the Philippines 2. The writ or process issued against him is founded upon a debt contracted before he entered upon such service or the domestic servant is not registered with the Department of Foreign Affairs. Note: RA 75 is not applicable when the foreign country adversely affected does not provide similar protection to our diplomatic representatives.

b. Warship Rule A warship of another country, even though docked in the Philippines, is considered an extension of the territory of its respective country. This also applies to embassies. Offenses committed in warships or embassies, though in the Philippines, are therefore not covered by the generality principle.

c. Principles of Public International Law The following persons are exempt from the provisions of the RPC: [SCAMMP] 1. Sovereigns and other heads of state 2. Charges d’ affaires. 3. Ambassadors 4. Ministers 5. Minister resident 6. Plenipotentiary [Article 31, Vienna Convention on Diplomatic Relations] Consuls, vice-consuls, and other commercial representatives of foreign nations do not possess the status of, and cannot claim the privileges and immunities accorded to ambassadors and ministers. [Wheaton, International Law, Sec. 249]

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The general rule will create a presumption of jurisdiction, and identifies upon whom the burden of proving a contrary jurisdiction belongs to.

b. Territoriality 1. General Rule: Penal laws of the country have force and effect only within its territory. It cannot penalize crimes committed outside its territory. The territory of the country is not limited to the land where its sovereignty resides but includes also its maritime and interior waters as well as its atmosphere. [Art. 2]

2. Exceptions: a. Extraterritorial crimes Punishable even if committed outside the Philippine territory. [Art. 2]

Thus, when a felony is committed on a merchant ship within Philippine territory, Philippine jurisdiction is presumed, and the accused must prove lack of jurisdiction because the felony relates to the internal management of the ship.

b. Foreign warships When the crime is committed in a war vessel of a foreign country, the nationality of the vessel will always determine jurisdiction because war vessels are part of the sovereignty of the country to whose naval force they belong. Note: The country of registry determines the nationality of the vessel, not its ownership. Thus, Filipino-owned vessel registered in China must fly the Chinese flag.

Crimes committed aboard a Philippine ship or airship [Art 2, Par. 1]

International Theories on Aerial Jurisdiction

The RPC is applied to Philippine vessels if the crime is committed while the ship is treading: 1. Philippine waters (intraterritorial), or 2. The high seas (extraterritorial)

Free Zone Theory The atmosphere over the country is free and not subject to the jurisdiction of the subjacent state, except for the protection of its national security and public order.

Requisites: 1. The ship or airship must not be within the territorial jurisdiction of another country 2. The ship or airship must be registered in the Philippines under Philippine laws

Relative Theory The subjacent state exercises jurisdiction over the atmosphere only to the extent that it can effectively exercise control thereof.

Merchant Vessels Two rules as to jurisdiction over crimes committed aboard merchant vessels while in the territorial waters of another country (i.e. a foreign vessel treading Philippine waters OR Philippine vessels treading foreign waters): 1. FRENCH RULE: It is the flag or nationality of the vessel which determines jurisdiction UNLESS the crime violates the peace and order of the host country. 2. ENGLISH RULE: the location or situs of the crime determines jurisdiction UNLESS the crime merely relates to internal management of the vessel.

Absolute Theory The subjacent state has complete jurisdiction over the atmosphere above it subject only to the innocent passage by air craft of a foreign country. Under this theory, if the crime is committed in an aircraft, no matter how high, as long as it can be established that it is within the Philippine atmosphere, Philippine criminal law (See AntiHijacking Law) will govern. Note: The Philippines adopts the Absolute Theory.

The Philippines adheres to the ENGLISH RULE.

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contemplated are those, which are, under the law: a. Performed by the public officer; b. In the foreign service of the Philippine government; c. In a foreign country.

c. Forging/Counterfeiting of Coins or Currency Notes in the Philippines [Art 2, Par. 2] Forgery is committed by giving to a treasury or bank note or any instrument payable to bearer or to order the appearance of a true genuine document or by erasing, substituting, counterfeiting or altering, by any means, the figures, letters, words, or signs contained therein. If forgery is committed abroad, it must refer only to Philippine coin, currency note, obligations and securities.

A crime committed within the grounds of a Philippine embassy on foreign soil shall be subject to Philippine penal laws, although it may or may not have been committed by a public officer in relation to his official duties. Embassy grounds are considered as extensions of the sovereignty of the country occupying them. [See Minucher v. Court of Appeals, G.R. No. 142396 (1992)]

f.

d. Should introduce into the country the above-mentioned obligations and securities. [Art 2, Par. 3] The introduction of forged or counterfeited obligations and securities into the Philippines is as dangerous as the forging or counterfeiting of the same, to the economic interest of the country. Those who introduced the counterfeit items are criminally liable even if they were not the ones who counterfeited the obligations and securities. On the other hand, those who counterfeited the items are criminally liable even if they did not introduce the counterfeit items.

e. When public officers or employees commit an offense in the exercise of their functions. [Art 2, Par. 4] The crimes which may be committed are: 1. Direct bribery (Art.210) 2. Qualified Bribery (Art. 211-A) 3. Indirect bribery (Art.211) 4. Corruption (Art.212) 5. Frauds against the public treasury (Art.213) 6. Possession of prohibited interest (Art.216) 7. Malversation of public funds or property (Art. 217) 8. Failure to render accounts (Art.218) 9. Illegal use of public funds or property (Art. 220) 10. Failure to make delivery of public funds or property (Art.221) 11. Falsification by a public officer or employee committed with abuse of his official position (Art.171) 12. Those having to do with the discharge of their duties in a foreign country. The functions

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Commit any of the crimes against national security and the law of nations defined in Title One, Book 2, RPC [Art 2, Par. 5]

Crimes against national security 1. Treason [Art.114] 2. Conspiracy and proposal to commit treason [Art.115] 3. Misprision of treason [Art.116] 4. Espionage [Art.117] Crimes against the law of nations 1. Inciting to war or giving motives for reprisals [Art.118] 2. Violation of neutrality [Art.119] 3. Correspondence with hostile country (Art.120) 4. Flight to enemy’s country [Art.121] 5. Piracy in general and mutiny on the high seas or in Philippine waters [Art.122] Note: Crimes against public order (e.g., rebellion, coup d’etat, sedition) committed abroad is under the jurisdiction of the host country. Terrorism is now classified as a crime against national security and the law of nations. R.A. 9372, Human Security Act of 2007 has extraterritorial application. Section 58 provides that the Act shall apply to individual persons who, although physically outside the territorial limits of the Philippines shall: 1. Conspire or plot to commit any of the crimes in the Act; 2. Commit any of said crimes on board a Philippine ship or airship;

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4.

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Commit any of said crimes within the embassy, consulate, or diplomatic premises belonging to or occupied by the Philippine government in an official capacity; Commit said crimes against Philippine citizens or persons of Philippine descent where their citizenship or ethnicity was a factor in the commission of the crimes; Commit said crimes directly against the Philippine government.

c. Prospectivity

Note: Habitual criminals will continue serving their sentence. Habitual Criminal Pending case Serving sentence Continue Case is dismissed sentence

If the case is still pending in court and the repeal is favorable to the accused, the repealing law must be applied, regardless of whether he is a habitual criminal or not, EXCEPT when there is reservation in said law that it does not apply to pending cases.

has taken effect. [Art. 21]

Conversely, acts or omissions which have been committed before the effectivity of a penal law could not be penalized by such penal law.

For offenders already serving sentence, the repealing law which is more lenient must be applied, EXCEPT when there is reservation to that effect or when he is a habitual criminal.

Exception: Penal laws shall have a retroactive effect in so far as they favour the person guilty of a felony. [Art. 22] 1. 2.

The new law is expressly made in applicable to pending actions or existing cause of actions; or The offender is a habitual criminal. [Art. 22]

5. Repeal and Amendment KINDS OF REPEAL a. Absolute or Total Repeal – A repeal is absolute when the crime punished under the repealed law has been decriminalized by the subsequent law. If the new law totally repeals the existing law so that the act which was penalized under the old law is no longer punishable, the crime is obliterated. [Reyes] 1. 2. 3.

Pending cases are dismissed, regardless of whether the accused is a habitual criminal. Unserved penalties imposed are remitted. The offender already serving sentence is entitled to be released unless the repealing law is expressly made inapplicable to those who are serving sentence at the time of repeal.

serving

b. Partial or Relative Repeal – A repeal is partial when the crime punished under the repealed law continues to be a crime in spite of the repeal. [Ortega]

General rule: Acts or omissions will only be subject to a penal law if they are committed AFTER a penal law

Exception to the Exception:

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EFFECTS OF AMENDMENT OF PENAL LAW If the repeal makes the penalty lighter in the new law, the new law shall be applied, EXCEPT when the offender is a habitual delinquent or when the new law is made not applicable to pending action or existing causes of action. If the new law imposes a heavier penalty, the law in force at the time of the commission of the offense shall be applied. If the fine is increased but the penalty of imprisonment is decreased, it is not ex post facto law and the penalty is retroactively applied. [Cruz] Rule of prospectivity also applies to judicial decisions, administrative rulings and circulars. [Art. 8, Civil Code] Rationale for the prospectivity rule: the punishability of an act must be reasonably known for the guidance of society. [People v. Jabinal, G.R. No. L30061 (1974)]

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B. Constitutional Limitations on the Power of Congress to Enact Penal Laws

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Penal laws must apply generally to all people who are under the same class. Such acts and omissions punished as crimes must be clearly defined.

3. Due Process Sec. 14 (1), Art. III, Constitution. No person

shall be held to answer for a criminal offense without due process of law.

1. No Ex Post Facto Law or

Bill of Attainder

Sec. 22, Art. III, Constitution. No ex post facto

4. Cruel or Inhuman

Punishment

law or bill of attainder shall be enacted.

Ex Post Facto Law An ex post facto law is one which: a. makes criminal an act done before the passage of the law and which was innocent when done, and punishes such an act; b. aggravates a crime, or makes it greater than it was, when committed; c. changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; d. alters the legal rules of evidence, and authorizes conviction upon less or different testimony than the law required at the time of the commission of the offense; e. assumes to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a right for something which when done was lawful; and f. deprives a person accused of a crime some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty [In re: Kay Villegas Kami, Inc., G.R. No. L-32485 (1970)] Bill of Attainder A bill of attainder is a legislative act which inflicts punishment without trial. Its essence is the substitution of a legislative act for a judicial determination of guilt. [People v. Ferrer, G.R. No. L32613-14 (1972)]

Sec. 19, Art. III, Constitution. Excessive fines

shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua. Under RA 9364, An Act Prohibiting the Imposition of Death Penalty in the Philippines, RA 8177 (Act Designating Death by Lethal Injection), RA 7659 (Death Penalty Law), and other acts imposing the death penalty were repealed or amended accordingly. In lieu thereof, a. Reclusion perpetua shall be imposed when the law violated makes use of the nomenclature of the penalties of the RPC. b. Life imprisonment shall be imposed when the law violated does not make use of the nomenclature of the penalties of the RPC. The death penalty is still in the statutes but the law prohibits its imposition. Persons convicted of crimes punished by reclusion perpetua shall not be eligible for parole under the Indeterminate Sentence Law.

2. Equal Protection Sec. 1, Art. III, Constitution. No person shall be

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C. FELONIES d.

1. Felonies and Criminal

Liability

e.

Crime Whether the wrongdoing is punished under the Revised Penal Code or under a special law, the generic word “crime” can be used.

f.

Felony Refers only to violations of the Revised Penal Code.

g.

A crime punishable under a special law is not referred to as a felony. “Crime” or “offense” is the proper term.

refraining from prosecuting violators of law Conniving with or consenting to evasion (Art 223) – Failure to act on the responsibility to take charge of a prisoner Refusal to Discharge Elective Office (Art 234) – Refusal to discharge one’s duties Abandonment of person in danger and abandonment of one’s own victim – Failure to render assistance when required by law to do so PD 1153 – Requiring the planting of one tree every month for five consecutive years by every citizen of the Philippines

Provisions in the RPC that use the term “felony” do not extend to crimes under special laws.

b. Comitted by means of: 1. Dolo (i.e. willfully) or 2. Culpa (i.e. negligently)

How committed

c. Punished by the Code

Art. 3. Definitions. – Acts and omissions punishable by law are felonies (delitos).

Felonies are committed not only be means of deceit (dolo) but also by means of fault (culpa). There is deceit when the act is performed with deliberate intent and there is fault when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill. GENERAL ELEMENTS OF FELONIES: a. An act or omission 1. Act – Any kind of body movement which tends to produce some effect in the external world; includes possession 2. Omission – The failure to perform a positive duty which one is bound to do under the law. It is important that there is a law requiring the performance of an act; if there is no positive duty, there is no liability. a. Misprision of Treason (Art 116) – Failure to report knowledge of treason despite allegiance to the Philippines b. Disloyalty of Public Officers (Art 137) – Failure of Public Officers to act properly upon a rebellion c. Prosecution of Offenses; negligence and tolerance (Art 208) – Maliciously

Offense A crime punished under a special law is called a statutory offense. Misdemeanor A minor infraction of the law, such as a violation of an ordinance.

a. Classification of Felonies Purpose. To bring about proportionate penalty and equitable punishment.

1. According to Gravity of Penalties Art. 9. Grave felonies, less grave felonies and light felonies. - Grave felonies are those to which the law attaches the capital punishment or penalties which in any of their periods are afflictive, in accordance with Art. 25 of this Code.

Grave felonies Those to which the law attaches the capital punishment or penalties which in any of their periods are afflictive. Reclusion perpetua a. Reclusion temporal b. Perpetual or Absolute DQ c. Perpetual or Temporary Special DQ d. Prision mayor

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Fine more than P6,000

Less grave felonies Those which the law punishes with penalties which in their maximum period is correctional. a. Prision correccional b. Arresto mayor c. Suspension d. Destierro e. Fines equal to or more than P200

In determining prescription of crimes, apply Art. 9. In determining the prescription of penalty, apply Art. 26. If the penalty is exactly P200.00, apply Art. 26 (with respect to prescription of penalties). It is considered as a correctional penalty and it prescribes in 10 years.

2. According to Stages of Execution

Light felonies Those infractions of law for the commission of which the penalty is arresto menor, or a fine not exceeding P200, or both.

Art. 6. Consummated, frustrated and attempted felonies – Consummated felonies as

Art. 7. When light felonies are punishable –

A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.

Light felonies are punishable only when they have been consummated, with the exception of those committed against person or property.

Why punishable only when consummated They produce light, insignificant moral, and material injuries that public conscience is satisfied with providing a light penalty for their consummation. Who are punished Principals and accomplices only. Examples (MATHS) a. Malicious mischief when the value of the damage does not exceed two hundred pesos or cannot be estimated b. Alteration of boundary marks c. Theft when the value of the thing stolen is less than 5 pesos and theft is committed under the circumstances enumerated under Art. 308 par. 3 d. Intriguing against Honor e. Slight physical injuries Importance of Classification a. to determine whether these felonies can be complexed or not; b. to determine the prescription of the crime and the prescription of the penalty. Take note that when the Revised Penal Code speaks of grave and less grave felonies, the definition makes a reference specifically to Art. 25 of the Revised Penal Code (Penalties which may be imposed).

PHP-200 fine. A fine of exactly PHP-200 is for light felony under art. 9; but is correctional penalty under art. 26.

well as those which are frustrated and attempted, are punishable.

There is an attempt when the offender commences the commission of a felony directly or over acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than this own spontaneous desistance. The three stages are: a. Attempted – When the offender commences the commission of a felony directly by overt acts but does not produce the felony by reason of some cause or accident other than his own spontaneous desistance b. Frustrated – When the offender performs all the acts of execution which would produce the felony but does not produce it by reason of causes independent of the will of the perpetrator c. Consummated – When all the elements necessary for its execution and accomplishment are present; the felony is produced The classification of stages of a felony in Article 6 is true only to crimes under the Revised Penal Code. It does NOT apply to crimes punished under special laws. However, even certain crimes which are punished under the Revised Penal Code do not admit of these stages.

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If the felony is already in its frustrated stage, desistance will NOT negate criminal liability.

a. Attempted Elements: 1. The offender commences the commission of the felony directly by overt acts; 2. He does not perform all the acts of execution which should produce the felony; 3. The non-performance of all acts of execution was due to cause or accident other than his own spontaneous desistance. Overt Act Some physical activity or deed, indicating the intention to commit a particular crime More than a mere planning or preparation, which if carried to its complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. (Reyes, 2008) Marks the commencement of the subjective phase Subjective phase That portion of the acts constituting a crime, starting from the point where the offender begins the commission of the crime to that point where he still has control over his acts including their (act’s) natural course If between those two points, the offender is stopped by reason of any cause outside of his own voluntary desistance, the subjective phase has not been passed and it is merely an attempt. Desistance An absolutory cause which negates criminal liability because the law encourages a person to desist from committing a crime. Does not negate all criminal liability, if the desistance was made when acts done by him already resulted in a felony, the offender will still be criminally liable for the felony brought about by his act. What is negated is only the attempted stage, but there may be other felonies arising from his act. Example: An attempt to kill that results in physical injuries leads to liability for the injuries inflicted

People v. Campuhan, G.R. No. 129433(2000):

The mother of the 4-year-old victim caught the houseboy Campuhan in the act of almost raping her daughter. The hymen of the victim was still intact. However, since it was decided in People v. Orita that entry into labia is considered rape even without rupture and full penetration of the hymen, a question arises whether what transpired was attempted or consummated rape. Held: There was only attempted rape. • Mere touching of external genitalia by the penis is already rape. • Touching should be understood as inherently part of entry of penis penetration and not mere touching, in the ordinary sense, of the pudendum. • Requires entry into the labia, even if there be no rupture of the hymen or laceration of the vagina, to warrant a conviction for consummated rape. • Where entry into the labia has not been established, the crime amounts to an attempted rape. • The prosecution did not prove that Campuhan’s penis was able to penetrate victim’s vagina because the kneeling position of the accused obstructed the mother’s view of the alleged sexual contact. The testimony of the victim herself claimed that penis grazed but did not penetrate her organ. • There was only a shelling of the castle but no bombardment of the drawbridge yet.

b. Frustrated Elements: 1. The offender performs all the acts of execution; 2. All the acts performed would produce the felony as a consequence; 3. But the felony is not produced; 4. By reason of causes independent of the will of the perpetrator. The end of the subjective phase and the beginning of the objective phase.

Note: Desistance is recognized only in the attempted stage of the felony.

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•

Objective phase The result of the acts of execution, that is, the accomplishment of the crime.

•

If the subjective and objective phases have been passed there is a consummated felony.

People v. Listerio, G.R. No. 122099 (2000):

Brothers Jeonito and Marlon were walking when they met a group composed of men who blocked their path and attacked them with lead pipes and bladed weapons. One stabbed Jeonito from behind. Marlon was hit on the head. Held: • The crime is a frustrated felony not an attempted offense considering that after being stabbed and clubbed twice in the head as a result of which Marlon lost consciousness and fell. His attackers apparently thought he was already dead and fled. • A crime cannot be held to be attempted unless the offender, after beginning the commission of the crime by overt acts, is prevented, against his will, by some outside cause from performing all of the acts which should produce the crime. • In other words, to be an attempted crime, the purpose of the offender must be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has performed all of the acts which should produce the crime as a consequence, which acts it is his intention to perform. • If he has performed all the acts which should result in the consummation of the crime and voluntarily desists from proceeding further, it cannot be an attempt, but is a frustrated felony. Crimes which do not admit of frustrated stage 1.

Rape • The essence of the crime is carnal knowledge. • No matter what the offender may do to accomplish a penetration, if there was no penetration yet, it cannot be said that the offender has performed all the acts of execution.

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We can only say that the offender in rape has performed all the acts of execution when he has effected a penetration. Once there is penetration, no matter how slight it is, the offense is consummated. For this reason, rape admits only of the attempted and consummated stages, no frustrated stage. [People v. Orita, G.R. No. 88724 (1990)]

2. Arson • One cannot say that the offender, in the crime of arson, has already performed all the acts of execution which could produce the destruction of the premises through the use of fire, unless a part of the premises has begun to burn. • The crime of arson is therefore consummated even if only a portion of the wall or any part of the house is burned. The consummation of the crime of arson does not depend upon the extent of the damage caused. [People v. Hernandez, G.R. No. L31770 (1929)] 3. Bribery and Corruption of Public Officers • The manner of committing the crime requires the meeting of the minds between the giver and the receiver. • If there is a meeting of the minds, there is consummated bribery or consummated corruption. • If there is none, it is only attempted. 4. Adultery • This requires the sexual contact between two participants. • If that link is present, the crime is consummated. 5. Physical Injuries • Under the Revised Penal Code, the crime of physical injuries is penalized on the basis of the gravity of the injuries. There is no simple crime of physical injuries. There is the need to categorize because there are specific articles that apply whether the physical injuries are serious, less serious or slight. Thus, one could not punish the attempted or frustrated stage because one does not know what degree of physical injury was committed unless it is consummated.

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6. Theft • Once there is unlawful taking, theft is consummated. • Either the thing was taken or not. • It does not matter how long the property was in the possession of the accused; it does not matter whether the property was disposed or not Rule of thumb: Felonies that do not require any result do not have a frustrated stage. Attempted and Frustrated Felonies The difference between the attempted stage and the frustrated stage lies in whether the offender has performed all the acts of execution for the accomplishment of a felony.

Acts Performed

Why

Position in the Timeline

Attempted Felony Overt acts of execution are started BUT Not all acts of execution are present Due to reasons other than the spontaneous desistance of the perpetrator Offender still in subjective phase because he still has control of his acts, including their natural cause.

Frustrated Felony All acts of execution are finished BUT Crime sought to be committed is not achieved Due to intervening causes independent of the will of the perpetrator Offender is already in the objective phase because all acts of execution are already present and the cause of its nonaccomplishment is other than the offender’s will

c. Consummated If the subjective and objective phases have been completed.

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DEVELOPMENT OF A CRIME 1. Internal Acts • Intent, ideas and plans; generally not punishable, even if, had they been carried out, they would constitute a crime • The intention and act must concur. • Illustration: Ernie plans to kill Bert 2. External Acts a. Preparatory Acts • Acts tending toward the crime. • Ordinarily not punished except when considered by law as independent crimes (i.e. Art. 304 – possession of picklocks) • These acts do not yet constitute even the first stage of the acts of execution. • Intent not yet disclosed. • Illustration: Ernie goes to the kitchen to get a knife. b. Acts of Execution 1. Usually overt acts with a logical relation to a particular concrete offense. 2. Punishable under the RPC. 3. Illustration: Ernie stabs Bert. Felony is commenced when: 1. There are external acts. 2. Such external acts have a direct connection with the crime intended to be committed. Indeterminate Offense It is one where the intent of the offender in performing an act is not certain. The accused may be convicted of a felony defined by the acts performed by him up to the time of desistance. The intention of the accused must be viewed from the nature of the acts executed by him and the attendant circumstances, and not from his admission

People v. Lamahang, G.R. No. L-43530 (1935):

Aurelio Lamahang was caught opening with an iron bar a wall of a store of cheap goods in Fuentes St. Iloilo. He broke one board and was unfastening another when a patrolling police caught him. The owners of the store were sleeping inside store as it was early dawn. Lamahang was then convicted of attempted robbery. Held: The crime committed was only attempted trespass to dwelling. Attempt should have logical

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relation to a particular and concrete offense which would lead directly to consummation. It is necessary to establish an unavoidable connection & logical & natural relation of cause and effect. It’s also important to show clear intent to commit crime. In the case at bar, we can only infer that his intent was to enter by force, other inferences are not justified by facts. Groizard: infer only from nature of acts executed. Acts susceptible of double interpretation can’t furnish ground for themselves. The mind should not directly infer intent.

d. CONTINUING CRIMES Definition Single crime consisting of a series of acts arising from a single criminal resolution or intent not susceptible of division. Real or material Continuing crime plurality There is a series of acts performed by the offender. The different acts Each act performed constitute only one constitutes a separate crime because all of the crime because each act acts performed arise is generated by a from one criminal criminal impulse resolution. Requisites 1. Plurality of acts; 2. Unity of penal provision infringed upon; and 3. Unity of criminal intent and purpose. Two or more violations of the same penal provision are united in one and the same intent leading to the perpetration of the same criminal purpose or aim [Gamboa v. CA, G.R. No. L-41054 (1975)] Transitory Crime Criminal action may be instituted and tried in the court of the municipality, city or province wherein any of the essential ingredients thereof took place The necessary elements of the crime may separately take place in different territorial jurisdictions until the crime itself is consummated. Old Jurisprudence To make Article 48 applicable to continuing crimes, there must be singularity of criminal act; singularity of criminal impulse is not written into the law. [Gamboa v. CA, supra] For example, the act of taking the two roosters, in response to the unity of

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thought in the criminal purpose on one occasion, constitutes a single crime of theft.

Gamboa v. CA, supra.: There is plurality of crimes or "concurso de delitos" when the actor commits various delictual acts of the same or different kind. "Ideal plurality" or "concurso ideal" occurs when a single act gives rise to various infractions of law. This is illustrated by the very article under consideration: (a) when a single act constitutes two or more grave or less grave felonies (described as "delito compuesto" or compound crime); and (b) when an offense is a necessary means for committing another offense (described as "delito complejo" or complex proper). "Real plurality" or "concurso real", on the other hand, arises when the accused performs an act or different acts with distinct purposes and resulting in different crimes which are juridically independent. Unlike "ideal plurality", this "real plurality" is not governed by Article 48. Apart and isolated from this plurality of crimes (ideal or real) is what is known as "delito continuado" or "continuous crime". This is a single crime consisting of a series of acts arising from a single criminal resolution or intent not susceptible of division. Recent Jurisprudence Crimes committed by means of separate acts were held to be complex on the theory that they were the product of a single criminal impulse or intent [People v. Pincalin, G.R. No. L-38755 (1981)] One Larceny Doctrine The current prosecution of theft cases is more in line with the Gamboa understanding of delito continuado. The trend is to follow the single larceny doctrine: 1. taking of several things, 2. whether belonging to the same or different owners, 3. at the same time and place, constitutes one larceny only. As long as single criminal impulse. The Supreme Court has extended this class of complex crime to those cases when the offender performed not a single act but a series of acts as long as it is the product of a single criminal impulse.

People v. Garcia, G.R. No. L401-06 (1980):

The accused were convicts who were members of a certain gang and they conspired to kill the other

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gang. Some of the accused killed their victims in one place within the same penitentiary, some killed the others in another place within the same penitentiary. Held: This case is covered by the rule that when for the attainment of a single purpose, which constitutes an offense, various acts are executed, such acts must be considered as only one offense, a continuing one. In other words, when a conspiracy animates several persons with a single purpose, their individual acts in pursuance of that purpose are treated as a single act, the act of execution, which gives rise to a complex offense. The felonious agreement produces a sole and solidary liability How Applied Whenever the Supreme Court concludes that the criminals should be punished only once, because they acted in conspiracy or under the same criminal impulse: 1. It is necessary to embody these crimes under one single information. 2. It is necessary to consider them as complex crimes even if the essence of the crime does not fit the definition of Art 48, because there is no other provision in the RPC.

There is deceit when the act is performed with deliberate intent and there is fault when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill. 1.

Intentional felonies. Those committed with deliberate intent; and Culpable felonies. Those resulting from negligence, reckless imprudence, lack of foresight or lack of skill; performed without malice.

2.

Intentional v. culpable felonies, distinguished. Note that both felonies are done with freedom and intelligence. Freedom is voluntariness, while intelligence is the capacity to know and understand the consequences of an act or omission. The act or omission which is done must be freely done and must not have been forced by an external force. Their difference is that intentional felonies are committed with criminal intent, while culpable felonies are committed through negligence or imprudence. Intentional Act is malicious. With deliberate intent.

People v. Sabbun, G.R. No. L-18150 (1964):

There was illegal charging of fees for service rendered by a lawyer every time he collected veteran’s benefits on behalf of a client who agreed that attorney’s fees shall be paid out of such benefits. The collections of legal fees were impelled by the same motive, that of collecting fees for services rendered, and all acts of collection were made under the same criminal impulse. Application to special laws The concept of delito continuado has been applied to crimes under special laws since in Art. 10, the RPC shall be supplementary to special laws, unless the latter provides the contrary.

3. According to Manner of Commission Art. 3. Definitions – Acts and omissions punishable by law are felonies (delitos).

Felonies are committed not only be means of deceit (dolo) but also by means of fault (culpa).

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Has intention to cause an injury.

Culpable Not malicious. Injury caused is unintentional, being just an incident of another act performed without malice. Wrongful act results from imprudence, negligence, lack of foresight, or lack of skill.

a. Felonies by Dolo Requisites If any of the elements is absent, there is no dolo. If there is no dolo, there could be no intentional felony. [Visbal v. Buban, AM MTJ-03-1471 (2003)] 1. Freedom. Voluntariness on the part of the person who commits the act or omission. 2. Intelligence. Capacity to know and understand the consequences of one’s act. 3. Dolo. Deliberate intent otherwise referred to as criminal intent. It is the purpose to use a particular means to effect a result. a. Intent which is a mental process presupposes the exercise of freedom and the use of intelligence. b. Such intent is not a requisite in: i. Culpable felonies

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Crimes mala prohibita

CRIMINAL INTENT

Actus reus non facit reum nisi mens sit rea.

An act does not make a defendant guilty without a guilty mind.

Mens rea – a guilty mind, a guilty or wrongful

purpose or criminal intent, and essential for criminal liability. [People v Valenzuela, G.R. No. 160188 (2007)] The criminal statute must also provide for the overt acts that constitute the crime. For a crime to exist in our legal law, it is not enough that mens rea be shown; there must also be an actus reus. When presumed (General Rule) 1. If an act is proven to be unlawful, then intent will be presumed prima facie. [U.S. v. Apostol] 2. Such presumption arises from the proof of commission of an unlawful act. When not presumed (Exception) 1. In some crimes, intent cannot be presumed as an integral element thereof; so it has to be proven. 2. In frustrated homicide, specific intent to kill is not presumed but must be proven; otherwise it is merely physical injuries. Degree of proof In these cases when intent has to be proven, the law requires proof beyond reasonable doubt of the existence of malicious intent or dolus malus before an accused can be adjudged liable for committing an intentional felony. [Villareal v. People, G.R. No. 151258 (2012)] General Criminal Intent The intention to do something wrong. Presumed from the mere doing of a wrong act. The burden is upon the wrongdoer to prove that he acted without such criminal intent.

Specific Criminal Intent The intention to commit a definite act. Existence is not presumed. Since the specific intent is an element of the crime, the burden is upon the prosecution to establish its existence.

Must be alleged in Information Where the specific intent of the malefactor is determinative of the crime charged, such specific

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intent must be alleged in the information and proved by the prosecution. The specific intent of the malefactors as disclosed in the information or criminal complaint is determinative of what crime the accused is charged with. [People v. Delim, G.R. No. 142773 (2003)] How proven Specific intent may be proved by direct evidence or by circumstantial evidence. It may be inferred from the circumstances of the actions of the accused as established by the evidence on record. [People v. Delim, supra.] Intent to commit the crime v. intent to perpetrate the act When the statute plainly forbids an act to be done (mala prohibita), and it is done by some person, the law conclusively implies the guilty intent, despite the honest mistake of the offender as to the meaning of the law he violates. x x x Care must be exercised in distinguishing the difference between the intent to commit the crime and the intent to perpetrate the act. The accused did not consciously intend to commit a crime; but he did intend to commit an act, and that act is, by the very nature of things, the crime itself— intent and all. The wording of the law is such that the intent and the act are inseparable. The act is the crime. The accused intended to put the device in his window. Nothing more is required to commit the crime. [U.S. v. Go Chico, G.R. No. 4963 (1909)]

b. Culpable Felonies Culpa 1. Injury caused being simply the incident of another act performed without malice 2. Criminal intent is replaced by negligence or imprudence Reason 1. A man must use his common sense and exercise reflection in all his acts 2. It is one’s duty to be cautious, careful and prudent, and not to expose other people’s lives and property at risk of injury or damage 3. The law penalizes thus the negligent or careless act, not the result thereof. (Ivler v. Modesto-San Pedro, G.R. No. 172716 (2010)] Requisites 1. Freedom 2. Intelligence 3. Negligence or Imprudence

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a.

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Negligence – Deficiency of perception i. Failure to pay proper attention and to use diligence in foreseeing the injury or damage impending to be caused ii. Lack of foresight b. Imprudence – Deficiency of action i. Failure to take the necessary precaution to avoid injury to person or damage to property ii. Lack of skill

3. Rule of Negative Ingredient. This rule states that: a. The prosecution must first identify what the accused failed to do. b. Once this is done, the burden of evidence shifts to the accused. c. The accused must show that the failure did not set in motion the chain of events leading to the injury [Carillo v. People, G.R. No. 86890 (1994)].

Resulting harm or injury Unless the negligent or imprudent act results in harm or injury to another, there is no criminal liability.

When results are not identifiable This is related to the doctrine of proximate cause and applicable when certain causes leading to the result are not identifiable.

No matter how reckless one drives his car, he does not incur criminal liability for culpa if no one is killed or injured, or property is damaged.

4. As to Plurality of Crimes

DOCTRINES ON CULPABLE CRIMES

Plurality Actor commits various delictual acts.

1.

Emergency Rule. A person who is confronted with a sudden emergency may be left no time for thought so he must make a speedy decision based largely upon impulse or instinct [Gan v. CA, G.R. No. L-44264 (1988)].

Importance Said person cannot be held to the same conduct as one who has had an opportunity to reflect, even though it later appears that he made the wrong decision. 2. Doctrine of “Last Clear Chance.” Clear Chance is a defense by the defendant in a damage suit against liability by transferring it to the plaintiff. Exceptions a. The contributory negligence of the party injured will NOT defeat the action if it be shown that the accused might, by the exercise of reasonable care and prudence, have avoided the consequences of the negligence of the injured party. b. The doctrine is not applicable in criminal cases because the liability is penal in nature and thus liability cannot be transferred to the other party. [Anuran v. Buno, G.R. Nos. L-21353-54 (1966)] c. It is not a case between two parties involved in an incident but rather between an individual and the State.

Real or material plurality Different crimes in law as well as in the conscience of the offender. Offender shall be punished for each and every offense that he committed. Three groups: a. Complex Crimes in Art. 48 b. Special Complex Crimes c. Continuous Crimes

5. As to Nature a. Mala in se • Wrong from its very nature • Criminal Intent is an element b. Mala prohibita • Wrong because it is prohibited by law • Criminal Intent is immaterial

b. Factors in Determining Stage of Execution of a Felony These three factors are helpful in trying to pinpoint whether the crime is still in its attempted, frustrated or consummated stage.

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1. Manner of Committing the Crime

2. Elements of the Crime

a. Formal Crimes - consummated in one instant, no attempt

Along with the manner of execution, there are crimes wherein the existence of certain elements becomes the factor in determining its consummation.

Example: Slander and false testimony There can be no attempt, because between the thought and the deed, there is no chain of acts that can be severed. b. Crimes consummated by mere attempt or proposal by overt act Example:. Flight to enemy’s country (Art. 121) and corruption of minors (Art. 340) c. Felony by omission There can be no attempted stage when the felony is by omission, because the offender does not execute acts, rather he omits to perform an act which the law requires him to do. d. Crimes requiring the intervention of two persons to commit them are consummated by mere agreement In bribery, the manner of committing the crime requires the meeting of the minds between the giver and the receiver. In betting in sports contests and corruption of public officer (Art. 197 and Art. 212), the manner of committing the crime requires the meeting of the minds between the giver and the receiver. When the giver delivers the money to the supposed receiver, but there is no meeting of the minds, the only act done by the giver is an attempt. e. Material Crimes – have three stages of execution Thus, in determining the stage of some crimes, the manner of execution becomes pivotal in determining the end of the subjective phase, i.e. once the offender performs the act in the manner provided for in the law, he is already deemed to have performed

every act for its execution.

Examples: a. Estafa – damage is essential before consummated b. Theft – on the other hand, damage or intent to cause damage is not necessary; only intent to gain. c. Abduction – taking away with lewd designs is the crucial element

3. NATURE OF CRIME ITSELF Crimes involving the taking of human life Indispensable that the victim be mortally wounded to reach the objective phase A fatal injury must be inflicted, because only then that death will follow Robbery v. Theft Both crimes are committed by taking personal property with intent to gain. But in robbery, there is use of force or violence Rape Consummated by mere penetration, no matter how slight MISTAKE OF FACT V. MISTAKE OF LAW a. Ignorantia legis neminem excusat (Mistake

of Law)

In civil actions, a difficult question of law may sometimes be considered a defense. This is because knowledge of a legal provision does not necessarily mean knowledge of its true meaning and scope, or of the interpretation which the courts may place upon it. [Kasilag v. Rodriguez, G.R. No. 46623 (1939)] In criminal actions, ignorance of the law excuses no one. Nevertheless, the lack of or a low degree of education may be appreciated as mitigating circumstance in some instances. See Art. 15, RPC. b. Ignorantia facti excusat (Mistake of Fact) A mistake of fact is a misapprehension of a fact which, if true, would have justified the act or

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omission which is the subject of the prosecution. It may be a defense even if the offense charged requires proof of only general intent. [Yapyuco v. Sandiganbayan, G.R. No. 120744-46 (2012); U.S. v. Ah Chong, G.R. No. L-5272 (1910)] Application An honest mistake of fact destroys the presumption of criminal intent which arises from the commission of a felonious act. [People v. Oanis, G.R. No. L-47722 (1943)]. This defense does not avail, however, when there is no intent to consider, such as in culpable felonies and crimes mala prohibita. Requisites a. Act done would have been lawful, had the facts been as the accused believed them to be b. Intention of the accused in performing the act is lawful c. Mistake must be without fault or carelessness on the part of the accused 1. The accused had believed that his roommate was somebody else and that he had no alternative but to kill said roommate, hence his act of killing is justified [US v. Ah Chong, supra.] 2. When the accused is negligent, such as when the police shot the victim without ascertaining first whether or not he was the fugitive, mistake of fact is not a defense. [People v. Oanis, supra.]

Yapyuco v. Sandiganbayan, supra.: The inquiry

is into the mistaken belief of the defendant, and it does not look at all to the belief or state of mind of any other person. A proper invocation of this defense requires (a) that the mistake be honest and reasonable; (b) that it be a matter of fact; and (c) that it negate the culpability required to commit the crime or the existence of the mental state which the statute prescribes with respect to an element of the offense. Motive Moving power which impels one to action to achieve a definite result (Reyes, 2008) DIFFERENCE WITH SPECIFIC INTENT. [People v Delim, supra.]

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Must be alleged in the Information and proved by the state in a prosecution for a crime requiring specific intent. Examples where specific intent are necessary: Kidnapping and murder Motive Reason which prompts the accused to engage in a particular criminal activity. Not an essential element of a crime and hence the prosecution need not prove the same.

General Rule: Proof of motive for the commission

of the offense charged does not show guilt and absence of proof of such motive does not establish the innocence of accused for the crime charged such as murder. When motive should be proven a. When the act brings about variant crimes (e.g. kidnapping v. robbery [People v. Puno, G.R. No. 97471 (1993)] b. When there is doubt as to the identity of the assailant. [People v. Hassan, G.R. No. L-68969 (1988)] c. When there is the need to ascertain the truth between two antagonistic versions of the crime. [People v. De Los Santos, G.R. No. 131588 (2001)] d. When the identification of the accused proceeds from an unreliable source and the testimony is inconclusive and not free from doubt. e. When there are no eyewitnesses to the crime, and when suspicion is likely to fall upon a number of persons. f. When the evidence on the commission of the crime is purely circumstantial. g. When the act is alleged to be committed in defense of a stranger because it must not be induced by revenge, resentment, or other evil motive. How motive is proven Generally, the motive is established by the testimony of witnesses on the acts or statements of the accused before or immediately after the commission of the offense, deeds, or words that may express it or from which his motive or reason for committing it may be inferred. [Barrioquinto v. Fernandez (1949)]

Specific Intent Particular purpose or specific intention in doing the prohibited act.

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c. Criminal Liability and Impossible Crimes •

Art. 4. Criminal Liability – Criminal liability

shall be incurred: 1. By any person committing a felony (delito) although the wrongful act done be different from that which he intended. 2. By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or an account of the employment of inadequate or ineffectual means.

1. Wrongful Act Different from that Intended Rationale – El que es causa de la causa es cause

del mal causado.

“He who is the cause of the cause is the cause of the evil caused.” The presumption is that a person intends the ordinary consequences of his voluntary act. [People v. Toling, G.R. No. L-27097 (1975)] One who commits an intentional felony is responsible for all the consequences which may naturally and logically result therefrom, whether foreseen or intended or not. Requisites a. An intentional felony has been committed. • Felony is one committed by means of dolo (malice) • No intentional felony when: ▪ Act or omission is not punishable by RPC ▪ Act is covered by a justifying circumstance in Article 11 b. The wrong done to the aggrieved party be the

direct, natural and logical consequence of the felony committed by the offender.

•

• •

Proximate Cause – Cause which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury without which the result would not have occurred. Relation of cause and effect must be shown: ▪ Unlawful act is the efficient cause ▪ Accelerating cause Not the proximate cause when:

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▪ There is an active force between the felony and resulting injury ▪ Resulting injury is due to the intentional act of victim Efficient intervening cause – cause which interrupts the natural flow of events leading to one’s death May relieve offender from liability

2. Kinds a. Error in Personae Mistake in identity. A felony is intended, but there is a mistake in the identity of the victim; injuring one person mistaken for another. Mistake in killing of man instead of another, with proof of acting maliciously and willfully, does not relieve him of criminal responsibility. (People v Gona, G.R No. L-32066 (1930)]

b. Abberratio Ictus Mistake in blow. When offender intending to do an injury to one person actually inflicts it on another. Treachery can apply in a case of aberration ictus, applying the Flora doctrine [People v Samson, G.R. No. 205228 (2015)]

c. Praeter intentionem Mitigating circumstance of did not intend to commit a grave so wrong The fact that he did not intend to cause so great an injury does not relieve him from the consequences of his unlawful act—it is merely a mitigating circumstance. (People v Cagoco) Penalty to be imposed There is still criminal liability. a. Error in Personae – Penalty for lesser crime in its maximum period (Art. 49) b. Abberratio Ictus – Penalty for graver offense in its maximum period (Art. 48 on complex crimes) c. Praeter intentionem – Mitigating circumstance of not intending to commit a grave so wrong (Art. 13)

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Examples of when not criminally liable a. If A, in attempting a suicide, jumped out the window to kill himself, but when he dropped to the ground he fell on an old woman who died as a consequence, A is not criminally liable for intentional homicide. A was not committing a felony when he attempted a suicide. b. If B, who was being fired at with a gun by C to kill him, fired a pistol at the latter in self-defense, but missed him and instead hit and killed D, a bystander, B is not criminally liable for the death of D. One acting in self-defense is not committing a felony. [Reyes] Wrongful act done different from that intended, but not praeter intentionem People v. Sales, G.R. No. 177218(2011): In order that a person may be criminally liable for a felony different from that which he intended to commit, it is indispensable (a) that a felony was committed and (b) that the wrong done to the aggrieved person be the direct consequence of the crime committed by the perpetrator. Here, there is no doubt appellant in beating his son Noemar and inflicting upon him physical injuries, committed a felony. As a direct consequence of the beating suffered by the child, he expired. Appellant’s criminal liability for the death of his son, Noemar, is thus clear. Appellant is guilty of parricide. However, there was error when the trial court appreciated the mitigating circumstance of lack of intention to commit so grave a wrong. Appellant adopted means to ensure the success of the savage battering of his sons. He tied their wrists to a coconut tree to prevent their escape while they were battered with a stick to inflict as much pain as possible. Noemar suffered injuries in his face, head and legs that immediately caused his death. The mitigating circumstance of lack of intent to commit so grave a wrong as that actually perpetrated cannot be appreciated where the acts employed by the accused were reasonably sufficient to produce and did actually produce the death of the victim.

3. Impossible Crime Purpose To suppress criminal propensity or criminal tendencies. Objectively, the offender has not committed a felony, but subjectively, he is a criminal.

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Requisites a. That the act performed would be an offense against persons or property. b. That the act was done with evil intent. c. That its accomplishment is inherently impossible, or that the means employed is either inadequate or ineffectual. d. That the act performed should not constitute a violation of another provision of the RPC. Inadequate Insufficient (e.g. small quantity of poison). Ineffectual Means employed did not produce the result expected (e.g. pressed the trigger of the gun not knowing that it is empty). Inherent Impossibility a. Legal impossibility. – where the intended acts, even if completed, do not amount to a crime [Intod v CA, G.R. No. 103119 (1992)] 1. Killing a person who is already dead 2. Stealing property that belongs to himself [Carreon v Flores] b. Physical or factual impossibility. –Extraneous circumstances unknown to the actor or beyond his control prevent the consummation of the intended crime. Impossibility of accomplishing the criminal intent is not a defense but an act penalized in itself. No attempted or frustrated impossible crime Since the offender in an impossible crime has already performed the acts for the execution of the same, there could be no attempted impossible crime. There is no frustrated impossible crime either, because the acts performed by the offender are considered as constituting a consummated offense.

Jacinto v. People , G.R. No. 162540 (2009):

Appellant was a former collector for her employercorporation. After her resignation, she managed to collect postdated checks from her employer’s clients and appropriated these for herself. However, the checks were dishonored by the banks. The issue is whether or not appellant should be charged with qualified theft for the theft of worthless checks. Held: As may be gleaned from the art. 308 of the RPC, in rel. to art. 310, the personal property

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Special complex crime (delito especial complejo) – the law fixes one penalty for two or more crimes committed.

subject of the theft must have some value, as the intention of the accused is to gain from the thing stolen. This is further bolstered by Article 309, where the law provides that the penalty to be imposed on the accused is dependent on the value of the thing stolen. In this case, petitioner unlawfully took the postdated check belonging to Mega Foam, but the same was apparently without value, as it was subsequently dishonored.

3.

In Intod, the Court went on to give an example of an offense that involved factual impossibility, i.e., a man puts his hand in the coat pocket of another with the intention to steal the latter's wallet, but gets nothing since the pocket is empty.

COMPOUND CRIME

Herein petitioner's case is closely akin to the above example of factual impossibility given in Intod. In this case, petitioner performed all the acts to consummate the crime of qualified theft, which is a crime against property. Petitioner's evil intent cannot be denied, as the mere act of unlawfully taking the check meant for Mega Foam showed her intent to gain or be unjustly enriched. Were it not for the fact that the check bounced, she would have received the face value thereof, which was not rightfully hers. Therefore, it was only due to the extraneous circumstance of the check being unfunded, a fact unknown to petitioner at the time, that prevented the crime from being produced. As such, she should be charged for impossible crime, and not with consummated qualified theft.

d. Complex Crimes Art. 48. Penalty for complex crimes – When a

single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period. Ideal plurality (complex crime). A single act gives rise to various infractions of law. 1. Compound crime (delito compuesto) – a single act constitutes two or more grave or less grave felonies (Art. 48). 2. Complex crime proper (delito complejo) – an offense is a necessary means to commit another offense (Art. 48).

Why only one penalty is imposed. They constitute only one crime in the eyes of the law, and in the conscience of the offender. Hence, there is only one penalty imposed for the commission of a complex crime.

Requisites 1. That only a single act is performed by the offender 2. That the single acts produces: a. 2 or more grave felonies, or b. 1 or more grave and 1 or more less grave felonies, or 2 or more less grave felonies Single Act Throwing a hand grenade A single bullet killing two person

Several Acts Submachine gun – because of the number of bullets released Firing of the revolver twice in succession

Light felonies Light felonies produced by the same act should be treated and punished as separate offenses or may be absorbed by the grave felony. Examples of compound crime The victim was killed while discharging his duty as barangay captain to protect life and property and enforce law and order in his barrio. The crime is a complex crime of homicide with assault upon a person in authority. When in obedience to an order several accused simultaneously shot many persons, without evidence how many each killed, there is only a single offense, there being a single criminal impulse. No complex crime of criminal negligence. Article 48 does not apply to acts penalized under Article 365 of the Revised Penal Code. Article 48 is a procedural device allowing single prosecution of multiple felonies falling under either compound crimes or complex crime proper. The legislature crafted this procedural tool to benefit the accused who, in lieu of serving multiple penalties, will only

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serve the maximum of the penalty for the most serious crime. In contrast, Article 365 is a substantive rule penalizing not an act defined as a felony but "the mental attitude behind the act, the dangerous recklessness, lack of care or foresight, a single mental attitude regardless of the resulting consequences. Thus, Article 365 was crafted as one quasi-crime resulting in one or more consequences. [Ivler v. Modesto-San Pedro, supra.] COMPLEX CRIME Requisites 1. That at least two offenses are committed 2. That one or some of the offenses must be necessary to commit the other • Does not need to be “indispensable means” 3. That both or all the offenses must be punished under the same statute. When no complex crime proper 1. Subsequent acts of intercourse, after forcible abduction with rape, are separate acts of rape. 2. Not complex crime when trespass to dwelling is a direct means to commit a grave offense. 3. No complex crime, when one offense is committed to conceal the other. 4. When the offender already had in his possession the funds which he misappropriated, the subsequent falsification of a public or official document involving said offense is a separate offense. 5. Where one of the offenses is penalized by a special law. 6. There is no complex crime of rebellion with murder, arson, robbery, or other common crimes [People v. Hernandez, G.R. Nos. L-6025-26 (1956); Enrile v. Salazar, G.R. No. 92163 (1990)] 7. In case of continuous crimes. 8. When the other crime is an indispensable element of the other offense. General rules in complexing crimes 1. When two crimes produced by a single act are respectively within the exclusive jurisdiction of two courts of different jurisdiction, the court of higher jurisdiction shall try the complex crime. 2. The penalty for complex crime is the penalty for the most serious crime, to be applied in its maximum period. 3. When two felonies constituting a complex crime are punishable by imprisonment and fine

4. 5. 6.

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respectively, only the penalty of imprisonment should be imposed. Art. 48 applies only to cases where the Code does not provide a definite specific penalty for a complex crime. One information should be filed when a complex crime is committed. When a complex crime is charged and one offense is not proven, the accused can be convicted of the other.

When rules in Article 48 are NOT applicable. 1. When the crimes subject of the case have common elements; 2. When the crimes involved are subject to the rule of absorption of one crime by the other; 3. Where the two offenses resulting from a single act are specifically punished as a single crime, such as less serious physical injuries with serious slander of deed, since this is punished under Article 265 par. 2, as the single crime of less serious physical injuries with ignominy; 4. In special complex crimes or composite crimes. Special Complex Crimes In substance, there is more than one crime; but from in the eyes of the law, there is only one. The law treats it as a single crime for which it prescribes a single penalty. It is also called a composite crime. A special complex crime in the eyes of the law: 1. A single indivisible offense. 2. Acts constituting a single crime Common special complex crimes. 1. Robbery with Homicide (Art. 294 (1)) 2. Robbery with Rape (Art. 294 (2)) 3. Robbery with Arson 4. Kidnapping with serious physical injuries (Art. 267 (3)) 5. Kidnapping with rape 6. Rape with Homicide (Art. 335) 7. Arson with homicide When crimes involved cannot be legally complexed. 1. Malicious obtention or abusive service of search warrant (Art. 129) with perjury; 2. Bribery (Art. 210) with infidelity in the custody of prisoners; 3. Maltreatment of prisoners (Art. 235) with serious physical injuries;

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4.

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Usurpation of real rights (Art. 312) with serious physical injuries; and

Elements criminal liability Actus Reus Mens Rea Concurrence Result

of

Impossible crime ✓ ✓ ✓ Lacking due to: inherent impossibility or employment of inadequate means

5.

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Abandonment of persons in danger (Art. 275) and crimes against minors (Art. 276 to 278) with any other felony.

Attempted

Frustrated

Consummated

Intervention other than own desistance; some but not all acts of execution ✓ ✓

✓

✓

✓ ✓

✓ ✓ ✓

Not produced by reason of causes independent of the will of the perpetrator

✓

Causation

2. Circumstances Affecting

Except Par. 4 & 7

Criminal Liability

Imputability The quality by which an act may be ascribed to a person as its author or owner. It implies that the act committed has been freely and consciously done and may, therefore, be put down to the doer as his very own.

Mitigating

Responsibility The obligation of suffering the penal and civil consequences of crime.

Alternative

Imputability distinguished from responsibility While imputability implies that a deed may be imputed to a person, responsibility implies that the person must take the consequences of such a deed. Guilt Is an element of responsibility, for a man cannot be made to answer for the consequences of a crime unless he is guilty. [Reyes]

Justifying

No Wrong

Exempting

There Is A Wrong

No Criminal Liability

No Civil Liability, Except Par. 4 With Civil Liability,

Aggravating

There Is a Felony

Decreased Criminal Liability Increased Criminal Liability Increased or Decreased Criminal Liability

With Civil Liability

a. Justifying Circumstances [Art. 11] Justifying circumstances Where the act of the person is said to be in accordance with the law, so that such person is deemed not to have transgressed the law. Lack of dolo is basis. Criminal and civil liability There is NO crime committed, the act being justified. Thus, such persons cannot be considered criminals. There is no civil liability EXCEPT in par. 4, Art. 11 (avoidance of greater evil), where the civil liability is borne by the persons benefited by the act in

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proportion to the benefit they may have received (Art. 101).

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Justifying circumstance

Burden of proof The burden of proof rests on the accused, who must prove the circumstance by clear and convincing evidence. Justifying and exempting circumstances, distinguished Justifying Exempting It affects the act, not It affects the actor, not the actor. the act. The act is considered to have been done within The act complained of the bounds of law; is actually wrongful, but hence, legitimate and the actor is not liable. lawful in the eyes of the law. Since the act complained of is actually wrong, there is Since the act is a crime but since the considered lawful, there actor acted without is no liability. voluntariness or negligence, there is no dolo or culpa. There is a crime, but there is no criminal There is no criminal or liability. Civil liability civil liability. exists (EXCEPT: accident; insuperable cause). Requisites of Each Circumstance (D3afs) Justifying Requisites circumstance 1. Unlawful aggression; 2. Reasonable necessity of means employed to Defense of person, prevent or repel it; right, property, or 3. Lack of sufficient honor (URL) provocation on the part of the person defending himself. 1. Unlawful aggression; 2. Reasonable necessity of means employed to Defense of relatives prevent or repel it; (URL) 3. Lack of sufficient provocation on part of relative, or, in case of provocation, the one

Defense of strangers (URN)

Avoidance of greater evil (ENIM)

Fulfillment of duty or lawful exercise of right (PN)

Obedience to superior order (OPM)

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Requisites making the defense had no part therein. 1. Unlawful aggression; 2. Reasonable necessity of the means employed to prevent or repel it; 3. The person defending was not induced by revenge, resentment or other evil motive. 1. Evil sought to be avoided actually exists. 2. The evil or injury sought to be avoided must not have been produced by the one invoking the justifying circumstances. 3. Injury feared be greater than that done to avoid it. 4. There is no other practical and less harmful means of preventing it. 1. Offender acted in performance of duty or in the lawful exercise of a right or office; 2. That the injury caused or the offense committed be the necessary consequence of the due performance of duty or the lawful exercise of such right or office. 1. Order must have been issued by a superior; 2. The order is for some lawful purpose; 3. The means used to carry it out must be lawful.

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initial attack, unlawful aggression is deemed to continue.

1. Defense of Person, Rights, Property, and Honor (Self-Defense) Why self-defense is lawful. a. Impulse of self-preservation; b. State cannot provide protection for each of its constituents.

Picking up a weapon Picking up a weapon is sufficient unlawful aggression if preceded by circumstances indicating the intention of the deceased to use it in attacking the defendant.

Nacnac v. People, G.R. No. 191913 (2012):

Presupposes actual, sudden, and unexpected attack or imminent danger thereof, not merely threatening or intimidating attitude [People v Colinares, G.R. No. 182748 (2011)]

The Supreme Court acquitted the accused-police officer for shooting on the head another police officer. Accused was supposed to use the patrol tricycle to go the police station but the victim prevented him, saying he needed the tricycle to settle an issue with the local bar. (The victim has a history of drunkenness and violence.) When the accused insisted on using the tricycle, the victim insulted the accused and touched his gun. The accused fired a warning shot, but the victim drew out his gun. Here the accused the victim, who died on the spot.

To consider the existence of unlawful aggression: 1. Physical & objective circumstance (E.g. Wound receive by deceased) 2. Lack of motive of person defending himself 3. Conduct of accused immediately after the incident

Held: Jurisprudence distinguishes between the act of drawing one’s gun and the act of pointing one’s gun at a target. GENERALLY, the latter is the one considered as unlawful aggression. The former does not put in real peril the life or personal safety of another.

The single indispensable element in self-defense, defense of relatives, and defense of strangers is unlawful aggression.

HOWEVER, in the case at bar, the aggressor is a police officer. A policeman IS PRESUMED to be quick in firing. Hence, the drawing of the gun is considered unlawful aggression as an exemption to the general rule.

REQUISITES

a. Unlawful Aggression When peril to one’s life, limb, or right is 1. Actual and 2. Imminent

When in retaliation When the killing of the deceased by the accused was after the attack made by the former, the accused must have no time nor occasion for deliberation and cool thinking. When unlawful aggression ceases, the defender has no longer any right to kill or wound the former aggressor, otherwise, retaliation and not selfdefense is committed. [People v. Bates, G.R. No. 139907 (2003)]. Continuing unlawful aggression Unlawful aggression must be a continuing circumstance or must have been existing at the time the defense is made. Once the unlawful aggression is found to have ceased, the one making the defense would likewise cease to have any justification for killing, or even just wounding, the former aggressor. [People v. Dijan, G.R. No. 142682 (2002)]

Mistake of fact Mere belief of an impending attack is not sufficient. BUT in relation to “mistake of fact,” the belief of the accused may be considered in determining the existence of unlawful aggression. Lawful aggression 1. Fulfillment of a duty 2. Exercise of a right in a more or less violent manner The law does not require a person to retreat where he has a right to be and his assailant is rapidly advancing upon him with a deadly weapon. [US v. Domen, G.R. No. L-12964 (1917)]

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4. Agreement to fight 1. General Rule: No unlawful aggression when there was an agreement to fight and the challenge to fight was accepted 2. Exception: Aggression which is ahead of an agreed time or place is unlawful aggression. Paramour kills the offended husband Paramour surprised in the act of adultery cannot invoke self-defense if he killed the offended husband who was assaulting him because the husband’s aggression was lawful (Art. 247).

b. Reasonable necessity of means employed Two elements: 1. Necessity for the course of action 2. Necessity of the means employed Does not depend on harm done, but the imminent danger of such injury Doctrine of rational equivalence Rational equivalence presupposes the consideration not only of the nature and quality of the weapons used by the defender and the assailant, but of the totality of circumstances surrounding the defense vis-àvis the unlawful aggression. It considers: 1. The emergency 2. The imminent danger to which the person attacked is exposed 3. The instinct, more than the reason, that moves or impels the defense 4. The proportionate-ness of the defense does not depend upon the harm done, but rests upon the imminent danger of such injury. [Espinosa v. People, G.R. No. 181701 (2010)] Perfect equality between the weapon used by the one defending himself and that of the aggressor is not required, nor is the material commensurability between the means of attack and defense. Rational equivalence is enough. Test of reasonableness The reasonableness depends upon: 1. Nature and quality of the weapon used by the aggressor 2. Aggressor’s physical condition, character, size, and other circumstances 3. And those of the person defending himself

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The place and occasion of the assault

When contestants are in the open It is undoubtedly well established in jurisprudence that a man is not, as a rule, justified in taking the life of one who assaults him with his fist only, without the use of a dangerous weapon. The person assaulted must, in such case, either resist with the arms that nature gave him or with other means of defense at his disposal, short of taking life. But that rule contemplates the situation where the contestants are in the open and the person assaulted can exercise the option of running away. It can have no binding force in the case where the person assaulted has retreated to the wall, as the saying is, and uses in a defensive way the only weapon at his disposal. One is not required, when hard pressed, to draw fine distinctions as to the extent of the injury which a reckless and infuriated assailant might probably inflict upon him. [People v. Sumicad, G.R. No. 35524 (1932)] When the attacker has been disarmed If the attacker is already disarmed, there is no need to further use violence. If the attacker was disarmed but struggled to re-obtain the weapon, violence may be justified. Further, in repelling/preventing unlawful aggression, the one defending must aim at the defendant, and not indiscriminately fire his deadly weapon. In favor of the law-abiding citizen This element should be interpreted liberally in favor of the law-abiding citizen.

c. Lack of sufficient provocation The accused who claims self-defense must not have provoked the aggression of the victim Provocation is sufficient when it is proportionate to the aggression [People v. Boholst-Caballero, G.R. No. L23249 (1974)] Not enough that the provocative act be unreasonable or annoying to be provocation considered This requisite is present when: 1. No provocation at all was given 2. Even if provocation was given, it was not sufficient

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3. 4.

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Even if the provocation was sufficient, it was not given by the person defending himself Even if the provocation was given by the person defending himself, it was not proximate and immediate to the act of aggression. [Cano v. People (2003)]

Insults 1. General Rule: Verbal argument is not considered sufficient provocation 2. Exception: Insults in vulgar language are

People v. Toledo, G.R. No. L-28655 (2004):

The appellant claims that he should not be convicted because of accidental self-defense. He said that he accidentally hit the victim with a bolo, eventually killing the latter. Held: There is no such defense as accidental selfdefense in the realm of criminal law. Self-defense under Article 11, paragraph 1 of the Revised Penal Code necessarily implies a deliberate and positive overt act of the accused to prevent or repel an unlawful aggression of another with the use of reasonable means. The accused has freedom of action. He is aware of the consequences of his deliberate acts. The defense is based on necessity which is the supreme and irresistible master of men of all human affairs, and of the law. From necessity, and limited by it, proceeds the right of self-defense. The right begins when necessity does, and ends where it ends. Although the accused, in fact, injures or kills the victim, however, his act is in accordance with law so much so that the accused is deemed not to have transgressed the law and is free from both criminal and civil liabilities. How can the prosecution attack this justifying circumstance? 1. The number of wounds of the victim. 2. If the accused surrendered to the policemen, he declined to give any statement, i.e., protestation of innocence or justification. 3. When unlawful aggressor runs away, but the accused runs after him him nonetheless (EXCEPT when retreat is taken to get a more advantageous position). 4. Flight of the accused.

People v. Alconga, G.R. No. L-162 (1947):

Barion went to the guardhouse where accused Alconga was doing his duties as “home guard.” While the accused was seated, the deceased swung at him with his pingahan (piece of bamboo). The

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accused was able to avoid the blow however, by falling to the ground under the bench. The accused was able to go out of the guardhouse by crawling, and when the deceased was delivering the third blow, the accused (still in his crawling position), fired at the deceased with his revolver. The deceased got up and drew his dagger this time, while the accused used his bolo and hand-to-hand fight commenced. The deceased obtained several wounds and ran away, only to be followed by the accused, and another fight happened. The deceased sustained more injuries including the mortal bolo blow, and he fell to the ground. Held: In the initial stage of the fight, the accused was acting in self-defense. However, when he chose to run after the deceased, he was no longer acting in self-defense for there was no more aggression to defend against and he could have chosen to stay where he was. The unlawful aggression had already ceased and therefore, his right to self-defense had ceased as well. SUBJECTS OF SELF-DEFENSE 1. Defense of person 2. Defense of rights 3. Defense of property The defense of property rights can be invoked if there is an attack upon the property although it is not coupled with an attack upon the person of the owner of the premises. All the elements for justification must however be present. [People v. Narvaez, G.R. No. L-33466-67 (1983)]

People v. Narvaez, supra.:

Narvaez was taking his rest inside his house when he heard that the wall of his house was being chiseled. He saw that Fleischer and Rubia, were fencing the land of the father of the deceased Fleischer. He asked the group to stop but they refused. The accused got mad so he got his shotgun and shot Fleischer. Rubia ran towards the jeep and knowing there is a gun on the jeep, the accused fired at Rubia as well. Narvaez claimed he acted in defense of his person and rights. Held: There was aggression by the deceased not on the person of the accused but on his property rights when Fleischer angrily ordered the continuance of the fencing. The third element of self-defense is also present because there was no

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sufficient provocation on the part of Narvaez since he was sleeping when the deceased where fencing. However, the second element was lacking. Shooting the victims from the window of his house is disproportionate to the physical aggression by the victims. Thus, there is incomplete self-defense. Accused is entitled to mitigating circumstance of incomplete selfdefense, because one can defend oneself, but cannot immediately kill. Defense of home Violent entry to another’s house at nighttime; by a person who is armed with a bolo; and forcing his way into the house, shows he was ready and looking for trouble. Defense of honor and reputation Placing of hand by a man on the woman’s upper thigh is unlawful aggression. Slap on the face A slap on the face is considered as unlawful aggression since the face represents a person and his dignity. [Rugas v. People] Attempt to rape A woman-accused who stabbed someone who attempted to rape her is afforded the exemption from criminal liability. The killing cannot be considered a crime from the moment it became the only means left for her to protect her honor from so great an outrage. [People v Luage, G.R. No. L-43588 (1935)] It is also justified for a woman to stab a man who followed her when she was on her way home one night, kissed and embraced her, and touched per private parts. There was no other means of selfdefense. [People v Dela Cruz, G.R. No. L-41674 (1935)] No imminent danger to warrant self-defense People v. Jaurigue, supra.: Amado (deceased) has been courting the accused Avelina in vain. On the day of the crime, Avelina and Amado were in Church. Amado sat beside Avelina and placed his hand on her thigh. Thereafter, Avelina took out her knife and stabbed Amado in the neck, causing the death of Amado. Held: Although the defense of one’s honor exempts one from criminal liability, it must be proved that there is actual danger of being raped. In this case, 1) the church was well-lit, 2) there

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were several people in the church, including the father of the accused and other town officials. In light of these circumstances, accused could not have possibly been raped. The means employed in defense of her honor was evidently excessive. Stand your ground principle In certain jurisdictions in the United States, most notably in Florida, a person is justified in the use of deadly force and does not have a duty to retreat if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself. ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT OF 2004 (RA NO. 9262)

People v. Genosa doctrine [G.R. No. 135981

(2004)] The battered woman syndrome (BWS) is characterized by a “cycle of violence”, which is made up of three phases. For the BWS to be available as a defense, it must be proven that there has been more than one cycle. Battered woman syndrome Scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse. Battery Any act of inflicting physical harm upon the woman or her child resulting in physical and psychological or emotional distress. Battered woman Woman “who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without concern for her rights.” First Phase: Tension Building Phase 1. Where minor battering occurs, it could be a verbal or slight physical abuse or another form of hostile behavior. 2. The woman tries to pacify the batterer through a show of kind, nurturing behavior, or by simply staying out of the way. 3. But this proves to be unsuccessful as it only gives the batterer the notion that he has the right to abuse her.

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Second Phase: Acute Battering Incident 1. Characterized by brutality, destructiveness, and sometimes death. 2. The battered woman has no control; only the batterer can stop the violence. 3. The battered woman realizes that she cannot reason with him and resistance would only worsen her condition. Third Phase: Tranquil Period 1. Characterized by guilt on the part of the batterer and forgiveness on the part of the woman. 2. The batterer may show a tender and nurturing behavior towards his partner and the woman also tries to convince herself that the battery will never happen again and that her partner will change for the better. Characteristics of BWS The BWS has four characteristics: 1. The woman believes that the violence was her fault; 2. She has an inability to place the responsibility for the violence elsewhere; 3. She fears for her life and/or her children’s life 4. She has an irrational belief that the abuser is omnipresent and omniscient. RA 9262 The Genosa ruling states that BWS is valid as a defense when all the requisites of self-defense are present. Sec. 26 abandons the precedent set by Genosa case. Sec. 26, RA 9262. Battered Woman Syndrome as a Defense. – Victim-survivors who are found by the courts to be suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of selfdefense under the Revised Penal Code. In the determination of the state of mind of the woman who was suffering from battered woman syndrome at the time of the commission of the crime, the courts shall be assisted by expert psychiatrists/ psychologists.

c.

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In case there was provocation by the person being defended, the one making the defense had no part in such

Although the provocation prejudices the person who gave it, its effects do not reach the defender who took no part therein, because the latter was prompted by some noble or generous sentiment in protecting and saving a relative. Basis The law acknowledges the possibility that a relative, by virtue of blood, will instinctively come to the aid of their relatives. This justifying circumstance is found not only upon a humanitarian sentiment, but also upon the impulse of blood which impels men to rush, on the occasion of great perils, to the rescue of those close to them by ties of blood. Relatives for self-defense (SAD-SiR) a. Spouse b. Ascendants c. Descendants d. Legitimate, natural, or adopted Siblings, or relatives by affinity in the same degrees (parentsin-laws, children-in-law, siblings-in-law) e. Relatives by consanguinity within 4th civil degree

US v. Esmedia, G.R. No. L-5740 (1910):

The two accused are exempt from criminal responsibility for having caused the death of Santiago Abando because it was shown that they inflicted wounds upon him in defense of their father who was fatally wounded at the time of their attack. They honestly believed, and had good grounds upon which to found their belief, that Santiago would continue his attack upon their father. They are, however, guilty of having caused the death of the old man, Ciriaco Abando [the father of Santiago]. When they attacked and killed him the other trouble had terminated and they were not in danger of bodily harm from him. Ciriaco was merely near the scene.

3. Defense of Relatives

4. Defense of Strangers

Requisites a. Unlawful Aggression b. Reasonable necessity of means employed

Stranger Any person not included in the enumeration of relatives under [par. 2 of Art. 11]

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Requisites a. Unlawful Aggression b. Reasonable necessity of means employed c. Person defending was not induced by revenge, resentment or other evil motive ▪ Motive is relevant only in this kind of defense Basis What one may do in his defense, another may do for him. The ordinary man would not stand idly by and see his companion killed without attempting to save his life

5. State of Necessity (Avoidance of a Greater Evil) Requisites a. Evil to be avoided actually exists b. Evil or injury sought to be avoided is not produced by the one invoking the justifying circumstance c. Injury feared be greater than that done to avoid it d. No other practical and less harmful means of preventing it With Civil Liability It is only in this paragraph that the person accused incurs civil liability despite the justifying circumstance. Said liability is borne by the person benefitted by the act.

People v. Retubado, G.R. No. 1203058 (2003):

Art. 11(4) provides “in order to avoid evil or injury” but the official Spanish text actually provides el estado de necessidad (state of necessity). There is state of necessity when the situation is of grave peril, actual or imminent. It is indispensable that the state of necessity is NOT brought about by intentional provocation on the part of the party invoking the same. Kind of evil The evil contemplated includes injurty to persons and damage to property. This greater evil must not be brought about by the negligence or imprudence of the accused.

Ty v. People, G.R. No. 149275 (2004):

Ty’s mother and sister were confined at the Manila Doctors’ Hospital. Ty signed the “Acknowledgment of Responsibility for Payment” in the Contract of Admission. The total hospital

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bills of the two patients amounted to P1,075,592.95. Ty executed a promissory note wherein she assumed payment of the obligation in installments. To assure payment of the obligation, she drew 7 postdated checks against Metrobank payable to the hospital which were all dishonored by the drawee bank due to insufficiency of funds. As defense, Ty claimed that she issued the checks because of “an uncontrollable fear of a greater injury.” She averred that she was forced to issue the checks to obtain release for her mother who was being inhumanely treated by the hospital. She alleged that her mother has contemplated suicide if she would not be discharged from the hospital. Ty was found guilty by the lower courts of 7 counts of violation of BP22. Held: The court sustained the findings of the lower courts. The evil sought to be avoided is merely expected or anticipated. So the defense of “an uncontrollable fear of a greater injury” is not applicable. By her own admission, she had the choice to give jewelry or other forms of security instead of postdated checks to secure her obligation. Moreover, for the defense of state of necessity to be availing, the greater injury feared should not have been brought about by the negligence or imprudence, more so, the willful inaction of the actor. In this case, the issuance of the bounced checks was brought about by Ty’s own failure to pay her mother’s hospital bills.

6. Fulfillment of Duty or Lawful Exercise of Right or Office Requisites a. The accused acted in the performance of a duty or oin the lawful exercise of a right or office • The law does not clothe police officers with authority to arbitrarily judge the necessity to kill, but must be within reasonable limits [People v Ulep, G.R. No. 132547 (2000)] • A policeman who shot an escaping prisoner was done in performance of duty and was justified to use extreme means (People v Delima) • But shooting a thief who refused to be arrested is not justified b. The injury caused or offense committed be the necessary consequence of the due performance

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of duty or the lawful exercise of such right or office

Mamangun v. People, G.R. No. 149152 (2007): A policeman in pursuit of a snatcher accidentally shot one of the bystanders who were actually helping him chase the snatcher.

Held: To be sure, acts in the fulfillment of a duty, without more, do not completely justify the petitioner’s firing the fatal gunshot at the victim. True, petitioner was performing his duty as a police officer as well as when he was trying to effect the arrest of the suspected robber and in the process, fatally shoot said suspect, albeit the wrong man. However, in the absence of the equally necessary justifying circumstance that the injury or offense committed be the necessary consequence if the due performance of such duty, there can only be incomplete justification, a privilege mitigating circumstance under Art. 13 and 69 of the RPC. There can be no quibbling that there was no rational necessity for the killing of Contreras. Petitioner could have first fired a warning shot before pulling the trigger against Contreras who was one of the residents chasing the suspected robber.

People v. Cabanlig, G.R. No. 148431 (2005):

The victim was with certain police officers inside a patrol jeep which was crossing a bridge around 7 PM. The victim suddenly grabbed an M16 from one of the police officers and ran away. The accused fired one shot, and when the victim turned around and face the jeep, the accused fired four shots which killed the victim. Held: The Supreme Court declared the accused as conducting himself in the lawful exercise of a right. In People v. Delima, the police officer was running after a fugitive with a bamboo lance. The police man shot and killed the fugitive, but the SC acquitted the police from any charge. At the case at bar, M16 is deadlier than a bamboo lance. Further, in Pomoy v. People, the Court held that the petitioner exercised his duty as law enforcer when he tried to defend his possession of the weapon when the victim suddenly tried to remove it from his holster.

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Although the accused here did not issue a warning shot, the said directive to issue a warning contemplates a situation where several options are available to the officers. Here the threat to the life of the law enforcer is imminent, and there is no other option but to use force.

7. Obedience to an Order Issued for Some Lawful Purpose Requisites 1. An order has been issued by a superior 2. Such order must be for some lawful purpose A subordinate is not liable for carrying out an illegal order of his superior if he is not aware of the illegality of the order and he is not negligent. 3.

The means used by the subordinate to carry out said order is lawful

People v. Beronilla, G.R. L-4445 (1955):

Held: Where the accused acted upon orders of superior officers that they, as military subordinates, could not question, and obeyed in good faith, without being aware of their illegality, without any fault or negligence on their part, the act is not accompanied by criminal intent. A crime is not committed if the mind of the person performing the act be innocent.

b. Exempting Circumstances [Art. 12] Exempting circumstances Grounds for exemption from punishment because the agent of the crime is wanting any of the conditions which make the act voluntary or negligent. The reason for the exemption lies on the complete absence of intelligence, freedom of action, or intent, or on the absence of negligence on the part of the accused. REQUISITES OF EACH CIRCUMSTANCE (IM-DAI-UI) Exempting Requisites Basis circumstance An imbecile or insane who Insanity or Absence of did not act imbecility intelligence during lucid interval

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Exempting circumstance

Minority; Without Discernment

Accident

Irresistible force

Uncontrollable fear

Insuperable or lawful cause

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Requisites a. Accused is 15 years old and below b. Accused is between 15 and 18 years old, and he acted without discernment 1. A person is performing a lawful act; 2. With due care; 3. He causes an injury to another by mere accident; 4. Without fault or intention of causing it. 1. That the compulsion is by means of physical force; 2. That the physical force must be irresistible; 3. That the physical force must come from a third person. 1. Threat is greater than or equal to the act required to commit. 2. Gravity and imminence of evil. 1. That an act is required by law to be done; 2. That a person fails to perform such act; 3. That his

Exempting circumstance

Basis

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Requisites

Basis

failure to perform such act was due to some lawful or insuperable cause

Absence of intelligence

1. Insanity or Imbecility

Lack of negligence and intent

Imbecile One who, while advanced in age, has a mental development comparable to that of a child between 2 and 7 years of age. Exempt in all cases from criminal liability Feeblemindedness is not imbecility, hence not exempting. It is necessary that there is a complete deprivation of intelligence in committing the act. It may, however, be considered mitigating. [People v. Formigones (1950)] Insanity A complete deprivation of intelligence in committing the act, but capable of having lucid intervals. Mere abnormality of mental faculties is not enough especially if the offender has not lost consciousness of his acts.

Absence freedom

of

During a lucid interval, the insane acts with intelligence and thus, is not exempt from criminal liability. Insanity is a defense in the nature of confession and avoidance and must be proved beyond reasonable doubt.

Absence freedom

of

Lack of intent

In remission of symptoms, not lucid interval People v. Antonio, Jr., G.R. No. 144266 (2002): Dr. Cosca explained that a person suffering from psychosis may have varying degrees of symptoms within a specified period. Hence it was possible that his active symptoms of psychosis, e.g., auditory hallucinations or persecutory delusions, may be present for the period that he did not take his medication and drank alcohol. She asserted that in psychiatry, they did not use the phrase “lucid interval” but what they called “in remission of symptoms,” meaning, there was no active phase of the symptoms of psychosis.

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Presumption The presumption is always in favor of sanity and the burden of proof of insanity is on the defense. [People v. Aquino, G.R. No. 87084 (1990)] When should be insane It has long been settled that the period to which the inquiry into the mental state of the accused should be directed is that transpiring immediately before and/or at the very moment of the act or acts under prosecution. [People v. Aquino, supra] Insanity subsequent to commission of crime is not exempting. How proven

People v. Madarang, G.R. No. 132319 (2000):

In the Philippines, the courts have established a more stringent criterion for insanity to be exempting as it is required that there must be a complete deprivation of intelligence in committing the act, i.e., the accused is deprived of reason; acted without the least discernment because there is a complete absence of the power to discern, or that there is a total deprivation of the will. Mere abnormality of the mental faculties will not exclude imputability. The issue of insanity is a question of fact for insanity is a condition of the mind, not susceptible of the usual means of proof. As no man can know what is going on in the mind of another, the state or condition of a person’s mind can only be measured and judged by his behavior. Establishing the insanity of an accused requires opinion testimony which may be given by a witness who is intimately acquainted with the accused, by a witness who has rational basis to conclude that the accused was insane based on the witness’ own perception of the accused, or by a witness who is qualified as an expert, such as a psychiatrist. The testimony or proof of the accused’s insanity must relate to the time preceding or coetaneous with the commission of the offense with which he is charged. Two tests a. The test of COGNITION, or whether the accused acted with complete deprivation of intelligence in committing the said crime;

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The test of VOLITION, or whether the accused acted in total deprivation of freedom of will. [People v. Rafanan, G.R. No. L-54135 (1991)]

Both cognition and volition tests are applied. There must be complete deprivation of the intellect or will or freedom.

People v. Tabugoca, G.R. No. 125334 (1998):

Accused-appellant has utterly failed to overthrow the presumption of sanity. The defense did not present any expert witness, any psychiatric evaluation report, or any psychological findings or evidence regarding his mental condition at the time of the commission of the offenses. Accusedappellant’s charade of amnesia is evidently a desperate gambit for exculpation. Yet, amnesia, in and of itself, is no defense to a criminal charge unless it is shown by competent proof that the accused did not know the nature and quality of his action and that it was wrong. Failure to remember is no proof of the mental condition of the accused when the crime was performed. Mental illnesses covered Cases covered under this article: (MaKE P SleD) a. Malignant malaria: which affects the nervous system [People v. Lacena, G.R. No. 46836 (1940)] b. Kleptomania with irresistible impulse; exempting when it only diminishes will-power c. Epilepsy d. Psychosis or schizophrenia, except when in remission of symptoms [People v. Antonio, Jr.] e. Somnambulism: Sleep-walking [People v. Taneo, G.R. No. L-37673 (1933)] f. Dementia praecox [People v. Bonoan, G.R. No. L45130 (1937)] Note: Cited in old cases, but is a term no longer used by mental health practitioners Juridical effects of insanity a. If present at the time of the commission of the crime – EXEMPT from liability. b. If present during trial – proceedings will be SUSPENDED and accused is committed to a hospital. c. After judgment or while serving sentence – Execution of judgment is SUSPENDED, the accused is committed to a hospital. The period of confinement in the hospital is counted for the purpose of the prescription of the penalty.

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2.

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Minority

Paragraphs 2 and 3 of Article 12, as well as art. 80 of the RPC, have been amended/repealed by PD 603, as amended, and RA 9344. JUVENILE JUSTICE AND WELFARE ACT OF 2006 (RA 9344) Child A person under 18 years. Child in conflict with the law A child who is alleged as, accused of, or adjudged as, having committed an offense under Philippine laws. [Sec. 4(e), RA 9344] Juvenile Justice and Welfare System Refers to a system dealing with children at risk and children in conflict with the law, which provides child-appropriate proceedings including programs and services for prevention, diversion, rehabilitation, re-integration and aftercare to ensure their normal growth and development. [Title V: Juvenile Justice and Welfare System of RA 9344] Does not include civil liability The exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws. [Sec. 6, RA 9344]

3. Accident Definition Something that happens outside the sway of our will and, although coming about through some act of our will, lies beyond the bounds of humanly foreseeable consequences. Requisites a. A person is performing a lawful act • The act of firing a shotgun at another is not a lawful act. [People v. Agliday, G.R. No. 140794 (2001)] b. Done with due care • It is uniformly held that if life is taken by misfortune or accident while in the performance of a lawful act executed with due care and without intention of doing harm, there is no criminal liability. [US v. Tanedo, G.R. No. L-5418 (1910)] c. He causes injury by mere accident d. Without fault or intention of causing it

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Burden of proof Well settled is the rule in criminal cases, that the prosecution has the burden of proof to establish the guilt of the accused. However, once the defendant admits the commission of the offense charged, but raises an exempting circumstance as a defense, the burden of proof is shifted to him. [People v. Concepcion, G.R. No. 148919 (2002)] Comparison with Article 11(4) Article 11(4) is a justifying circumstance because the offender deliberately caused damage, whereas in Article 12(4), the offender accidentally caused damage.

4. Irresistible Force Definition The duress, force, fear or intimidation must be present, imminent and impending, and of such nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done. Requisites a. Compulsion is by means of physical force b. Physical force must be irresistible The person invoking this circumstance must show that the force exerted was such that it reduced him to a mere instrument who acted not only without his will but against it [People v. Lising, G.R. No. 106210-11 (1998)] c. Physical force comes from a third person No opportunity for escape or self-defense A threat of future injury is not enough. The compulsion must be of such a character as to leave no opportunity for the accused for escape or selfdefense in equal combat. [People v. Del Rosario, G.R. No. 127755 (1999)]

5. Uncontrollable Fear Requisites a. Threat which causes the fear is of an evil greater than, or at least equal to, that which he is required to commit b. Threat promises an evil of such gravity and imminence that the ordinary man would have succumbed to

Actus me invite factus non est meus actus. An act done by me against my will is not my act.

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Not uncontrollable fear when it is speculative, fanciful, or remote fear. Such compulsion must leave no opportunity to the accused for escape or selfdefense in equal combat. In treason The only possible defense here is fear of death. [Reyes] Uncontrollable fear distinguished Irresistible Force Irresistible force must operate directly upon the person of the accused and the injury feared may be a lesser degree than the damage caused by the accused. Offender uses physical force or violence to compel another person to commit a crime.

and

irresistible

force,

Uncontrollable Fear Uncontrollable fear may be generated by a threatened act directly to a third person such as the wife of the accused, but the evil feared must be greater or at least equal to the damage caused to avoid it. Offender employs intimidation or threat in compelling another to commit a crime.

6. Insuperable or Lawful Cause Insuperable means insurmountable. A cause which has lawfully, morally or physically prevented a person to do what the law commands. Requisites a. An act is required by law to be done b. The person fails to perform such act c. His failure to perform such act was due to some lawful or insuperable cause

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People v. Bandian, G.R. No. 45186 (1936):

A woman cannot be held liable for infanticide when she left her newborn child in the bushes without being aware that she had given birth at all. Severe dizziness and extreme debility made it physically impossible for Bandian to take home the child plus the assertion that she didn’t know that she had given birth.

c. Mitigating Circumstances [Art. 13] If present in the commission of the crime, these circumstances do not entirely free the actor from criminal liability, but serve only to reduce the penalty. Ordinary v. privileged mitigating circumstance, distinguished Privileged Ordinary MC MC May be offset by any Cannot be As to offset aggravating offset circumstance If not offset by aggravating Reduces the circumstance, penalty by reduces the one to two penalty degrees than As to effect provided by law that to its min provided by period provided law for the the penalty is crime. divisible.

REQUISITES OF EACH CIRCUMSTANCE (ICN-SIP-VDIA) Mitigating circumstance Elements (when possible) Incomplete justification/ A majority, but not all, elements of justifying and exemption exempting circumstances are present

Basis

Conditional minority

Diminution intelligence

No intention to commit so grave a wrong

Diminution of intent 1. 2. 3.

Sufficient provocation or threat 4.

Provocation must be sufficient Must originate from the offended party That the provocation must be personal and directed to the accused That the provocation must be immediate to the act, i.e., to the commission of the crime by the person who is provoked Page 37 of 310

of

Diminution of intelligence and intent

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Mitigating circumstance 1.

Immediate vindication of a grave offense

2.

3. 1. 2. 3. Passion or obfuscation 4.

1. 2. 3. Voluntary surrender or Plea of Guilt

1. 2. 3.

Elements (when possible) That there be a grave offense done to the one committing the felony, his spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters, or relatives by affinity within the same degree. That the felony is committed in vindication of such grave offense. A lapse of time is allowed between the vindication and the doing of the grave offense. The vindication need not be done by the person upon whom the grave offense was committed The accused acted upon an impulse. The impulse must be so powerful that it naturally produces passion or obfuscation in him. That there be an act, both unlawful and sufficient to produce such condition of mind; and That said act which produced the obfuscation was not far removed from the commission of the crime by a considerable length of time, during which the perpetrator might recover his normal equanimity. Offender had not been actually arrested. Offender surrendered himself to a person in authority or to the latter’s agent. Surrender was voluntary. Offender spontaneously confessed his guilt. Confession of guilt was made in open court, that is, before the competent court that is to try the case; and Confession of guilt was made prior to the presentation of evidence for the prosecution.

Basis

Diminution voluntariness

1. Illness

2.

Illness of the offender must diminish the exercise of his will-power. Illness should not deprive the offender of consciousness of his acts.

mitigating

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of

Diminution of intelligence and intent

Lesser perversity of the offender

Diminution voluntariness

Physical defects

Analogous circumstances

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of

Diminution of intelligence and intent

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1. Incomplete Justification or Exemption Art. 69. Penalty to be imposed when the crime committed is not wholly excusable. – A penalty lower by one or two degrees than that prescribed by law shall be imposed if the deed is not wholly excusable by reason of the lack of some of the conditions required to justify the same or to exempt from criminal liability in the several cases mentioned in Article 11 and 12, provided that the majority of such conditions be present. The courts shall impose the penalty in the period which may be deemed proper, in view of the number and nature of the conditions of exemption present or lacking.

For this mitigating circumstance, the courts have the discretion of imposing the penalty lower by one or two degrees than that prescribed by law. Coverage Not all the requisites necessary to justify the act or to exempt from criminal liability under articles 11 and 12 are attendant. In cases when the justifying or exempting circumstance has only two requisites, the presence of one element makes art. 69 applicable.

People v. Ulep, supra.: Incomplete justification

is a special or privileged mitigating circumstance, which, not only cannot be offset by aggravating circumstances but also reduces the penalty by one or two degrees than that prescribed by law. Incomplete self-defense, defense of relatives and strangers Unlawful aggression should always be present to be appreciated as mitigating. It is an ordinary mitigating circumstance if only unlawful aggression is present. When two of the three requisites are present, it is a privileged mitigating circumstance. Accident If the “accident” is attended with fault (cf. fourth element of accident) and without due care (second element), then the act becomes punishable under art. 365.

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2. Under 18 or Over 70 Years Old (Conditional Minority) Art. 68. Penalty to be imposed upon a person under eighteen years of age. – When the

offender is a minor under eighteen years and his case is one coming under the provisions of the paragraphs next to the last of Article 80 of this Code, the following rules shall be observed: 1. Upon a person under fifteen but over nine years of age, who is not exempted from liability by reason of the court having declared that he acted with discernment, a discretionary penalty shall be imposed, but always lower by two degrees at least than that prescribed by law for the crime which he committed. 2. Upon a person over fifteen and under eighteen years of age the penalty next lower than that prescribed by law shall be imposed, but always in the proper period.

People v. Jacinto, G.R. No. 182239 (2011):

Under Article 68 of the Revised Penal Code, when the offender is a minor under 18 years, the penalty next lower than that prescribed by law shall be imposed, but always in the proper period. The age of the offender at the time of the commission of the crime is considered in lowering the penalty. As for suspending the sentence, it is the age of the offender at the time the sentence is to be promulgated. 15 and below Considered as an exempting circumstance. Above 15 but under 18 Exempting, unless acted with discernment. If acted with discernment, it is a mitigating circumstance, lowering the penalty by one degree. The sentence is suspended until the minor turns 21 years old. When over 70 Appreciated as mitigating circumstance.

If the “accident” is intended (cf. fourth element) and unlawful (first element), then the act is covered by art. 4, par. 1 of the RPC – intentional felony. Page 39 of 310

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3. No Intention to Commit So Grave A Wrong (Praeter Intentionem) Only applicable to offense resulting in death, physical injuries, or material harm (including property damage). It is not applicable to defamation or slander. When not applicable a. Crime results from criminal negligence or culpa b. The offender employed brute force c. The victim does not die as a result of the assault in cases of crimes against persons d. Murder qualified by treachery

People v. Sales, G.R. No. 177218 (2011):

The mitigating circumstance of lack of intent to commit so grave a wrong as that actually perpetrated cannot be appreciated where the acts employed by the accused were reasonably sufficient to produce and did actually produce the death of the victim. There must be a notable disproportion between the means employed to execute the criminal act and its consequences. [People v. Amit, G.R. No. L-29066 (1970)] The intention, as an internal act, is judged not only by the proportion of the means employed by him to the evil produced by his act, but also by: a. The weapon used b. The part of the body injured c. The injury inflicted d. The manner it is inflicted. Intention can also be inferred from the subsequent acts of the accused immediately after committing the offense, such as when the accused helped his victim to secure medical treatment.

People v. Ural, G.R. No. L-30801 (1974):

The intention, as an internal act, is judged not only by the proportion of the means employed by him to the evil produced by his act, but also by the fact that the blow was or was not aimed at a vital part of the body. Thus, it may be deduced from the proven facts that the accused had no intent to kill the victim, his design being only to maltreat him, such that when he realized the fearful consequences of his felonious act, he allowed the victim to secure medical treatment at the municipal dispensary.

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4. Sufficient Provocation or Threat Provocation Any unjust or improper conduct or act of the offended party capable of exciting, inciting, or irritating anyone. Threat Threat must not be offensive and positively strong, otherwise may result to unlawful aggression justifying self-defense. See discussion on self-defense. Requisites a. Provocation must be sufficient • “Sufficient” means adequate to excite a person to commit a wrong and must accordingly be proportionate to its gravity. [People v. Nabora, G.R. No. L-48101 (1941)] • Depends upon: ▪ Social standing of person provoked ▪ Act constituting provocation ▪ Time and place where the provocation is made b. It must originate from the offended party c. The provocation is immediate to the act, or the commission of the crime • When there is an interval of time between the provocation and the commission of the crime, the perpetrator has time to regain his reason [People v Pagal, G.R. No. L-32040 (1977)] Sufficient provocation as a requisite of incomplete selfdefense It pertains to its absence on the part of the person defending himself. [People v. CA, G.R. No. 103613 (2001)]

Provocation as a mitigating circumstance

It pertains to its presence on the part of the offended party.

BAR TIP. The common set-up given in a bar problem is that of provocation given by somebody against whom the person provoked cannot retaliate; thus the person provoked retaliated on a younger brother or on the father. Although in fact, there is sufficient provocation, it is not mitigating because the one who gave the provocation is not the one against whom the crime was committed. Page 40 of 310

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Look at two criteria a. If from the element of time, • material lapse of time stated in the problem and • there is nothing stated in the problem that the effect of the threat of provocation had prolonged and affected the offender at the time he committed the crime then you use the criterion based on the time element. b. If there is that time element and at the same time, facts are given indicating that at the time the offender committed the crime, he is still suffering from outrage of the threat or provocation done to him, then he will still get the benefit of this mitigating circumstance. Provocation and passion/obfuscation, considered together Romera v. People, G.R. No. 151978 (2004): Provocation and passion or obfuscation are not two separate mitigating circumstances. It is wellsettled that if these two circumstances are based on the same facts, they should be treated together as one mitigating circumstance. It is clear that both circumstances arose from the same set of facts. Hence, they should not be treated as two separate mitigating circumstances.

5. Immediate Vindication of A Grave Offense Requisites a. There be a grave offense done to the one committing the felony, his spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters, or relatives by affinity within the same degree b. Felony is committed in vindication of such grave offense • A lapse of time is allowed between vindication and the doing of a grave offense The Spanish text uses “proxima.” Although the grave offense which engendered the perturbation of mind was not so immediate, it was held that the influence thereof, by reason of its gravity, lasted until the moment the crime was committed. [People v. Parana, G.R. No. L-45373 (1937)]

CRIMINAL LAW

However, this circumstance cannot be considered where sufficient time has elapsed for the accused to regain his composure. [People v Ventura, G.R. No. 14814546 (2004)] Gravity of personal offense The question whether or not a certain personal offense is grave must be decided by the court, having in mind: [TimPlaS] a. the Time when the insult was made; b. the Place; and c. the Social standing of the person. Vindication and passion/obfuscation, considered together Vindication of a grave offense and passion or obfuscation cannot be counted separately and independently.

People v. Torpio, G.R. No. 138984 (2004):

The mitigating circumstance of sufficient provocation cannot be considered apart from the circumstance of vindication of a grave offense. These two circumstances arose from one and the same incident, i.e., the attack on the appellant by the accused, so that they should be considered as only one mitigating circumstance. Vindication and provocation, distinguished Provocation Vindication The grave offense may It is made directly only be committed against to the person the offender’s relatives committing the felony. mentioned by law. The offended party The offense need not must have done a grave be a grave offense. offense to the offender or his relatives. The provocation or The grave offense may threat must be proximate, which immediately precede admits of an interval of the act. time It is a mere spite against It concerns the honor the one giving the of the person. provocation or threat.

6. Passion or Obfuscation (Arrebato Y Obcecacion) Requisites a. That there be an act, both unlawful and sufficient, to produce such condition of mind

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•

Circumstance is not applicable when the act is committed in a spirit of: a. Lawlessness b. Revenge • If the cause of loss of self-control is trivial and slight, obfuscation is not mitigating. b. The said act was not far removed from the commission of the crime by a considerable length of time • The perpetrator must not have been able to recover his normal equanimity c. Act causing obfuscation was committed by the victim himself

People v. Bates, G.R. No. 139907 (2003):

To consider passion and obfuscation as a mitigating circumstance, such must arise from lawful sentiments and not from a spirit of lawlessness or revenge or from anger and resentment. In the present case, clearly, Marcelo was infuriated upon seeing his brother, Carlito, shot by Jose. However, a distinction must be made between the first time that Marcelo hacked Jose and the second time that the former hacked the latter. When Marcelo hacked Jose right after seeing the latter shoot at Carlito, and if appellant refrained from doing anything else after that, he could have validly invoked the mitigating circumstance of passion and obfuscation. But when, upon seeing his brother Carlito dead, Marcelo went back to Jose, who by then was already prostrate on the ground and hardly moving, hacking Jose again was a clear case of someone acting out of anger in the spirit of revenge. Cannot coexist with treachery Passion cannot co-exist with treachery because in passion, the offender loses his control and reason while in treachery the means employed are consciously adopted. One who loses his reason and self-control could not deliberately employ a particular means, method or form of attack in the execution of the crime. [People v. Germina, G.R. No. 120881 (1998)] Passion/obfuscation v. distinguished Passion/Obfuscation Mitigating Circumstance

irresistible

force,

Irresistible force Exempting circumstance

Cannot give rise to physical force because it does not involves physical force. Passion/obfuscation comes from the offender himself. Must arise from lawful sentiments to be mitigating.

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Physical force is a condition sine qua non. Irresistible force comes from a third person. Irresistible unlawful.

force

is

Passion/obfuscation v. provocation, distinguished Passion/Obfuscation Provocation Passion/obfuscation is produced by an impulse Provocation comes which may be caused by from the injured party. provocation. The offense which engenders the perturbation of mind Must immediately need not be immediate. precede the It is only required that commission of the the influence thereof crime. lasts until the moment the crime is committed. In both, the effect is the loss of reason and selfcontrol on the part of the offender.

7. Voluntary Surrender and Plea Of Guilt VOLUNTARY SURRENDER Surrender is voluntary if spontaneous showing the interest of the accused to surrender unconditionally to the authorities, either because (1) he acknowledges his guilt or (2) wishes to save them the trouble and expenses that would be necessarily incurred in his search and capture. [Andrada v. People, G.R. No. 135222 (2005)]. If none of these two reasons impelled the accused to surrender, the surrender is not spontaneous and therefore not voluntary. [People v. Laurel, G.R. No. 120353 (1998)]. The accused must actually surrender his own person to the authorities, admitting complicity of the crime.

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Requisites a. Offender has not been actually arrested Exceptions: a. Where a person, after committing the offense and having opportunity to escape, voluntarily waited for the agents of the authorities and voluntarily gave up, he is entitled to the benefit of the circumstance, even if he was placed under arrest by a policeman then and there. [People v. Parana, G.R. No. L-45373 (1937)] b. Where the arrest of the offender was after his voluntary surrender or after his doing an act amounting to a voluntary surrender to the agent of a person in authority. [People v. Babiera, G.R. No. 28871 (1928); People v. Parana, supra.] b. Offender surrendered himself to a person in authority or to the latter’s agent

Person in authority – one directly vested with jurisdiction. [Art. 152] Agent of person in authority – person, who, by direct provision of law, or by election or by competent authority, is charged with the maintenance of public order and the protection and security of life and property and any person who comes to the aid of persons in authority. [Art. 152] c.

The surrender was voluntary

If the only reason for the supposed surrender is to ensure the safety of the accused whose arrest is inevitable, the surrender is not spontaneous and hence not voluntary. [People v. Pinca, G.R. No. 129256 (1999)] The surrender must be unconditional Merely requesting a policeman to accompany the accused to the police headquarters is not voluntary surrender. [People v. Flores, G.R. No. 137497 (1994)]

People v. Pinca, supra.:

Appellant’s actions after the incident are not marks of voluntary surrender. Denying to the police any personal knowledge of the crime, he even tried to distance himself from the place of the incident by going to Tagbilaran City.

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It was only when he learned that he had become a suspect and that the police were looking for him even in Tagbilaran that he finally went to the police station, but only “to clear his name.” Such acts do not show any intent to surrender unconditionally to the authorities. Whether or not a warrant of arrest had been issued is immaterial and irrelevant. The RPC does not distinguish among the various moments when the surrender may occur. [Reyes]. The fact that a warrant of arrest had already been issued is no bar to the consideration of that circumstance because the law does not require that the surrender be prior the arrest. [People v. Yecla, G.R. Nos. 46526-27(1939)]. What is important is that the surrender be spontaneous.

People v. Dulos, G.R. No. 107328 (1994):

In order that voluntary surrender may be appreciated, it is necessary that “it must be spontaneous and made in such manner that it shows the intent of the accused to surrender unconditionally to the authorities, either because he acknowledges his guilt or because he wishes to save them the trouble and expenses necessarily incurred in his search and capture.”

8. Plea of Guilt Requisites a. Offender spontaneously confessed his guilt b. Confession was made in open court, that is, before the competent court that is to try the case c. Made prior to the presentation of evidence for the prosecution d. Confession of guilt was to the offense charged in the information Legal effects While the plea of guilty is mitigating, it is also considered an admission of all material facts alleged in the information, including aggravating circumstances. The admission covers both the crime and its attendant circumstances qualifying and/or aggravating. [People v Jose, G.R. No. L-28232 (1971)] However, t is also an established rule that a plea of guilty cannot be held to include treachery and evident premeditation where the evidence adduced does not adequately disclose its existence. [People v Gravino, G.R. No. L-31327-29 (1983)]

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Extrajudicial confession The extrajudicial confession made by the accused is not voluntary confession because it was made outside the court. [People v. Pardo, G.R. No. L-562 (1947)] When still mitigating The change of plea should be made at the first opportunity when his arraignment was first set. a. Withdrawal of plea of not guilty before presentation of evidence by prosecution is still mitigating. All that the law requires is voluntary plea of guilty prior to the presentation of the evidence by the prosecution. b. A plea of guilty on an amended information will be considered as an attenuating circumstance if no evidence was presented in connection with the charges made therein. [People v. Ortiz] When no longer mitigating a. A conditional plea of guilty is not mitigating. b. Plea of guilt on appeal is not mitigating. Plea to a lesser offense

Sec. 2, Rule 116, ROC – At arraignment, the

accused, with the consent of the offended party and prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary.

9. Physical Defects The physical defect must have a relation to the commission of the crime. Such defect restricts or limits his means to act, defend himself, or communicate with others. Here, there is no distinction between educated and uneducated deafmute or blind persons. Estafa Where the offender is deaf and dumb and he misappropriated property entrusted to him, the crime committed was estafa. The fact that he was deaf and dumb is not mitigating since that does not bear any relation to the crime committed. Physical injuries If a person is deaf and dumb and has been slandered, he cannot talk so instead he got a piece of wood and struck the fellow on the head. The crime committed

CRIMINAL LAW

was physical injuries. The Supreme Court held that being a deaf and dumb is mitigating because the only way is to use his force because he cannot strike back in any other way.

People v. Doepante, G.R. No. 102772 (1996):

The appellant was convicted of murder. He claims that the mitigating circumstance of physical defect should be appreciated in his case because he has no left arm. Held: The fact that appellant suffers from a physical defect, a severed left hand, does not mean that he should automatically be credited with the mitigating circumstance. In order for this condition to be appreciated, it must be shown that such physical defect limited him to such an extent that he did not have complete freedom of action, consequently resulting in diminution of the element of voluntariness. Such cannot be appreciated in the case at bar where the appellant’s physical condition clearly did not limit his means of action, defense or communication, nor affect his free will. In fact, despite his handicap, appellant nevertheless managed to attack, overcome and fatally stab his victim.

10. Illness Requisites a. The illness of the offender must diminish the exercise of willpower b. Such illness should not deprive the offender of consciousness of his acts It is said that this paragraph refers only to diseases of pathological state that trouble the conscience or will. If a psychological disease does not lead someone to experience insanity (i.e., complete deprivation of intelligence) during the commission of a crime, it may be appreciated as mitigating provided there is diminution of will power.

11. Analogous Mitigating Circumstances Any other circumstance of similar nature and analogous to the nine mitigating circumstances enumerated in art. 13 may be mitigating. a. Offender leading the law enforcers to the place where he buried the instrument of the crime has been considered as equivalent to voluntary surrender

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g.

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Stealing driven to do so out of extreme poverty is considered as analogous to incomplete state of necessity Over 60 years old with failing sight, similar to over 70 years of age mentioned in par. 2. [People v. Reantillo, G.R. No L-45685 (1938)] Voluntary restitution of stolen goods similar to voluntary surrender [People v. Luntao, 50 O.G. 1182] Impulse of jealous feelings, similar to passion and obfuscation. [People v. Libria, G.R. No. L6585 (1954)] Extreme poverty and necessity, similar to incomplete justification based on state of necessity. [People v. Macbul, G.R. No. L-48976 (1943)] Testifying for the prosecution, without previous discharge, analogous to a plea of guilty. [People v. Navasca, G.R. No. L-29107 (1977)]

Canta v. People, G.R. No. 140937 (2001):

Canta stole a cow but alleges that he mistook the cow for his missing cow. He made a calf suckle the cow he found and when it did, Canta thought that the cow he found was really his. However, he falsified a document describing the said cow’s cowlicks and markings. After getting caught, he surrendered the cow to the custody of the authorities in the municipal hall. Held: Canta’s act of voluntarily taking the cow to the municipal hall to place it in the custody of authorities (to save them the time and effort of having to recover the cow) was an analogous circumstance to voluntary surrender.

Aggravating circumstance

Paragraph in Art. 14

CRIMINAL LAW

There is no similar provision (analogous circumstances) in Art. 14 for aggravating circumstances.

d. Aggravating Circumstances [Art. 14] BASIC PRINCIPLES Raises the penalty for a crime to its maximum period provided by law for that crime, but never beyond such maximum period. The list in this Article is EXCLUSIVE – there are no analogous aggravating circumstances. Degree of proof The aggravating circumstances must be established with moral certainty, with the same degree of proof required to establish the crime itself. Must be alleged in Information

BOTH generic and qualifying aggravating circumstances must be alleged in the Information in order to be considered by the Court in imposing the sentence. [Rule 110, Sec. 9, Revised Rules of Criminal Procedure]. This new rule took effect on December 1, 2000, but applies retroactively to pending cases since it is favorable to the accused. Even if not alleged in the information, aggravating circumstances may still be considered as bases for the award of exemplary damages. [People v. Esugon, G.R. No. 195244 (2015)]

Basis

Taking advantage of public office

1

Personal circumstance of the offender and the means to secure the commission of the crime

In contempt of or with insult to public authorities

2

Lack of respect for the public authorities

Page 45 of 310

Requisites The public officer must: 1. Use the influence, prestige or ascendancy which his office gives him 2. As means by which he realizes his purpose. 1. That the public authority is engaged in the exercise of his functions. 2. That the public authority is not the person against whom the crime is committed.

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Aggravating circumstance

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Paragraph in Art. 14

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Basis

Requisites 3.

With insult or lack of regard due to offended party by reason of rank, age, or sex

The offender knows him to be a public authority. 4. His presence has not prevented the offender from committing the criminal act. Rank: Difference between social condition or position between offender and offended party 3

Personal circumstances of the offended party

Dwelling

3

Place of commission of crime

the the

Abuse of confidence

4

Means and ways employed in commission of the crime

Obvious ungratefulness

4

Means and ways employed in commission of the crime

In the palace of the Chief Executive or in his presence, or where public authorities are engaged in the discharge of their duties, or in a place dedicated to religious worship

5

Place of commission of crime

Nighttime

6

Time and place of the commission of the crime Page 46 of 310

the the

Age: Either old age or tender age of the victim Sex: Female 1. Building or structure, exclusively used for rest and comfort. 2. The offended party must not give provocation. 1. That the offended party had trusted the offender. 2. That the offender abused such trust by committing a crime against the offended party. 3. That the abuse of confidence facilitated the commission of the crime. 1. That the offended party had trusted the offender; 2. That the offender abused such trust by committing a crime against the offended party; 3. That the act be committed with obvious ungratefulness. The ungratefulness must be obvious: (1) manifest and (2) clear. Committed: 1. In the palace of the Chief Executive, or 2. In his presence, or 3. Where public authorities are engaged in the discharge of their duties, or 4. In a place dedicated to religious worship 1.

It is specially sought by the offender

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Aggravating circumstance

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Paragraph in Art. 14

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Basis

Requisites 2.

6

Time and place of the commission of the crime

Cuadrilla or with a band

6

Means and ways employed in commission of the crime

On occasion of a calamity

7

Time and place of the commission of the crime

Aid of armed men or means to ensure impunity

8

Means and ways employed in commission of the crime

Recidivism

9

Inclination to commit crime

Reiteracion or habituality

10

Inclination to commit crime

Uninhabited place

Page 47 of 310

The offender purposely took advantage of nighttime; or 3. It facilitated the commission of the offense. The offenders must choose the place as an aid either: 1. to an easy and uninterrupted accomplishment of their criminal designs, or 2. to insure concealment of the offense, that he might thereby be better secured against detection and punishment. [U.S. v. Vitug, G.R. No.5430 (1910) ] There should: 1. Be at least be four persons. 2. At least 4 of them should be armed; 3. And are principals by direct participation. The offender must take advantage of the calamity or misfortune 1. That the armed men or persons took part in the commission of the crime, directly or indirectly. 2. That the accused availed himself of their aid or relied upon them when the crime was committed. 1. That the offender is on trial for an offense; 2. That he was previously convicted by final judgment of another crime; 3. That both the first and the second offenses are embraced in the same title of the Code; 4. That the offender is convicted of the new offense. 1. That the accused is on trial for an offense; 2. That he previously served sentence for another offense to which the law attaches: a. an equal or b. greater penalty, or

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Aggravating circumstance

Paragraph in Art. 14

CRIMINAL LAW

Basis

Requisites c.

for 2 or more crimes to which it attaches lighter penalty than that for the new offense; and 3. That he is convicted of the new offense. There must be two or more principals: 1. The one who gives or offers the price or promise; and 2. The one who accepts it. Both of whom are principals to the former, because he directly induces the latter to commit the crime, and the latter because he commits it. Price, reward, or promise

Inundation, fire, explosion, etc.

poison,

11

Motivating power

12

Means and ways employed in commission of the crime

The price, reward or promise need not: 1. Consist of or refer to material things; or 2. That the same were actually delivered, it being sufficient that the offer made by the principal by inducement was accepted by the principal by direct participation before the commission of the offense. The wasteful means were used by the offender to accomplish a criminal purpose 1. 2.

Evident premeditation

13

Means and ways employed in commission of the crime

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3.

The time when the offender determined to commit the crime; An act manifestly indicating that the culprit has clung to his determination; and A sufficient lapse of time between the determination and execution, to allow him to reflect upon the consequences of his act and to allow his conscience to overcome the resolution of his will.

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Aggravating circumstance

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Paragraph in Art. 14

Basis

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Requisites Craft: intellectual trickery and cunning on the part of the accused

Craft, fraud, or disguise

14

Means and ways employed in commission of the crime

Fraud: insidious words or machinations used to induce the victim to act in a manner which would enable the offender to carry out his design Disguise: any device to conceal identity To TAKE ADVANTAGE of superior strength means to use purposely excessive force out of proportion to the means of defense available to the person attacked.

Superior strength or means to weaken defense

15

Means and ways employed in commission of the crime

Alevosia (treachery)

16

Means and ways employed in commission of the crime

Ignominy

17

Means and ways employed in commission of the crime

Unlawful entry

18

Means and ways employed in commission of the crime

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Superiority may arise from: 1. Aggressor’s sex, build, weapon or number 2. As compared to that of the victim (e.g. accused attacked an unarmed girl with a knife; 3 men stabbed to death the female victim). For the means employed to weaken defense: The means used must NOT totally eliminate possible defense of the victim, otherwise it will fall under treachery. 1. The employment of means of execution that gave the person attacked no opportunity to defend himself or retaliate; and 2. That the offender consciously adopted the particular means, method or form of attack employed by him The means employed or the circumstances brought about must tend to make the effects of the crime MORE HUMILIATING or TO PUT THE OFFENDED PARTY TO SHAME 1. There is unlawful entry when an entrance is effected by a way NOT intended for the purpose.

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Aggravating circumstance

Paragraph in Art. 14

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Basis

Requisites 2. 1.

Breaking wall, floor, roof

19

Means and ways employed in commission of the crime 1.

With aid of persons under 15

20

2.

1.

By motor vehicles, airships, or other similar means

20

2.

Means and ways employed in commission of the crime Repress practice of criminals to avail of minors and take advantage of their irresponsibility Means and ways employed in commission of the crime To counteract the great facilities found by modern criminals as means to commit crime, and flee and abscond

2.

The commission of the crime is committed with the aid of children under 15 years of age

1.

2.

1. Ensañamiento (cruelty)

Aggravating circumstance

21

Means and ways employed in commission of the crime

Specific to

2.

The use of motor vehicle is a means to the commission of the crime, and not merely to facilitate escape Must be (a) motorized vehicles or (b) other efficient means of transportation similar to automobile or airplane [Reyes] That the injury caused be deliberately increased by causing other wrong; That the other wrong be unnecessary for the execution of the purpose of the offender.

Inherent element of 1.

Taking advantage of public office

Unlawful entry must be a means to effect entrance and NOT for escape. Breaking the wall, floor, roof, etc., is a means to the commission of the crime. Breaking the wall, floor, roof, etc., must be a means to effect entrance and NOT for escape.

2. 3. 4.

Accessories under Art. 19, par. 3 (harboring, concealing or assisting in the escape of the principal of the crime); Title VII of Book Two of the RPC [Crimes committed by public officers Malversation under Art. 217 Falsification of document by public officers under Art. 171

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Absorbed by the aggravating circumstance of

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Aggravating circumstance With insult or lack of regard due to offended party by reason of rank, age, or sex Dwelling

Abuse confidence

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Specific to

Crime against persons or honor

Inherent element of PARaS 1. 2. 3. 4.

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Absorbed by the aggravating circumstance of

Parricide Abduction Rape Seduction

Robbery with force upon things STEM 1. Qualified seduction under Art. 337 2. Qualified theft under Art. 310 3. Estafa by conversion or misappropriation under Art. 315 4. Malversation under Art. 217

of

Nighttime

Treachery [People v. Kintuan, G.R. No. 74100 (1987)]

Uninhabited place

Treachery

Cuadrilla or with a band

Pro-TIP: 1. Crimes against PROperty 2. Treason [People v. Manayao, G.R. No. L322 (1947)] 3. Illegal detention [US v. Santiago, G.R. No. 1000 (1903)] 4. Crimes against Persons

Brigandage

Aid of armed men or means to ensure impunity

With a band; treachery [People v. Ferrera, G.R. No. 145727 (2002)] 1. 2.

Inundation, fire, poison, explosion, etc.

Evident premeditation

Treachery [People v. Ampo-an, G.R. No. 75366 (1990)]

Fire: arson Explosion: destruction under Art. 324 3. By means of derailment of locomotive: damages and obstruction to means of communication under Art. 330 Robbery with violence against persons; treason [People v. Racaza G.R. No. L-365 (1949)]; adultery, estafa, and falsification. However, it may be aggravating in robbery with homicide if the premeditation included the killing of the victim. [People v. Valeriano, G.R. Nos. 103604-05 (1993)] Page 51 of 310

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Aggravating circumstance

Specific to

Inherent element of

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Absorbed by the aggravating circumstance of

Craft: Qualified theft [People v. Tiongson, 59 O.G. 4521] Fraud: 1. Preventing the meeting of Congress and similar bodies [Art. 143] 2. Violation of parliamentary immunity [Art. 145] 3.

Craft, fraud, or disguise

4. 5. 6. 7. 8.

Crimes against public interest under Chapt. 3 Crimes committed by public officers under Chapt. 3 Execution of deeds by means of violence or intimidation [Art. 298] Crimes against property under Chapts. 5 and 6 Marriage contracted against provisions of the law [Art. 350] Rape through fraudulent machination

Superior strength or means to weaken defense

For means employed to weaken defense: 1. specific to crimes against persons; 2. and sometimes against person and property [e.g., robbery with physical injuries, or homicide]

For use of superior strength: inherent in treason [People v. Racaza, supra.]

Alevosia (treachery)

Crimes against persons

Murder by poisoning [People v. Caliso, G.R. No. 131475-76 (2002)]; treason [People v. Racaza, supra.]

Ignominy

C MaRia ClaRa: 1. Coercion (light or grave) 2. Murder 3. “Wanton Robbery for personal gain” [People v. Racaza, supra.] 4. 5. 6.

Crimes against chastity Less serious physical injuries Rape

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Craft and fraud: Absorbed by treachery [People v. Malig, G.R. No. L-2083 (1949)]

For superior strength: Absorbed by cuadrilla or by a band [People v. Escabarte, G.R. No. L42964]; treachery For means employed to weaken defense: absorbed by treachery [People v. Siatong, G.R. No. L-9242 (1957)]

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Aggravating circumstance Unlawful entry

CRIMINAL LAW I

Specific to

Inherent element of

Rape; Murder; Robbery with violence against or intimidation of persons

Trespass to dwelling under Art. 280; Robbery with force upon things under Art. 299(a) and Art. 302 Robbery with force upon things under Art. 299(a) and Art. 302

Breaking wall, floor, roof By motor vehicles, airships, or other similar means

Ensañamiento (cruelty)

(Excludes crimes which cannot be committed by means of motor vehicle, such as estafa [People v. Bagtas, CA-G.R. No. 10823 (1955)]) Rape; wanton robbery for personal gain; crimes where par. 17 also apply [People v. Racaza, supra.]; robbery with homicide [People v. Basca, G.R. No. L11485 (1958)]; other crimes against persons

Page 53 of 310

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Absorbed by the aggravating circumstance of

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KINDS OF AGGRAVATING CIRCUMSTANCES 1. GENERIC. Those that can generally apply to all crimes. Nos. 1, 2, 3 (dwelling), 4, 5, 6, 9, 10, 14, 18, 19, and 20 except “by means of motor vehicles”. A generic aggravating circumstance may be offset by a generic mitigating circumstance. 2. SPECIFIC. Those that apply only to particular crimes. Nos. 3 (except dwelling), 15, 16, 17 and 21. 3. QUALIFYING. Those that change the nature of the crime (i.e. Art. 248 enumerate the qualifying AC which qualifies the killing of person to murder). If two or more possible qualifying circumstances were alleged and proven, only one would qualify the offense and the others would be generic aggravating. Generic aggravating circumstances Increases the penalty which should be imposed upon the accused to the MAXIMUM PERIOD.

It is not an ingredient of the crime. It only affects the penalty to be imposed but the crime remains the same The circumstance can be offset by an ordinary mitigating circumstance

Qualifying aggravating circumstances Does not only give the crime its proper and exclusive name but also places the author thereof in such a situation as to deserve no other penalty than that specially prescribed by law for said crime. The circumstance affects the nature of the crime itself such that the offender shall be liable for a more serious crime. The circumstance is actually an ingredient of the crime Being an ingredient of the crime, it cannot be offset by any mitigating circumstance

People v. Lab-eo, G.R. No. 133438 (2002):

The fact that the circumstances were described as aggravating instead of qualifying does not take the Information out of the purview of Article 248 of the Revised Penal Code. Article 248 does not use the word qualifying or aggravating in enumerating the circumstances that raise a killing to the category of murder. Article 248 merely refers to

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the enumerated circumstances as the attendant

circumstances.

In the instant case, the Information specifically alleges that evident premeditation, treachery, and abuse of superior strength attended the commission of the offense. This is more than sufficient to comply with the requirements of Article 248. 4. INHERENT. Those that must accompany the commission of the crime and is therefore not considered in increasing the penalty to be imposed such as evident premeditation in theft, robbery, estafa, adultery and concubinage. 5. SPECIAL. Those which arise under special conditions to increase the penalty of the offense and cannot be offset by mitigating circumstances such as: a. quasi-recidivism [Art. 160] b. complex crimes [Art. 48] c. error in personae [Art. 49] d. taking advantage of public position and membership in an organized/syndicated crime group [Art. 62] e. sec. 4, PD 1613 Aggravating circumstances which do not increase the penalty: a. Aggravating circumstances which in themselves constitute a crime especially punishable by law. b. Aggravating circumstances which are included by the law in defining a crime and prescribing the penalty. [Art. 62, par. 1]. c. The same rule shall apply with respect to any aggravating circumstance inherent in the crime to such a degree that it must of necessity accompany the commission thereof. [Art. 62, par. 2]. Aggravating circumstances which are personal to the offenders Aggravating circumstances which arise from (1) moral attributes of offender (evident premeditation); (2) from his private relations with offended party (consanguinity and affinity); and (3) from any other personal cause (recidivism), shall only serve to aggravate the liability of the principals, accomplices, and accessories as to whom such circumstances. [Art. 62, par. 3]. Aggravating circumstances which depend for their application upon the knowledge of offenders

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Circumstances which consists (1) in the material execution of the act; (2) in the means employed to accomplish it (nighttime), shall serve to aggravate the liability of only the persons who had knowledge of them at the time of the execution of the act or their cooperation therein. [Art. 62, par. 4] LIST OF AGGRAVATING CIRCUMSTANCES

1. “That advantage be taken by the offender of his public position.” This is applicable only when the offender is a public officer. To realize his purpose, the offender must use: a. Influence b. Prestige or c. Ascendency The essence of the matter is presented in the inquiry, “did the accused abuse his office in order to commit the crime?” [U.S. v. Rodriguez, G.R. No. L-3774 (1907)] If the accused could have perpetrated the crime even without occupying his position, there is no abuse of public position. [People v. Villamor, G.R. Nos. 14040708 (2002)] When a public officer commits a common crime independent of his official functions and does acts that are not connected with the duties of his office, he should be punished as a private individual without this aggravating circumstance. When in the commission of the crime, advantage was taken by the offender of his public position, the penalty to be imposed shall be in its maximum regardless of mitigating circumstances. [RA 7659]

People v. Gapasin, G.R. No. 73489 (1994):

The defendant was issued a mission order to investigate the alleged presence of unidentified armed men in a certain barrio in Isabela. The defendant claimed that he acted in self-defense when he killed the victim, who the former said was one of the men who illegally possessed firearms in the area. Held: The aggravating circumstance of taking advantage of public position was appreciated. The defendant, a member of the Philippine Constabulary, committed the crime with an armalite which was issued to him when he received the mission order.

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2. “That the crime be committed in contempt or with insult to the public authorities.” Requisites. a. The public authority is engaged in the exercise of his functions b. The public authority is not the person against whom the crime is committed If the crime is committed against the public authority while in the performance of his duty, the offender commits direct assault instead. c. Offender knows him to be a public authority Lack of such knowledge indicates lack of intention to insult public authority d. His presence has not prevented the offender from committing the criminal act. Failure to allege knowledge in Information Failure to expressly allege in the information that the accused had the knowledge that the person attacked was a person in authority does not render the information defective so long as there are facts therein from which it can be implied that the accused knew that the person attacked was a person in authority [People v. Balbar, G.R. Nos. L-20216-17 (1967)]

3. “That the act be committed with insult or in disregard of the respect due the offended party on account of his rank, age, or sex, or that is be committed in the dwelling of the offended party, if the latter has not given provocation.” Four circumstances are enumerated in this paragraph, which can be considered singly or together. If all the four circumstances are present, they have the weight of one aggravating circumstance only. a. Insult or disregard on account of 1. Rank – designation or title used to fix the relative position of the offended party in reference to others. • There must be a difference in the social condition of the offender and offended party 2. Age

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• 3.

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May refer to old age or tender age of the victim

c.

Sex • Refers to the female sex

b. Act committed in dwelling of offended party, if latter has not given provocation 1. Dwelling • Building or structure, exclusively used for rest and comfort • A market stall where the victim is sleeping is not a dwelling [People v Magnaye, G.R. No. L-3510 (1951)] • Dwelling need not be owned by the offended party. It is enough that he used the place for his peace of mind, rest, comfort and privacy. 2. Provocation is understood as • Given by offended party • Sufficient • Immediate to the commission of the crime INSULT OR DISREGARD Deliberately intended There must be evidence that in the commission of the crime, the accused deliberately intended to offend or insult the sex or age of the offended party. [People v. Mangsat, G.R. No. L-34675]

People v. Nismal, G.R. No. L-51257 (1982):

The accused is guilty beyond reasonable doubt of robbery with homicide as alleged in the information. The accused being the security guard of the bank while the victim was the former’s superior. Indeed, it was his duty precisely to defend the victim from any aggressor. But in disregard of the respect he owed to the victim, on account of superior rank to him, he assaulted the latter. Such disregard of respect is an aggravating circumstance. Guidelines to prove age The Court established the guidelines in appreciating age, either as an element of the crime or as a qualifying circumstance, as follows: a. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party. b. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age.

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If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim's mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances: 1. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old; 2. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old; 3. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old. 4. In the absence of a certificate of live birth, authentic document, or the testimony of the victim's mother or relatives concerning the victim's age, the complainant's testimony will suffice provided that it is expressly and clearly admitted by the accused. 5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him. [People v. Arpon, G.R. No. 183563 (2011)]

The aggravating circumstance is NOT to be considered in the following cases: a. When the offender acted with passion and obfuscation. [People v. Ibañez, G.R. No. 197813] b. When there exists a relationship between the offended party and the offender. [People v. Valencia, G.R. No. L-39864 (1993)] c. When the condition of being a woman is indispensable in the commission of the crime. Thus, in rape, abduction, or seduction, sex is not aggravating. In crimes against persons or honor only This aggravating circumstance may be taken into account only in crimes against persons or honor, when in the commission of the crime there is some insult or disrespect shown to rank, age, or sex. lt is not proper to consider this aggravating circumstance in crimes against property. [People v. Pagal, G.R. No. L-32040 (1977)] Dwelling

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It is not necessary that the victim owns where she lives or dwells. A lessee, boarder, or bedspacer can consider such place as his home, the sanctity of which the law seeks to uphold. [People v Daniel, G.R. No. L40330 (1978)]

People v. Tao, G.R. No. 133872 (2000):

Dwelling cannot be appreciated as an aggravating circumstance in this case because the rape was committed in the ground floor of a two-story structure, the lower floor being used as a video rental store and not as a private place of abode or residence. This is considered an AC because in certain cases, there is an abuse of confidence which the offended party reposed in the offender by opening the door to him. Not domicile Dwelling should not be understood in the concept of a domicile: A person has more than one dwelling. So, if a man has so many wives and he gave them places of their own, each one is his own dwelling. If he is killed there, dwelling will be aggravating, provided that he also stays there once in a while. If a crime of adultery was committed, dwelling is considered aggravating on the part of the paramour. However, if the paramour was also residing in the same dwelling, it will not be aggravating. Even without entry to dwelling It is not necessary that the accused entered the dwelling of the victim to commit the offense: it is enough that the victim was attacked inside his own house. [People v. Ompaid, G.R. No. L-23513 (1969)] When killing outside the dwelling Dwelling is till aggravating if the commission of the crime began inside the dwelling. Includes dependencies The word dwelling includes every dependency of the house that forms an integral part thereof and therefore it includes the staircase of the house and much more, its terrace. [People v. Rios, G.R. No. 132632 (2000)]

People v. Arizobal, G.R. Nos. 135051-52 (2000): Generally, dwelling is considered inherent in the crimes which can only be committed in the abode of the victim, such as trespass to dwelling and robbery in an inhabited place.

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However, in robbery with homicide the authors thereof can commit the heinous crime without transgressing the sanctity of the victim's domicile. In the case at bar, the robbers demonstrated an impudent disregard of the inviolability of the victims' abode when they forced their way in, looted their houses, intimidated and coerced their inhabitants into submission, disabled Laurencio and Jimmy by tying their hands before dragging them out of the house to be killed. Dwelling is not aggravating in the following cases: a. When both offender and offended party are occupants of the same house [U.S. v. Rodriguez, supra.], and this is true even if offender is a servant of the house. [People v. Caliso, supra.] b. When the robbery is committed by the use of force upon things, dwelling is not aggravating because it is inherent. But dwelling is aggravating in robbery with violence or intimidation of persons because this class or robbery can be committed without the necessity of trespassing the sanctity of the offended party’s house. [People v. Cabato, G.R. No. L-37300 (1988)] c. In the crime of trespass to dwelling, it is inherent or included by law in defining the crime. d. When the owner of the dwelling gave sufficient and immediate provocation. [Art. 14 par. 3] The presence of the aggravating circumstance of dwelling warrants the imposition of exemplary damages against the appellant. [People v. Rios, supra.]

4. “That the act be committed with abuse of confidence or obvious ungratefulness.” Par. 4 provides two aggravating circumstances – abuse of confidence and obvious ungratefulness. If both are present in the same case, they must be independently appreciated. ABUSE OF CONFIDENCE (ABUSO DE

CONFIANZA)

Requisites a. Offended party trusted the offender • The confidence between the offender and the offended party must be immediate and personal. If two persons just met for the first time, there can be no personal or immediate relationship upon which confidence might

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rest between them. [People v. Mandolado, G.R. No. L-51304-05 (1983)] b. Offender abused such trust c. Abuse of confidence facilitated the commission of the crime • The confidence must be a means of facilitating the commission of the crime, the culprit taking advantage of the offended party's belief that the former would not abuse said confidence. [People v Arrojado, G.R. No. 130492 (2001)] OBVIOUS UNGRATEFULNESS Requisites a. Offended party trusted the offender b. Offender abused such trust c. Act committed with obvious ungratefulness

5. “That the crime be committed in the palace of the chief executive or in his presence, or where public authorities are engaged in the discharge of their duties, or in a place dedicated to religious worship.” If it is the Malacañang Palace or a church it is aggravating regardless of whether State or official or religious functions are being held. The President need not be in the palace. Cemeteries are not places dedicated for religious worship. An electoral precinct during election day is a place “where public authorities are engaged in their official duties.” Presence alone of the Chief Executive His presence alone in any place where the crime is committed is enough to constitute the AC. It also applies even if he is not engaged in the discharge of his duties in the place where the crime was committed.

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Offender must have intended Offender must have the intention to commit a crime when he entered the place. [People v. Jaurigue, C.A. No. 384 (1946)] Par. 5 Where public Par. 2 authorities are Contempt or insult to engaged in the public authorities discharge of their duties. Public authorities are engaged in the performance of their duties. Public duty is Public duty is performed in their performed outside of office their office The offended party The public authority may or may not be the should not be the public authority offended party As regards the place where the public authorities are engaged in the discharge of their duties, there must be some performance of public functions.

6. “That the crime be committed (1) in the night time, or (2) in an uninhabited place, or (3) by a band, whenever such circumstances may facilitate the commission of the offense.” When considered separately If they concur in the commission of the crime, they are considered as one aggravating circumstance. These three may be considered separately: a. when their elements are distinctly perceived and b. can subsist independently. c. revealing a greater degree of perversity. General requisites a. When it facilitated the commission of the crime; or b. When especially sought for by the offender to insure the commission of the crime or for the purpose of impunity; or c. When the offender took advantage thereof for the purpose of impunity. Nighttime (Nocturnidad) The commission of the crime must begin and be accomplished in the nighttime (after sunset and before sunrise, cf. Art. 13, Civil Code).

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Well-lighted place When the place is illuminated by light, nighttime is not aggravating. Two tests for nocturnity In determining nocturnity, two tests are employed in the alternative: a. the objective test, under which nighttime is aggravating because the darkness facilitated the commission of the offense; and b. the subjective test, under which nighttime is aggravating because the darkness was purposely sought by the offender. [People v. Ventura, supra.] Nighttime and treachery General Rule: Nighttime is absorbed in treachery Exception: Where both the treacherous mode of attack and nocturnity were deliberately chosen upon the same case. Both may be perceived distinct from one another. [People v Berdida, G.R. No. L-20183 (1966)] Uninhabited place It is determined not by the distance of the nearest house to the scene of the crime but whether or not in the place of the commission of the offense, there was a reasonable possibility of the victim receiving some help. [People v. Desalisa, G,R No. 95262 (1994)] Solitude must be sought to better attain the criminal purpose. [People v. Aguinaldo, G.R. No. 33843 (1931)] When place of crime could be seen and the voice of the victim could be heard from a nearby house, the place of the crime is not “uninhabited.” Band Whenever more than three armed malefactors shall have acted together in the commission of an offense, it shall be deemed to have been committed by a band. All four persons must be principals by direct participation. Abuse of superior strength and use of firearms are absorbed by the aggravating circumstance of by a band. [People v. Escabarte, G.R. No. L-42964 (1988)]

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7. “That the crime be committed on the occasion of a conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune.” The rationale for this AC is the debased form of criminality of one who, in the midst of a great calamity, instead of lending aid to the afflicted, adds to their suffering by taking advantage of their misfortune and despoiling them. The offender must take advantage of the calamity or misfortune. “Or other calamity or misfortune.” Refers to other conditions of distress similar to “conflagration, shipwreck, earthquake or epidemic.”

8. “That the crime be committed with the aid of armed men or persons who insure or afford impunity.” Armed men. Also covers armed women. [People v. Licop, G.R. No. L06061 (1954)] Requisites. a. That the armed men or persons took part in the commission of the crime, directly or indirectly b. The accused availed himself of their aid or relied upon them while the crime was committed Not applicable a. When both the attacking party and the party attacked were equally armed. b. When the accused as well as those who cooperated with him in the commission of the crime acted under the same plan and for the same purpose. c. Casual presence, or when the offender did not avail himself of their aid nor knowingly count upon their assistance in the commission of the crime. Par. 6 By a band Requires more than 3 armed malefactors Requires that more than three armed malefactors shall have acted together in the

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Par. 8 With aid of armed men At least two armed men This circumstance is present even if one of the offenders merely relied on their aid, for

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commission of an offense Band members are all principals

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actual aid is not necessary Armed men are mere accomplices

9. “That the accused is a recidivist.”

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When arson and when homicide/murder If the intent is to kill, there is murder even if the house is burned in the process. If the intent is to destroy property, the crime is arson even if someone dies as a consequence.

13. “That the act be committed with evident premeditation.”

See Recidivism under Multiple Offenders.

10. “That the offender has been previously punished by an offense to which the law attaches an equal or greater penalty or for two or more crimes to which it attaches a lighter penalty.” See Reiteracion under Multiple Offenders.

11. “That the crime be committed in consideration of a price, reward, or promise.” When this AC is present, it affects not only the person who received the price or reward, but also the person who gave it. The evidence must show that one of the accused used money or valuable consideration for the purpose of inducing another to perform the deed. [U.S. v. Gamao, supra.] Voluntarily giving such price or reward without previous promise, as an expression of appreciation for the sympathy and aid, is not taken into consideration to increase the penalty.

12. “That the crime be committed by means of inundation, fire, poison, explosion, stranding of a vessel or international damage thereto, derailment of a locomotive, or by the use of any other artifice involving great waste and ruin.” When qualifying and when generic aggravating Unless used by the offender as a means to accomplish a criminal purpose, any of the circumstances in paragraph 12 cannot be considered to increase the penalty or to change the nature of the offense. When another AC already qualifies the crime, any of these AC’s shall be considered as generic aggravating circumstance only.

Evident premeditation implies: a. a deliberate planning of the act b. before executing it. Essence of premeditation a. An opportunity to coolly and serenely think and deliberate a. on the meaning and b. consequences of what he planned to do. b. An interval long enough for his conscience and better judgment to overcome his evil desire and scheme. [People v. Durante, G.R. No. L-31101 (1929)] Degree of proof Evident premeditation must be proven as convincingly as the crime itself. [People v. Bibat, G.R. No. 124319 (1998)] For the circumstance of evident premeditation to be appreciated, the prosecution must present clear and positive evidence of the planning and preparation undertaken by the offender prior to the commission of the crime. [People v. Mondijar, G.R. No. 141914 (2002)] Anger or grudge There is no evident premeditation when the fracas was the result, not of a deliberate plan but of rising tempers, or when the attack was made in the heat of anger. [People v. Torpio (2004)] The mere existence of ill-feeling or grudge between the parties is not sufficient to establish premeditated killing. There must be an outward act showing or manifesting criminal intent. [People v. Bernal, G.R. No. 113685 (2002)]

People v. Biso, G.R. No. 111098-99 (2003):

Dario, a black belt in karate, entered an eatery, seated himself beside Teresita and made sexual advances to her in the presence of her brother, Eduardo. Eduardo contacted his cousin, Biso, an ex-convict and a known toughie in the area, and related to him what Dario had done to Teresita. Eduardo, Pio, and 2 others decided to confront Dario. They positioned themselves in the alley

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near the house of Dario. When Dario arrived on board a taxicab, the four assaulted Dario. Eduardo held, with his right hand, the wrist of Dario and covered the mouth of Dario with his left hand. The 2 others held Dario's right hand and hair. Pio then stabbed Dario near the breast with a fan knife. Eduardo stabbed Dario and fled with his three companions from the scene. Held: There was no evident premeditation. The prosecution failed to prove that the four intended to kill Dario and if they did intend to kill him, the prosecution failed to prove how the malefactors intended to consummate the crime. Except for the fact that the appellant and his three companions waited in an alley for Dario to return to his house, the prosecution failed to prove any overt acts on the part of the appellant and his cohorts showing that that they had clung to any plan to kill the victim. Other notes on evident premeditation a. The premeditation must be based upon external facts, and must be evident, not merely suspected indicating deliberate planning. b. The date and time when the offender determined to commit the crime is essential, because the lapse of time for the purpose of the third requisite is computed from that date and time. It may not be appreciated absent any proof as to how and when the plan to kill was hatched, OR what time elapsed before it was carried out. c. After the offenders had determined to commit the crime, there must be a manifest indication that they clung to their determination. Premeditation occurs when crime is deliberately planned and PERSISTENTLY and CONTINUOUSLY followed the plan. d. Where conspiracy is directly established, with proof of the attendant deliberation and selection of the method, time and means of executing the crime, the existence of evident premeditation can be taken for granted. [U.S. v. Cornejo, G.R. No. 9773 (1914)] Conspiracy presupposes premeditation, EXCEPT, when conspiracy is merely IMPLIED. e. In order that premeditation may exist, it is not necessary that the accused premeditated the killing of a particular individual. If the offender premeditated on the killing of any person (general attack), it is proper to consider against the offender the aggravating circumstance of evident premeditation, because whoever is killed by him is contemplated in the premeditation. [US v. Manalinde, G.R. No. L-5292 (1909)]

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Mere threats without the second element does not show evident premeditation.

f.

14. “That the craft, fraud or disguise be employed.” Craft. It is employed as a scheme in the execution of the crime.

People v. Labuguen, G.R. No. 127849 (2000):

Craft involves intellectual trickery and cunning on the part of the offender. When there is a direct inducement by insidious words or machinations, fraud is present. By saying that he would accompany the victim to see the cows which the latter intended to buy, appellant was able to lure the victim to go with him. Distinguished from fraud Craft Fraud Done for DIRECT Done in order to INDUCEMENT by NOT AROUSE insidious words and SUSPICION machinations Craft and fraud may be absorbed in treachery if they have been deliberately adopted as the means, methods or forms for the treacherous strategy. Otherwise, they may co-exist independently where they are adopted for a different purpose in the commission of the crime. [People v. Lab-eo, supra.] Disguise Resorting to any device to conceal identity. Test The test of disguise is whether the device or contrivance resorted to by the offender was intended to or did make identification more difficult, such as the use of a mask, false hair or beard. When still recognized But if in spite of the use of handkerchief to cover their faces, the culprits were recognized by the victim, disguise is not considered aggravating.

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People v. Empacis, G.R. No. 95756 (1993):

The appellants were convicted of robbery with homicide, which the Supreme Court affirmed. The appellants pretended to be bona fide customers of the victim's store and on his pretext gained entry into the latter's store and later, into another part of his dwelling. This Court has held stratagems and ruses of this sort to constitute the aggravating circumstance of fraud or craft, e.g., where the accused — 1. pretended to be constabulary soldiers and by that ploy gained entry into the residence of their prey whom they thereafter robbed and killed; 2. pretended to be needful of medical treatment, and through this artifice, entered the house of the victim whom they thereupon robbed and killed; 3. pretended to be wayfarers who had lost their way and by this means gained entry into a house, in which they then perpetrated the crime of robbery with homicide; 4. pretended to be customer wanting to buy a bottle of wine; 5. pretended to be co-passengers of the victim in a public utility vehicle; 6. posed as customers wishing to buy cigarettes; and as being thirsty, asking for drink of water.

15. “That advantage be taken of superior strength, or means be employed to weaken the defense.” Superior strength The aggravating circumstance of abuse of superior strength depends on the age, size and strength of the parties. It is considered whenever there is a notorious inequality of forces between the victim and the aggressor, assessing a superiority of strength notoriously advantageous for the aggressor which is selected or taken advantage of by him in the commission of the crime. [People v. Barcelon, G.R. No. 144308 (2002)]. Abuse of superior strength is present when the offender uses a powerful weapon which is out of proportion to the defense available to the offended party. [People v. Padilla, G.R. No. G.R. No. 126124 (1999)] More in number Mere superiority in number would not necessarily indicate the attendance of abuse of superior strength.

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The prosecution should still prove that the assailants purposely used excessive force out of proportion to the means of defense available to the persons attacked. [People v. Sansaet, G.R. No. 139330 (2002)]. There must be a deliberate intent on the part of the malefactors to take advantage of their greater number. The prosecution must clearly show the offenders' deliberate intent to do so. [People v. Lobrigas, G.R. No. 147649 (2002)] No advantage of superior strength a. one who attacks is overcome with passion and obfuscation b. when quarrel arose unexpectedly and the fatal blow was struck while victim and accused were struggling. By a band When the offense is committed by more than 3 armed malefactors regardless of the comparative strength of the victim.

Abuse of superior strength The gravamen of abuse of superiority is the taking advantage by the culprits of their collective strength to overpower their weaker victims.

Weaken defense An example is when the accused intentionally intoxicated the victim.

16. “That the act be committed with treachery (alevosia).” Treachery When the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make. The essence of treachery is that by virtue of the means, method or form employed by the offender, the offended party was not able to put up any defense. When offended party was able to self-defend If the offended party was able to put up a defense, even only a token one, there is no treachery. Instead, some other aggravating circumstance may be present but it is no longer treachery. The treacherous character of the means employed in the aggression does not depend upon the result

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thereof but upon the means itself. Thus, frustrated murder could be aggravated by treachery.

People v. Escote Jr., G.R. No. 140756 (2003):

Art. 14, par. 16 of the RPC is a reproduction of the 1850 Penal Code of Spain and the Codigo Penal Reformado de 1870 with a slight difference. In the latter law, the words los delitos contra las personas (the persons) are used, whereas in Article 14, paragraph 6, of the Revised Penal Code, the words “crimes against the person” are used. Going by the letter of the law, treachery is applicable only to crimes against persons as enumerated in Title Eight, Chapters One and Two, Book II of the Revised Penal Code. However, the Supreme Court of Spain has consistently applied treachery to robbery with homicide, classified as a crime against property. In its Sentencia dated March 14, 1877, the Supreme Court of Spain declared that treachery is a generic aggravating circumstance not only in crimes against persons but also in robbery with homicide. This is so, the high tribunal ruled, because when robbery is coupled with crimes committed against persons, the crime is not only an assault (ataca) on the property of the victims but also of the victims themselves (ofende). In fine, in the application of treachery as a generic aggravating circumstance to robbery with homicide, the law looks at the constituent crime of homicide which is a crime against persons and not at the constituent crime of robbery which is a crime against property. Treachery is applied to the constituent crime of homicide and not to the constituent crime of robbery of the special complex crime of robbery with homicide. The crime of robbery with homicide does not lose its classification as a crime against property or as a special complex and single and indivisible crime simply because treachery is appreciated as a generic aggravating circumstance. Treachery merely increases the penalty for the crime conformably with Article 63 of the Revised Penal Code absent any generic mitigating circumstance. Preparation versus sudden attack The mode of attack must be consciously adopted. The accused must make some preparation to kill the deceased in such manner as to insure the execution of the crime or to make it impossible or hard for the

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person attacked to defend himself or retaliate. [People v. Tumaob, G.R. Mo. 125690 (1998)] However, a sudden attack by the assailant, whether frontally or from behind, is treachery if he deliberately adopted such mode of attack with the purpose of depriving the victim of a chance to either fight or retreat. [People v. Lab-eo, supra.] Examples of attacks showing intention to eliminate risk a. Victim asleep b. Victim half-awake or just awakened c. Victim grappling or being held. d. Attacked from behind Use of guns There is treachery when the victim is shot, albeit frontally, with his hands raised to show that he would not fight, or because of fright, or to try to ward off the shots that were to come. This circumstance constitutes treachery because the victim was clearly in a defenseless position. [People v. Dulos, G.R. No. 107328 (1994)] Once a gun is drawn against a person, the means methods and forms employed for its execution is already conceived. And once it is tended directly and specifically to insure its execution, it consequently produces the conscious and deliberate intention. Finally if all the acts of execution had been effectively done without risk on the part of the offender arising from any defense coming from the offended party, treachery results. [People v. Gonzales, Jr., G.R. No. 139542 (2001)] Continuous and non-continuous aggression a. When the aggression is CONTINUOUS, treachery must be present in the BEGINNING of the assault. b. When the assault WAS NOT CONTINUOUS, in that there was an interruption, it is sufficient that treachery was present AT THE MOMENT THE FATAL BLOW WAS GIVEN.

People v. Malejana, G.R. No. 145002 (2006):

Treachery may still be appreciated even when the victim was forewarned of danger to his person. What is decisive is that the execution of the attack made it impossible for the victim to defend himself or to retaliate. Thus, even a frontal attack could be treacherous when unexpected and on an unarmed victim who would be in no position to repel the attack or avoid it.

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Degree of proof Treachery cannot be presumed. The suddenness of the attack does not, of itself, suffice to support a finding of alevosia, even if the purpose was to kill, so long as the decision was made all of a sudden and the victim’s helpless position was accidental. [People v. Lubreo, G.R. No. 74146 (1991)]. It must be proved by clear and convincing evidence. [People v. Santos, G.R. No. 122935 (2000)].

People v. Oandasan, Jr., G.R. No. 194605

(2016): Treachery as an aggravating or attendant circumstance must be established beyond reasonable doubt. This quantum is hardly achieved if there is no testimony showing how the accused actually commenced the assault against the victim. But to absolutely require such testimony in all cases would cause some murders committed without eyewitnesses to go unpunished by the law. To avoid that most undesirable situation, the Rules of Court permits a resort not only to direct evidence but also to circumstantial evidence. Conspiracy When there is conspiracy in the commission of a crime, treachery can be appreciated against all conspirators. [People v. Ong, G.R. No. L-34497 (1975)] There is murder even if there is no intent to kill if the homicide is accompanied by treachery.

People v. Cagoco, G.R. No. L-38511 (1933):

The appellant boxed the victim’s head from behind and ran away. The blow caused the victim to fall and his head to hit the asphalt road. The victim died after. The Supreme Court ruled that even if there was no intent to kill, the appellant remains liable for the death of the victim as a direct consequence of the appellant’s fist-blow against the victim’s head. Since the accused struck the deceased from behind and without warning, he acted with treachery. This then qualifies the crime to murder. When not aggravating. a. When meeting is incidental. b. When no other witness in the offense. c. Witness could not provide full details of the attack. d. When attack is frontal. EXCEPT: When victims was tied. e. When a child is attacked.

f. g. h. i.

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When victim was already defending himself. When victim had a chance to prepare. When attack preceded by a warning. When attack was preceded by heated discussion.

17. “That means be employed or circumstances brought about which add ignominy to the natural effects of the act.” (ignominy) It is a circumstance pertaining to the moral order, which adds disgrace to the material injury caused by the crime. Raping a woman from behind is ignominious because that is not the normal form of intercourse, it is something which offends the morals of the offended woman. This is how animals do it. [People v. Siao, G.R. No. 126021 (2000)]

People v. Cachola, G.R. No. 135047 (2004):

For ignominy to be appreciated, it is required that the offense be committed in a manner that tends to make its effect more humiliating, thus adding to the victim's moral suffering. Where the victim was already dead when his body or a part thereof was dismembered, ignominy cannot be taken against the accused. In this case, the information states that Victorino's sexual organ was severed after he was shot and there is no allegation that it was done to add ignominy to the natural effects of the act. We cannot, therefore, consider ignominy as an aggravating circumstance.

People v. Bumidang, G.R. No. 130630 (2000):

The aggravating circumstance of ignominy shall be taken into account if means are employed or circumstances brought about which add ignominy to the natural effects of the offense; or if the crime was committed in a manner that tends to make its effects more humiliating to the victim, that is, add to her moral suffering. It was established that Baliwang used the flashlight and examined the genital of Gloria before he ravished her. He committed his bestial deed in the presence of Gloria's old father. These facts clearly show that Baliwang deliberately wanted to further humiliate Gloria, thereby aggravating and compounding her moral sufferings.

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18. “that the crime be committed after an unlawful entry.” There is no unlawful entry when the door was already broken and thereafter the accused made an entry thru the broken door. The breaking of the door is covered by paragraph 19.

19. “That as a means to the commission of the crime, a wall, roof, floor, door, or window be broken.” For entrance, not escape/exit This circumstance is aggravating only when the offender resorted to any means in order to enter the place. Unlawful entry and breaking of wall, roof, etc., distinguished. Breaking of Unlawful wall, roof, entry etc. There must be a breaking of the No Yes entrance Entrance actually Yes No happened Must be a means to the commission No Yes of the crime When breaking of door or window is lawful

Sec. 11, Rule. 113. Right of officer to break into building or enclosure – Right of officer to break into

building or enclosure. — An officer, in order to make an arrest either by virtue of a warrant, or without a warrant as provided in section 5, may break into any building or enclosure where the person to be arrested is or is reasonably believed to be, if he is refused admittance thereto, after announcing his authority and purpose.

Sec. 7, Rule 126. Right to break door or window to effect search – The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant or liberate himself or any person lawfully aiding him when unlawfully detained therein.

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20. “That the crime be committed (a) with the aid of persons under fifteen years of age or (b) by means of motor vehicles, motorized watercraft, airships, or other similar means.” With the aid of persons under 15 years of age; basis To repress, so far as possible, the frequent practice resorted to by professional criminals of availing themselves of minors taking advantage of their lack of criminal responsibility (remember that minors are given leniency when they commit a crime) By means of a motor vehicle; basis To counteract the great facilities found by modern criminals in said means to commit crime and flee and abscond once the same is committed. This circumstance is aggravating only when used in the commission of the offense. Motor vehicles in escape If motor vehicles are used only in the escape of the offender, it is not aggravating. It must have been used to facilitate the commission of the crime to be aggravating.

21. “That the wrong done in the commission of the crime be deliberately augmented by causing other wrong not necessary for its commissions.” (cruelty) Requisites a. That the injury caused be deliberately increased by causing the other wrong b. The other wrong be unnecessary for the execution of the purpose of the offender For it to exist, it must be shown that the accused enjoyed and delighted in making his victim suffer. Not cruelty, but outraging the corpse If the victim was already dead when the acts of mutilation were being performed, this would also qualify the killing to murder due to outraging of his corpse. There must be proof that the wounds inflicted on the victim were done while he was still alive in order to be considered cruelty. Ignominy

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Cruelty

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Shocks the moral conscience of man Refers to the moral effect of a crime and it pertains to the moral order, whether or not the victim is dead or alive

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Physical Refers to the physical suffering of the victim so he has to be alive

People v. Catian, G.R. No. 139693 (2002):

Catian repeatedly struck Willy with a "chako" on the head, causing Willy to fall on his knees. Calunod seconded by striking the victim with a piece of wood on the face. When Willy finally collapsed, Sumalpong picked him up, carried him over his shoulder, and carried Willy to a place where they burned Willy. Held: The circumstance of cruelty may not be considered as there is no showing that the victim was burned while he was still alive. For cruelty to exist there must be proof showing that the accused delighted in making their victim suffer slowly and gradually, causing him unnecessary physical and moral pain in the consummation of the criminal act. No proof was presented that would show that accused appellants deliberately and wantonly augmented the suffering of their victim.

22. Special aggravating and qualifying circumstances

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period to death, if committed with any of the following attendant circumstances: 1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity. 2. In consideration of a price, reward, or promise. 3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a street car or locomotive, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin. 4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity. 5. With evident premeditation. 6. 6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse. In order to qualify a killing into murder, the crime must be attended by the enumerated qualifying circumstances of Article 248. If it is not, the killing is homicide. Rape

Art. 266-B. Penalty – Rape under paragraph 1 of

Art. 62 of RPC has been revised by RA 7659 to include the following:

Art. 62. – The maximum penalty shall be imposed if the offense was committed by any group who belongs to an organized/syndicated crime group.

An organized/syndicated crime group means a group of two or more persons collaborating, confederating or mutually helping one another for purposes of gain in the commission of any crime. Hence, an organized or syndicated crime group committing a crime is also another aggravating circumstance. Murder

Article 248. Murder – Any person who, not

falling within the provisions of Article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion temporal in its maximum

the next preceding article shall be punished by reclusion perpetua. xxx The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim; [See alternative circumstance] 2. When the victim is under the custody of the police or military authorities or any law enforcement or penal institution; 3. When the rape is committed in full view of the spouse, parent, any of the children or other relatives within the third civil degree of consanguinity; [See ignominy]

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4.

When the victim is a religious engaged in legitimate religious vocation or calling and is personally known to be such by the offender before or at the time of the commission of the crime; 5. When the victim is a child below seven (7) years old; 6. When the offender knows that he is afflicted with the Human Immuno-Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmissible disease and the virus or disease is transmitted to the victim; 7. When committed by any member of the Armed Forces of the Philippines or paramilitary units thereof or the Philippine National Police or any law enforcement agency or penal institution, when the offender took advantage of his position to facilitate the commission of the crime; [See taking advantage of public position] 8. When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation or disability; 9. When the offender knew of the pregnancy of the offended party at the time of the commission of the crime; and 10. When the offender knew of the mental disability, emotional disorder and/or physical handicap of the offended party at the time of the commission of the crime. The ten qualifying circumstances of rape aggravates the crime of rape, and increases its penalty death. Other felonies in the RPC The following are other felonies in the Revised Penal Code with qualifying and/or special aggravating circumstances. [GRo VIDS] a. Grave threats [Art. 282] b. 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. 295] c. Robbery in an uninhabited place and by a band [Art. 300 in rel. to Art. 299] d. Violation of domicile [Art. 128, par. 2] e. Interruption of religious worship [Art. 132, par. 2] f. Direct assault [Art. 148] g. Slavery [Art. 272, par. 2] Other special circumstances Use of explosives

aggravating

and

qualifying

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Decree Codifying the Laws on Illegal/ Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition, of Firearms, Ammunition or Explosives [P.D. 1866, as amended by R.A. No. 8294] as an aggravating circumstance. Paragraphs 1 and 2 of Section 3 state:

Sec. 3. Unlawful manufacture, sale, acquisition, disposition or possession of explosives. – The penalty of prision mayor in its

maximum period to reclusion temporal and a fine of not less than Fifty thousand pesos (P50,000) shall be imposed upon any person who shall unlawfully manufacture, assemble, deal in, acquire, dispose or possess hand grenade(s), rifle grenade(s), and other explosives, including but not limited to 'pillbox,' 'molotov cocktail bombs,' 'fire bombs,' or other incendiary devices capable of producing destructive effect on contiguous objects or causing injury or death to any person. When a person commits any of the crimes defined in the Revised Penal Code or special laws with the use of the aforementioned explosives, detonation agents or incendiary devices, which results in the death of any person or persons, the use of such explosives, detonation agents or incendiary devices shall be considered as an aggravating circumstance. Use of “loose firearms.” RA 10591 or the Comprehensive Firearms and Ammunition Regulation Act (2013) expressly repealed Sec. 1 of PD 1866 as amended: (v) Loose firearm refers to an unregistered firearm, an obliterated or altered firearm, firearm which has been lost or stolen, illegally manufactured firearms, registered firearms in the possession of an individual other than the licensee and those with revoked licenses in accordance with the rules and regulations. [Sec. 3(v), RA 10591] (Note: Loose firearms are UP SOLAR: Unregistered; Possessed by non-licensee; Stolen; Obliterated; Lost; Altered; with Revoked license)

Sec. 29, RA 10591. Use of Loose Firearm in the Commission of a Crime – The use of a loose firearm, when inherent in the commission of a crime punishable under the Revised Penal Code or other special laws, shall be considered as an aggravating circumstance: Provided, That if the crime committed with the

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use of a loose firearm is penalized by the law with a maximum penalty which is lower than that prescribed in the preceding section for illegal possession of firearm, the penalty for illegal possession of firearm shall be imposed in lieu of the penalty for the crime charged: Provided, further, That if the crime committed with the use of a loose firearm is penalized by the law with a maximum penalty which is equal to that imposed under the preceding section for illegal possession of firearms, the penalty of prision mayor in its minimum period shall be imposed in addition to the penalty for the crime punishable under the Revised Penal Code or other special laws of which he/she is found guilty. If the violation of this Act is in furtherance of, or incident to, or in connection with the crime of rebellion of insurrection, or attempted coup d’ etat, such violation shall be absorbed as an element of the crime of rebellion or insurrection, or attempted coup d’ etat. If the crime is committed by the person without using the loose firearm, the violation of this Act shall be considered as a distinct and separate offense. RA 8294 does not specify whether or not the use of an unlicensed firearm in murder or homicide is generic or special aggravating. It merely states that the use of the unlicensed firearm is appreciated as “aggravating.” In Palaganas v. People, G.R. No. 165483 (2006), the Court interpreted this as making the use of unlicensed firearm in murder or homicide as SPECIAL aggravating. Applying the logic of Palaganas by analogy, Section 29 in RA 10591 should be interpreted as assigning the use of loose firearm as SPECIAL aggravating as well.

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Arson under PD 1613 [BAHaGS: Benefit of Another; Hatred towards owner/occupant; intent to Gain; Syndicate]

Sec. 4. Special Aggravating Circumstances in Arson –The penalty in any case of arson shall be

imposed in its maximum period; 1. If committed with intent to gain; 2. If committed for the benefit of another; 3. If the offender is motivated by spite or hatred towards the owner or occupant of the property burned; 4. If committed by a syndicate. The offense is committed by a syndicate if it is planned or carried out by a group of three (3) or more persons. Under art. 62 of RPC, a syndicate needs at least TWO persons. Under PD 1613, a syndicate needs at least THREE persons.

e. Alternative Circumstances [Art. 15] Alternative Circumstances Are circumstances which must be taken in consideration as aggravating or mitigating according to the nature and effects of the crime. Types under art. 15. (RIE) 1. Relationship 2. Intoxication 3. Degree of Education/instruction

Use of dangerous drugs Cf. The Comprehensive Dangerous Drugs Act of 2002 [R.A. No. 9165]:

Sec. 25 Qualifying Aggravating Circumstances in the Commission of a Crime by an Offender Under the Influence of Dangerous Drugs. – Notwithstanding the provisions of any law to the contrary, a positive finding for the use of dangerous drugs shall be a qualifying aggravating circumstance in the commission of a crime by an offender, and the application of the penalty provided for in the Revised Penal Code shall be applicable.

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•

1. Relationship Covers: (SAD SiR) a. Spouse b. Ascendant c. Descendant d. Legitimate, natural, or adopted brother or sister (Siblings) e. Relative by affinity in the same degree of the offender [People v Marco, G.R. No. 132392 (2001)] When exempting a. When accessory • An accessory who is related to the principal within the relationship prescribed in Art. 20 except if accessory falls within Par. 1 of Art. 19; b. Death under exceptional circumstance • A legally married person who having surprised his spouse in the act of committing sexual intercourse with another person who shall inflict upon them physical injuries of any other kind (i.e. less serious and slight physical injuries). [Art. 247, RPC] c. Select crime against relatives • For crimes of theft, malicious mischief or swindling (estafa) but there is civil liability. [Art. 332, RPC] When mitigating a. In crimes against property • Robbery (Arts. 294-302) • Usurpation (Art. 312) • Fraudulent insolvency (Art. 314) • Arson (Arts. 321-322, 325-326). b. When the crime is less serious or slight physical injuries • If the offended party is a relative of a lower degree than the offender. When aggravating a. In crimes against persons • Where the offended party is a relative of a higher degree than the offender (grandson kills grandfather), or • When the offender and the offended party are relatives of the same level, as killing a brother, a brother-in law, a half-brother or adopted brother b. When the crime is Serious Physical Injuries [Art. 263] • Aggravating even if the offended party is a descendant of the offender c. When the crime is Less Serious Physical Injuries or Slight Serious Physical Injuries

If the offended party is a relative of a higher degree than the offender d. When the crime is Homicide OR Murder • Relationship is aggravating regardless of degree e. In Crimes Against Chastity • Relationship is always aggravating. [People v Orilla, G.R. Nos. 148949-40 (2004)] f. When the crime is Rape • Relationship is always aggravating in rape. [People v Delen, G.R. No. 194446 (2014)] When not appreciated a. When relationship is an element of the offense • Parricide • Adultery • Concubinage b. For persons attached by common-law relations • The law cannot be stretched to include such relations. [People v Atop, G.R. Nos. 12430305 (1998)]

People v. Atop, supra.:

11-year-old Regina lives with her grandmother. Atop is the common-law husband of her grandmother. Atop was found guilty of 4 counts of rape which was committed in 1993 (2x), 1994 and 1995. The lower court took into account the Aggravating Circumstance of relationship. Held: In this case, there is no blood relationship or legal bond that links Atop to his victim.

2. Intoxication People v. Bernal, G.R. No. 132791 (2002):

It is only the circumstance of intoxication which: (a) if not mitigating, (b) is automatically aggravating. Appellant’s intoxication cannot be considered mitigating because accused-appellant failed to show that his intoxication impaired his will power or his capacity to understand the wrongful nature of his acts. The person pleading intoxication must prove that he took such quantity of alcoholic beverage, prior to the commission of the crime, as would blur his reason. This the accused-appellant failed to do. No proof was presented by accused-appellant that the amount of liquor he had taken was of such quantity as to affect his mental faculties. The mere claim of intoxication does not entitle him to the mitigating circumstance of intoxication.

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When mitigating a. There must be an indication that: • because of the alcoholic intake of the offender, • he is suffering from diminished self-control. • It is not the quantity of alcoholic drink. • Rather it is the effect of the alcohol upon the offender which shall be the basis of the mitigating circumstance. b. That offender is • not a habitual drinker and • did not take alcoholic drink with the intention to reinforce his resolve to commit crime. When aggravating a. If intoxication is habitual b. If it is intentional to embolden offender to commit crime

3. Degree of Education or Instruction Low Degree of Education Refers to the lack of sufficient intelligence of and knowledge of the full significance of one’s act.

General Rule • •

Low degree of education is mitigating. To be considered mitigating, degree of instruction must have some reasonable connection to the offense.

Exceptions • •

If the crime committed is one which one inherently understands as wrong (e.g. parricide). Lack of education is not mitigating in murder or homicide; crimes against property; and crimes against chastity.

High degree of education May be appreciated as aggravating when offender availed himself or took advantage of it in committing the crime. For instance, a doctor who took advantage of his knowledge to make a poison to kill his victim in such a way as to avoid suspicion. [Reyes]

f. Absolutory Causes Absolutory causes Those where the act committed is a crime but for reasons of public policy and sentiment there is no

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penalty imposed. [People v. Talisic, G.R. No. 97961 (1997)] Types There are FOUR TYPES of absolutory circumstances: [IPON] 1. Instigation 2. Pardon by the offended party 3. Other absolutory causes 4. Acts Not covered by law and in case of excessive punishment. [Art. 5]

1. Instigation When a lawbreaker has been induced into committing the crime, he or she is not imposed a penalty. Instigation The involvement of a law officer in the crime itself in the following manner: a. He induces a person to commit a crime for personal gain. b. He doesn’t take the necessary steps to seize the instrument of the crime & to arrest the offenders before he obtained the profits in mind. c. He obtained the profits in mind even though afterwards does take the necessary steps to seize the instrument of the crime and to arrest the offenders. Example: A, leader of an anti-narcotics team, approached and persuaded B to act as a buyer of shabu and transact with C, a suspected pusher. B was given marked money to pay C for a sachet of shabu. After the sale was consummated, the cops closed in and arrested both B and C. Entrapment Trapping persons into crime for the purpose of instituting criminal prosecutions. It is a scheme or technique ensuring the apprehension of the criminals by being in the actual crime scene. The law officers shall not be guilty to the crime if they have done the following: a. He does not induce a person to commit a crime for personal gain or is not involved in the planning of the crime. b. Does take the necessary steps to seize the instrument of the crime and to arrest the offenders before he obtained the profits in mind.

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Example: A, a government anti-narcotics agent, acted as a poseur buyer of shabu and negotiated with B, a suspected drug pusher who is unaware that A is a police officer. A then paid B in marked money and the latter handed over a sachet of shabu. Upon signal, the cops closed in on B.

People v. Pacis, G.R. No. 146309 (2002):

Yap, an NBI agent, received information that a Pacis was offering to sell ½ kg of "shabu." A buybust operation was approved. The informant introduced Yap to Pacis as an interested buyer. They negotiated the sale of ½ kg of shabu. Pacis handed to Yap a paper bag with the markings "Yellow Cab". While examining it, Pacis asked for the payment. Yap gave the "boodle money" to Pacis. Upon Pacis's receipt of the payment, the officers identified themselves as NBI agents and arrested him.

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Entrapment Ways and means are resorted to for the purpose of trapping and capturing the lawbreaker in the execution of his criminal plan The means originate from the mind of the criminal.

A person has planned or is about to commit a crime and ways and means are resorted to by a public officer to trap and catch the criminal.

Held: The operation that led to the arrest of appellant was an entrapment, not instigation. In entrapment, ways and means are resorted to for the purpose of trapping and capturing lawbreakers in the execution of their criminal plan. In instigation, instigators practically induce the would-be defendant into the commission of the offense and become co-principals themselves. Entrapment is sanctioned by law as a legitimate method of apprehending criminal elements engaged in the sale and distribution of illegal drugs.

2.

US v. Phelps, G.R. No. L-5728 (1910):

See discussion on Art. 344.

Phelps was charged and found guilty for violating the Opium Law (Act No. 1761). Phelps was induced by Smith, an employee of the Bureau of Internal Revenue, into procuring opium, providing for a venue and making arrangements for the two of them to smoke opium. Held: Smith not only suggested the commission of the crime but also expressed his desire to commit the offense in paying the amount required for the arrangements. Such acts done by employees of government in encouraging or inducing persons to commit a crime in order to prosecute them are most reprehensible.

Not a bar to the prosecution and conviction of the lawbreaker.

Instigation The instigator practically induces the would-be accused into the commission of the offense and himself becomes a coprincipal. The law enforcer conceives the commission of the crime and suggests to the accused who carries it into execution. A public officer or a private detective induces an innocent person to commit a crime and would arrest him upon or after the commission of the crime by the latter. The accused must be acquitted because the offender simply acts as a tool of the law enforcers

Pardon by The Offended Party

3. Other Absolutory Causes (DALE’S 89 ARTS) a. Death under exceptional circumstances [Art. 247] b. Accessories in light felonies c. Light felonies not consummated d. Exemption from criminal liability in crimes against property e. Spontaneous desistance [Art. 6] f. Ways on how criminal liability is extinguished under Art 89 g. Accessories exempt under Art. 20 h. Under Article 332, exemptions from criminal liability for cases of theft, swindling and malicious mischief. It limits the responsibility of the offender to civil liability and frees him from criminal liability by virtue of his Relationship to the offended party. [Intestate estate of Gonzales Vda. De Carungcong v. People, G.R. No. 181409 (2010)]

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Trespass to dwelling to prevent serious harm to self [Art. 280] Discovering secrets through Seizure of correspondence of the ward by their guardian [Art. 219]

i. j.

4. Acts Not Covered by Law and in Case Of Excessive Punishment Art. 5. Duty of the court in connection with acts which should be repressed but which are not covered by the law, and in cases of excessive penalties. – 1.

2.

Whenever a court has knowledge of any act which it may deem proper to repress and which is not punishable by law, it shall render the proper decision, and shall report to the Chief Executive, through the Department of Justice, the reasons which induce the court to believe that said act should be made the subject of legislation. In the same way, the court shall submit to the Chief Executive, through the Department of Justice, such statement as may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the degree of malice and the injury caused by the offense.

Coverage 1. Where the court cannot convict the accused because the act he committed is not punishable under the law, but the court deems it proper to repress such act. • The proper judgment is acquittal. The judge must report to the Chief Executive that said act be made subject of penal legislation and the reasons therefore. 2. Where the court after trial finds the accused guilty, and the penalty prescribed for the crime appears too harsh considering the conditions surrounding the commission of the crime • The judge should impose the law (not suspend the execution of the sentence). • The most that he could do is recommend to the Chief Executive to grant executive clemency.

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People v. Veneracion, G.R. Nos. 119987-88 (1995)

Held: The law plainly and unequivocally provides that “when by reason or on the occasion of rape, a homicide is committed, the penalty shall be death. Courts are not concerned with wisdom, efficacy or morality of law. The discomfort faced by those forced by law to impose death penalty is an ancient one, but it is a matter upon which judges have no choice. The Rules of Court mandates that after an adjudication of guilt, the judges should impose the proper penalty and civil liability provided for by the law on the accused.

3. Persons Liable and Degree

of Participation

a. Conspiracy and Proposal Art. 8. Conspiracy and proposal to commit felony. – Conspiracy and proposal to commit felony are punishable only in the cases in which the law specially provides a penalty therefor.

A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. There is proposal when the person who has decided to commit a felony proposes its execution to some other person or persons. CONSPIRACY Exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. (Art. 8, RPC). Agreement may be oral or written, express or implied. Requisites of conspiracy. 1. Two or more persons come to an agreement. 2. Agreement presupposes meeting of the minds of two or more persons 3. The agreement pertains to a commission of a felony. 4. Agreement to effect what has been conceived and determined. 5. The execution of the felony was decided upon. There must be participation in the criminal resolution because simple knowledge thereof by a person may only make him liable as an accomplice.

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Rationale: Conspiracy and proposal to commit a crime are only preparatory acts and the law regards them as innocent or at least permissible except in exceptional cases. Rules 1. Conspiracy and proposal to commit a felony are not punishable. • Exception: They are punishable only in the cases in which the law specially provides a penalty therefore. 2. When the conspiracy is established, all who participated therein, irrespective of the quantity or quality of his participation is liable equally, whether conspiracy is pre-planned or instantaneous. • Exception – Unless one or some of the conspirators committed some other crime which is not part of the intended crime. • Exception to the Exception – When the act constitutes a “single indivisible offense.” Mere presence of a person at the scene of the crime does not make him a conspirator for conspiracy transcends companionship. [People v. Comadre, G.R. No. 153559 (2004)] On malversation By reason of conspiracy, the feloneious act of the accountable public officer is also imputable to his coconspirators, although the latter were not similarly situated with the former in relation to the object of the crime. [People v Peralta, G.R. No. L-19069 (1968)] Conspiracy can make accountable those who conspired and aided the public officer envisioned by the Article. On robbery with a band Conspiracy need not be proved if the existence of the band is clearly established. The law presumes the attendance of conspiracy so much so that "any member of a band who is present at the commission of a robbery by the band, shall be punished as principal of any of the assaults committed by the band, unless it be shown that he attempted to prevent the same." [People v. Peralta, supra.]

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On homicide or rape “on occasion” of robbery People v. Pecato, G.R. No. L-41008 (1987): Four people engaged in a robbery, killing victim Felix Larong in the process. Only one of the robbers actually fired the gun, but all of the arrested accused (one robber evaded arrest) were sentenced as principals. Held: Whenever a homicide has been committed as a consequence of or on the occasion of a robbery, ALL those who took part as principals in the commission of the crime are also guilty as principals in the special complex crime of robbery with homicide although they did NOT actually take part in the homicide unless it clearly appeared that they endeavored to prevent the homicide.

People v. Evangelio, G.R. No. 181902 (2011):

Once conspiracy is established between several accused in the commission of the crime of robbery, they would ALL be equally culpable for the rape committed by ANYONE of them on the occasion of the robbery, unless anyone of them proves that he endeavored to prevent the others from committing rape. The above jurisprudence abandons the old rule, where a conspirator in robbery is liable only for such other crimes which could be foreseen and which are the natural and logical consequences of the conspiracy. Conspiracy as a felony, distinguished from conspiracy as a manner of incurring criminal liability Conspiracy punishable by law refers to the mere agreement to commit the said acts and NOT the actual execution thereof. While the rule is that a mere conspiracy to commit a crime without doing any overt act is not punishable, the exception is when such is specifically penalized by law. [People v. Fabro (2000)] Examples of felonious conspiracy [METRICS DATA]: 1. Monopolies and combinations in restraint of trade (Art. 186) 2. Espionage (Sec. 3, C.A. 616) 3. Treason (Art. 115) 4. Rebellion (Art. 136) 5. Insurrection (Art. 136) 6. Coup d’état, (Art. 136) 7. Sedition (Art. 141)

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8.

Selected acts under the Dangerous Drugs Act (Sec. 26, R.A. 9165) 9. Arson (P.D. 1613, Sec. 7) 10. Terrorism (R.A. 9372, Sec. 4) 11. Access device fraud (R.A. 8484, sec. 11) Degree of proof Conspiracy must be established by positive and conclusive evidence, not by conjectures or speculations. [People v. Laurio, G.R. No. 181539 (1991)] To establish conspiracy, evidence of actual cooperation rather than mere cognizance or approval of an illegal act is required. It must be shown to exist as clearly and convincingly as the commission of the crime itself. [People v. Escober, G.R. No. L-69564 (1988)] Circumstantial evidence may be used While it is mandatory to prove conspiracy by competent evidence, direct proof is not essential to show it – it may be deduced from the mode, method, and manner by which the offense was perpetrated, or inferred from the acts of the accused themselves when such acts point to a joint purpose and design, concerted action and community of interest. [People v. Cenahono, G.R. No. 169962 (2007)] It may be established through the collective acts of the accused before, during and after the commission of a felony that all the accused aimed at the same object, one performing one part and the other performing another for the attainment of the same objective; and that their acts, though apparently independent, were in fact concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments. [People v. Talaogan, G.R. No. 178198 (2008)] Spontaneity does not preclude conspiracy Spontaneity alone does not preclude the establishment of conspiracy, which after all, can be consummated in a moment’s notice — through a single word of assent to a proposal or an unambiguous handshake. Yet it is more difficult to presume conspiracy in extemporaneous outbursts of violence; hence, the demand that it be established by positive evidence. [Li v. People, G.R. No. 127962 (2004)] For conspiracy to exist, it does not require an agreement for an appreciable period prior to the occurrence. From the legal standpoint, conspiracy exists if, at the time of the commission of the offense,

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the accused had the same purpose and were united in its execution. [People v. Listerio, supra.] Doctrine of implied conspiracy Conspiracy may be inferred from the conduct of the parties, their joint purpose, community of interest and in the mode and manner of commission of the offense. [People v. Pangilinan, G.R. Nos. 134823-25 (2003)]. In determining whether there is an implied conspiracy, it must be based on: 1. Overt acts done before, during, or after the commission of the crime; 2. Words, remarks or language used before, during or after the commission of the crime • They must be distinct from each other, independent or separate. • They must be closely associated, closely related, closed linked, and coordinated. • They must be for the common criminal design, joint criminal interest, unity of criminal purpose, or concerted action, geared towards the attainment of the felony.

People v. Ramos, G.R. No. 118570 (2004):

In determining the existence of conspiracy, it is not necessary to show that all the conspirators actually hit and killed the victim. The presence of conspiracy among the accused can be proven by their conduct before, during or after the commission of the crime showing that they acted in unison with each other, evincing a common purpose or design. There must be a showing that appellant cooperated in the commission of the offense, either morally, through advice, encouragement or agreement or materially through external acts indicating a manifest intent of supplying aid in the perpetration of the crime in an efficacious way. In such case, the act of one becomes the act of all, and each of the accused will thereby be deemed equally guilty of the crime committed. Proposals punishable by law [ReCIT]: 1. Rebellion (Art. 136) 2. Coup d’ etat (Art. 136) 3. Inducement not to answer summons, appear or be sworn in Congress, etc. (Art. 150) 4. Treason (Art. 115) Legal effects of implied conspiracy

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Not all those present at the crime scene will be considered conspirators; Mere acquiescence to or approval of the commission of the crime, without any act of criminal participation, shall not render one criminally liable as co-conspirator.

In the absence of any previous plan or agreement to commit a crime, the criminal responsibility arising from different acts directed against one and the same person is individual and not collective, and that each of the participants is liable only for his own acts. [People v. Bagano, G.R. No. 139531 (2002)] One who desisted is not criminally liable Desistance is true only in the attempted stage. Before this stage, there is only a preparatory stage. Conspiracy is only in the preparatory stage. Exceptions: Having community of design with the principal does not prevent a malefactor from being regarded as an accomplice if his role in the perpetration of the homicide or murder was, relatively speaking, of a minor character. [People v. Nierra, G.R. No. L-32624 (1980)] Wheel or circle conspiracy v. chain conspiracy In a wheel or circle conspiracy, there is a single person or group (the hub) dealing individually with two or more other persons or groups (the spokes). In Two Concepts of Conspiracy

AS A FELONY IN ITSELF

Stage

Preparatory acts

How incurred

Mere agreement

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a chain conspiracy, there is successive communication and cooperation in much the same way as with legitimate business operaitons between manufacturer and wholesaler, then wholesaler and retailer, and then retailer and consumer. [Estrada v. Sandiganbayan, G.R. No. 148965 (2002)] PROPOSAL When the person who has decided to commit a felony proposes its execution to some other person or persons. Requisites 1. That a person has decided to commit a felony; and 2. That he proposes its execution to some other person or persons.

No criminal proposal when: 1. 2. 3.

The person who proposes is not determined to commit the felony; There is no decided, concrete and formal proposal; It is not the execution of the felony that is proposed.

It is not necessary that the person to whom the proposal is made agrees to commit treason or rebellion.

Legal requirements

The RPC must specifically punish the act of conspiring (and proposing) The act must not be accomplished, else the conspiracy is absorbed and the act itself is punished. Quantum of proof: Conspiracy as a crime must be established beyond reasonable doubt

Illustration A, B, C and D came to an agreement to commit rebellion. Their agreement was to bring about the rebellion on a certain date. Even if none of them has performed the act of rebellion, there is already criminal liability arising from the conspiracy to commit the rebellion. But if anyone of them has committed the overt act of rebellion, the crime of all is no longer conspiracy but rebellion itself. This is true even though the other co-

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Two Concepts of Conspiracy

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Stage

How incurred

Legal requirements

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Illustration conspirators do not know that one of them had already performed an act of rebellion.

AS A BASIS FOR LIABILITY

Executory acts

Commission of overt act

Participants acted in concert or simultaneously or in any way which is indicative of a meeting of the minds towards a common criminal goal or criminal objective. The act of meeting together is not necessary as long as a common objective can be discerned from the overt acts. The act must be accomplished, if there is only conspiracy or proposal, there is no crime to be punished. Quantum of proof: Reasonably inferred from the acts of the offenders when such acts disclose or show a common pursuit of the criminal objective. [People v. Pinto, G.R. No. 39519 (1991)]

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Three persons plan to rob a bank. For as long as the conspirators merely entered the bank there is no crime yet. But when one of them draws a gun and disarms the security guard, all of them shall be held liable, unless a co-conspirator was absent from the scene of the crime or he showed up, but he tried to prevent the commission of the crime.

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Persons criminally liable

b. Persons Criminally Liable Under the Revised Penal Code, when more than one person participated in the commission of the crime, the law looks into their participation because in punishing offenders, the Revised Penal Code classifies them as: 1. 2. 3.

Principal Accomplice Accessory

Principal by inducement

This classification is true only under the RPC and is not applied under special laws, because the penalties under the latter are never graduated. Do not use the term “principal” when the crime committed is a violation of special law (use the term “offender/s, culprit/s, accused). Grave and less felonies v. light felonies 1. When the felony is grave, or less grave, all participants are criminally liable. 2. When the felony is only light, only the principal and the accomplice are liable.

Principal by indispensable cooperation

In the commission of light felonies, the social wrong as well as the individual prejudice is so small that penal sanction is deemed not necessary. Who are liable Only natural persons can be held criminally liable because only natural persons are capable of acting by means of deceit (dolo) or fault (culpa) and only natural persons can commit crime with personal malice and negligence.

Accomplice

Also, only natural persons can suffer imprisonment or deprivation of liberty as a form of punishment. [Amurao (2013)] Officers of corporation are liable Only officers of corporations acting in their official duties can be punishable. He answers for his acts, for a juridical person cannot be prosecuted criminally. EXCEPT: in special laws where corporations are expressly penalized for their violations. Persons criminally liable Principal by direct participation

Requisites 1. 2.

Accessories

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Requisites in its execution by acts which directly tended to the same end. 1. That the inducement be made directly with the intention of procuring the commission of the crime; 2. That such inducement be the determining cause of the commission of the crime by the material executor. [People v. Yanson-Dumancas, G.R. No. 133527-28 (1999)] 1. Participating in the criminal resolution, that is, there is either anterior conspiracy or unity of criminal purpose and intention immediately before the commission of the crime charged; and 2. Cooperation in the commission of the offense by performing another act without which it would not have been accomplished. 1. That there be community of design; that is, knowing the criminal design of the principal by direct participation, he concurs with the latter in his purpose; 2. That he cooperates in the execution of the offense by previous or simultaneous acts, with the intention of supplying material or moral aid in the execution of the crime in an efficacious way; and 3. That there be a relation between the acts done by the principal and those attributed to the person charged as accomplice. Those who 1. having knowledge of the commission of the crime and 2. Without having participated therein, either as principals or accomplices, 3. take part subsequent to its commission in any of the

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Persons criminally liable

Public officer as accessory under Art. 19(3)

Private person as accessory under art. 19(3)

Requisites manners provided by the Art. 19, RPC. 1. The accessory is a public officer. 2. He conceals, harbors, or assists (CHA) in the principal's escape. 3. The public officer acts with abuse of his public functions. 4. The crime committed by the principal is not a light felony. 1. The accessory is a private person 2. He conceals, harbors, or assists (CHA) in the escape of the author of the crime 3. The crime committed by the principal is either (PM's HAT): a. Parricide b. Murder c. Principal is Habitually guilty of some other crime d. Attempt against the President's life e. Treason

1. Principals Art. 17. Principals

– The following are considered principals: 1. Those who take a direct part in the execution of the act; 2. Those who directly force or induce others to commit it; 3. Those who cooperate in the commission of the offense by another act without which it would not have been accomplished.

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Crime through negligence There is no conspiracy when offense is through negligence Exception: Under special laws that expressly provide how failure to prevent an act makes one co-principal.

a. By direct participation Those who are liable (participated in the criminal resolution): [MAP] 1. Materially execute the crime; 2. Appear at the scene of the crime; 3. Perform acts necessary in the commission of the offense. Why one who does not appear at the scene of the crime is not liable: 1. His non-appearance is deemed desistance which is favored and encouraged. 2. Conspiracy is generally not a crime unless the law specifically provides a penalty therefore. 3. There is no basis for criminal liability because there is no criminal participation.

b. By inducement Inducer must have: [PET] 1. Most positive resolution 2. Most persistent effort to secure the commission of the crime, 3. Presentation to the induced the very strongest kind of temptation. When not by inducement 1. Thoughtless expression, without any expectation or intention it would produce a result. 2. When the principal by direct participation had personal reason to commit the crime without inducement of another. 3. When a price is given to principal by direct participation AFTER the crime but was not promise BEFORE the commission of the crime. Two ways of inducement; by force 1. Using irresistible force. Such physical force as would produce an effect upon the individual that despite all his resistance, it reduces him to a mere instrument. 2. Causing uncontrollable fear. Such fear that must be grave, actual, serious and of such kind that majority of men would succumb to such moral compulsion. The fear must be both grave and imminent and not speculative, fanciful or remote.

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1. Criminal liability pertains to both the inducer and the induced.

2.

People v. Agapinay, supra.:

The one who uttered “kill him, we will bury him” while the felonious aggression was taking place cannot be held liable as principal by inducement. Utterance was said in the excitement of the hour, not a command to be obeyed.

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When the principal by direct participation committed the act induced. The inducement must precede the act induced and must be so influential in producing the criminal act that without it, the act would not have been performed.

When principal by direct participation is acquitted Conspiracy is negated by acquittal of co-defendant.

By giving of price, or offering of reward or promise The one giving the price or offering the reward or promise is a principal by inducement while the one committing the crime in consideration thereof is a principal by direct participation.

Exception: when principal actor is acquitted because he acted WITHOUT malice or criminal intent, his acquittal is not ground for acquittal of principal by inducement.

Using words of command The person who used the words of command is a principal by inducement while the person who committed the crime because of the words command is a principal by direct participation.

Requisites 1. Anterior conspiracy or unity of criminal purpose and intention immediately before the commission of the crime charged. a. Requires participation in the criminal resolution. b. There must be conspiracy. c. Concurrence is sufficient. 2. Cooperation in the commission of the offense by performing another act, without which it would not have been accomplished. a. Cooperation must be indispensable b. If dispensable, accused is only an accomplice c. If cooperation is necessary in the execution of the offense, accused is considered as a principal by direct participation.

Other characteristics 1. That the one uttering the words of command must have the intention of procuring the commission of the crime; 2. That the one who made the command must have an ascendancy or influence over the person who acted; 3. That the words used must be so direct, so efficacious, so powerful as to amount to physical or moral coercion; 4. That the words of command must be uttered prior to the commission of the crime; and 5. The material executor of the crime has no personal reason to commit the crime.

People v. Balderama, G.R. Nos. 89587-98

(1993): Ernesto shouted to his younger brother Oscar, “Birahin mo na, birahin mo na!” Oscar stabbed the victim. Considering that Ernesto had great moral ascendancy and influence over Oscar, being much older (35 years old) than the latter, who was 18 years old, and it was Ernesto who provided his allowance, clothing as well as food and shelter, Ernesto is principal by inducement. PRINCIPAL BY INDUCEMENT, IN RELATION TO PRINCIPAL BY DIRECT PARTICIPATION When principal by inducement is liable

c. By indispensable cooperation

People v. Tolentino, G.R. No. 139179 (2002):

A certain Tolentino attacked Hernan Sagario. The assault was carried out without the participation of appellant, who did not personally hit or stab the victim, but only subsequently helped carry the latter from the house to the nearby creek. It must be emphasized that Tolentino’s plan to kill the victim was concocted in the absence of appellant. In fact, appellant, showing clearly his lack of support for the criminal intent of Tolentino, even tried to prevent the latter from hacking the victim, according to the eyewitness. In his testimony, appellant stated that because he was afraid his co-accused would hurt him if he refused, he agreed to assist the latter in carrying the victim towards the river. Verily, he adequately explained his conduct prior to the stabbing incident as one born of fear for his own life.

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Held: Because of the lack of a united purpose, appellant cannot be considered a principal by indispensable cooperation. Absent a conspiracy, his responsibility, as well as that of his co-accused, is individual -- not collective -- and each is to be punished only for his own separate acts.

People v. Fronda, G.R. Nos. 102361-62 (1993):

Appellant was convicted as principal by indispensable cooperation for the murders of two farmers. Records show that appellant's participation in the commission of the crime consisted of: (1) leading the members of the NPA to the house where the victims were found; (2) tying the victims' hands and (3) digging the grave where the victims were buried. Held: We note that the prosecution failed to present any evidence tending to establish appellant's conspiracy with the evil designs of the members of the armed group. Neither was it established that appellant's acts were of such importance that the crime would not have been committed without him or that he participated in the actual killing. However, appellant's act of joining the armed men in going to the mountains, and his failure to object to their unlawful orders, or show any reluctance in obeying the same, may be considered as circumstances evincing his concurrence with the objectives of the malefactors and had effectively supplied them with material and moral aid, thereby making him as an accomplice. Principal by indispensable cooperation v. coprincipal by direct participation For the former, act done is different from the felony intended by the principal by direct participation. In the latter, the act done by the person is necessary in the execution of the crime committed. For instance, the person who held the hands of the victim while another stabbed the victim is principal by direct participation. (There are instances where SC nevertheless held that the person who held the hand is principal by indispensable cooperation.)

2. Accomplices Persons who, not acting as principals, cooperate in the execution of the offense by previous and simultaneous acts, which are not indispensable to the commission of the crime. They are mere instruments that perform acts not essential to the perpetration of the offense.

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An accomplice cooperates in the execution of the offense by previous or simultaneous acts, provided he has no direct participation in its execution or does not force or induce others to commit it, or his cooperation is not indispensable to its accomplishment. [People v. Mandolado, supra.] Accomplice even without knowledge of actual crime One can be an accomplice even if he did not know of the actual crime intended by the principal provided he was aware that it was an illicit act. [People v. Doctolero, G.R. No. 34386 (1991)] Where the accomplices therein consented to help in the commission of forcible abduction, they were responsible for the resulting homicide even if the purpose of the principal to commit homicide was unknown to the accomplices. [US v. De Jesus, G.R. No. 5003 (1909)]

People v. Gambao, supra.:

In this case of kidnapping for ransom, appellant avers that she cannot be held as a principal to the crime given that she had no knowledge that a crime was being committed. She claims that she thought that she merely attended a swimming party. Given that she had no knowledge of the crime, should have no criminal liability imputed to her. Held: The Court is not persuaded that she did not acquire knowledge of the criminal design of the principals. A rational person would have sensed that something was wrong and reported it to the police. However, she chose to remain quiet; and to add to that, she even spent the night at the cottage. It must be noted that her presence and company were not indispensable for the commission of the crime. Also, the Court stressed that where there is doubt as to the participation of the offender to the crime, he/she shall be considered as an accomplice rather than a principal to the crime. Accomplice do not decide the crime Accomplices come to know about the criminal resolution of the principal by direct participation after the principal has reached the decision to commit the felony and only then does the accomplice agree to cooperate in its execution. Accomplices do not decide whether the crime should be committed; they merely assent to the plan of the principal by direct participation and cooperate in its

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accomplishment. [People v. PIlola, G.R. No. 121828 (2003)]

2.

Accomplice and conspirator, distinguished Conspirator Accomplice They know of and join They know and agree in the criminal with the criminal design design Conspirators know Accomplices come to the criminal intention know about it after the because principals have reached they themselves have the decision and only decided upon such then do they agree to course of action cooperate in its execution Accomplices merely Conspirators decide assent to the plan and that a crime should be cooperate in its committed accomplishment Accomplices are merely instruments who perform acts that are Conspirators are the useful for, but not authors of a crime essential to, the perpetration of the offense.

3.

Accomplice and principal by direct participation, distinguished Principal by direct Accomplice participation Cooperation is not Cooperation is indispensable to the indispensable in the commission of the act commission of the [Garces v. People, G.R. crime No. 173858 (2007)] Accomplice in bigamy A person, whether man or woman, who knowingly consents or agrees to be married to another already bound in lawful wedlock is guilty as an accomplice in the crime of bigamy. [Santiago v. People (2015)]

3. Accessories When one becomes an accessory Participation of all accessories is AFTER the commission of the crime.

Art. 19. Accessories – Accessories are those who,

having knowledge of the commission of the crime, and without having participated therein, either as principals or accomplices, take part subsequent to its commission in any of the following manners: 1. By profiting themselves or assisting the offender to profit by the effects of the crime.

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By concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its discovery. By harboring, concealing, or assisting in the escape of the principals of the crime, provided the accessory acts with abuse of his public functions or whenever the author of the crime is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime.

Examples: a.

In kidnapping with ransom, couriers or runners in obtaining ransom money. b. In homicide or murder, those who assist in burial of the victim. Mere act of carrying the cadaver of one unlawfully killed, when it was buried to prevent discovery of the crime, is SUFFICIENT to make him accessory. c. Those who make it appear that deceased was armed, and that it was necessary to kill him on account of his resistance; making it appear that the deceased who had been arrested ran away. d. Refusal of mayor to prosecute the crime of homicide and made it possible for principal to escape. He refused to make an investigation of the serious occurrence, of which complaint was made to him. Mayor is guilty as accessory. e. If a person reported to the police false information, after witnessing a crime by another whom he knew. Concealing or destroying the corpus delicti a. Do not overlook the purpose which must be to prevent discovery of the crime. b. The corpus delicti is not the body of the person who is killed. c. Even if the corpse is not recovered, as long as that killing is established beyond reasonable doubt, criminal liability will arise. d. If there is someone who destroys the corpus delicti to prevent discovery, he becomes an accessory. When accessories are not criminally liable a. When crime is light felony. b. Exemption under art. 20. The exemption provided in this article is based on the ties of blood and the preservation of the cleanliness of one’s name, which compels one to conceal crimes committed by relatives so near as those mentioned in this article.

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Even if only two of the principals guilty of murder are the brothers of the accessory and the others are not related to him, such accessory is exempt from criminal liability. When accessory is not exempted from criminal liability a. Profited by the effects of the crime, or b. Assisted the offender to profit by the effect of the crime. c. The punishable acts in PD 1829, compared to RPC Art. 20 are prompted by a detestable greed, not by affection. The benefits of the exception in Art. 20 do not apply to PD 1829.

COLLECTIVE VERSUS INDIVIDUAL CRIMINAL RESPONSIBILITY. Collective criminal responsibility This is present when the offenders are criminally liable in the same manner and to the same extent. The penalty to be imposed must be the same for all. The same penalty is imposed for the following combination of principals: a. All principals by direct participation b. Principal by direct participation + Principal by induction (except those who directly forced another to commit a crime) c. Principal by direct participation + principal by indispensable cooperation Individual criminal responsibility In the absence of any previous conspiracy, unity of criminal purpose and intention immediately before the commission of the crime, or community of criminal design, the criminal responsibility arising from different acts directed against one and the same person is individual and not collective, and each of the participants is liable only for the act committed by him. When principal v. when accomplice The basis is the importance of the cooperation to the consummation of the crime. a. If the crime could hardly be committed without such cooperation, then such cooperator would be a principal. b. If the cooperation merely facilitated or hastened the consummation of the crime, the cooperator is merely an accomplice.

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Several individuals were convicted for the murder of father Rafael and son Casiano. One of the appellants shot the Rafael and abandoned him. Rafael was saved and brought to his hut for treatment of the wounds. The shooter, together with several others, went to Rafael’s house armed with firearms, bolos, and canes. They stoned the house and trust their bolos thru the bamboo walls and flooring. The shooter then climbed the house and shot Rafael, finally killing him. Someone from the group saw Rafael’s son, Casiano, running away from the hut; the former gunned down the latter. Held: The rule has always been that coconspirators are liable only for acts done pursuant to the conspiracy. For other acts done outside the contemplation of the co-conspirators or which are not the necessary and logical consequence of the intended crime, only the actual perpetrators are liable. Rafael’s shooter cannot be held liable for the death of Casiano, even though the latter’s killer acted in conspiracy with the former. The conspiracy was to kill Rafael only and no one else. Nothing was said or agreed upon about the members of Rafael's family. Their target was solely Rafael.

4. In Other Special Penal Laws a. PRESIDENTIAL DECREE NO. 1612

[ANTI- FENCING LAW].

One who knowingly profits or assists the principal to profit by the effects of robbery or theft (i.e. a fence) is not just an accessory to the crime, but principally liable for fencing. PD 1612 has, therefore, modified Art. 19 of the RPC. Mere possession Mere possession of any article of value which has been the subject of robbery or theft brings about the presumption of “fencing”.

In case of doubt, favor the lesser penalty or liability. Apply the doctrine of pro reo.

People v. Dela Cerna, G.R. No. L-29811 (1967): Page 82 of 310

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Penalty The penalty is higher than that of a mere accessory to the crime of robbery or theft.

b. PRESIDENTIAL DECREE 532 [ANTIPIRACY AND HIGHWAY ROBBERY LAW OF 1974]. Section 4 of PD 532 provides that any person who knowingly and in any manner acquires or receives property taken by such pirates or brigands or in any manner derives benefit therefrom, shall be considered as an accomplice of the principal offenders, not just as an accessory, in accordance with the Rules prescribed by the Revised Penal Code. Presumption of knowledge It shall be presumed that any person who does any acts provided in this section has performed them knowingly, unless the contrary is proven.

c. HUMAN SECURITY ACT [R.A. NO. 9372].

Sec. 4. Conspiracy to Commit Terrorism – Persons who conspire to commit the crime of terrorism shall suffer the penalty of forty (40) years of imprisonment.

There is conspiracy when two or more persons come to an agreement concerning the commission of the crime of terrorism as defined in Section 3 hereof and decide to commit the same.

Sec. 5. Accomplice – Any person who, not being

a principal under Article 17 of the Revised Penal Code or a conspirator as defined in Section 4 hereof, cooperates in the execution of either the crime of terrorism or conspiracy to commit terrorism by previous or simultaneous acts shall suffer the penalty of from seventeen (17) years, four months one day to twenty (20) years of imprisonment.

Sec. 6. Accessory - Any person who, having

knowledge of the commission of the crime of terrorism or conspiracy to commit terrorism, and without having participated therein, either as principal or accomplice under Articles 17 and 18 of the Revised Penal Code, takes part subsequent to its commission in any of the following manner: (a) by profiting himself or assisting the offender to profit by the effects of the crime; (b) by concealing or destroying the body of the crime, or the effects, or instruments thereof, in order to prevent its

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discovery; (c) by harboring, concealing, or assisting in the escape of the principal or conspirator of the crime, shall suffer the penalty of ten (10) years and one day to twelve (12) years of imprisonment. Notwithstanding the above paragraph, the penalties prescribed for accessories shall not be imposed upon those who are such with respect to their spouses, ascendants, descendants, legitimate, natural, and adopted brothers and sisters, or relatives by affinity within the same degrees, with the single exception of accessories falling within the provisions of subparagraph (a).

d. DECREE PENALIZING OBSTRUCTION OF APPREHENSION AND PROSECUTION OF CRIMINAL OFFENDERS [P.D. 1829] What is imposed Upon any person who knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases. 1. Prision correccional in its maximum period, or 2. Fine ranging from PhP 1,000 – 6,000, or 3. Both Punishable acts [Section 1] 1. Preventing witnesses from testifying in any criminal proceeding or from reporting the commission of any offense or the identity of any offender/s by means of bribery, misrepresentation, deceit, intimidation, force or threats; 2. Altering, destroying, suppressing or concealing any paper, record, document, or object with intent to impair its veracity, authenticity, legibility, availability, or admissibility as evidence in any investigation of or official proceedings in criminal cases, or to be used in the investigation of, or official proceedings in, criminal cases; 3. Harboring or concealing, or facilitating the escape of, any persons he knows, or has reasonable ground to believe or suspect, has committed any offense under existing penal laws in order to prevent his arrest, prosecution and conviction; 4. Publicly using a fictitious name for the purpose of concealing a crime, evading prosecution or the execution of a judgment, or concealing his true name and other personal circumstances for the same purpose or purposes; 5. Delaying the prosecution of criminal cases by obstructing the service of process or court orders

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6.

7.

8.

9.

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or disturbing proceedings in the fiscals’ offices, in Tanodbayan, or in the courts; Making, presenting or using any record, document, paper or object with knowledge of its falsity and with intent to affect the course or outcome of the investigation of, or official proceedings in criminal cases; Soliciting, accepting, or agreeing to accept any benefit in consideration of abstaining from, discontinuing, or impeding the prosecution of a criminal offender; Threatening directly or indirectly another with the infliction of any wrong upon his person, honor or property or that of any immediate member or members of his family in order to prevent such person from appearing in the investigation of, or official proceedings in, criminal cases, or imposing a condition, whether lawful or unlawful, in order to prevent a person from appearing in the investigation of, or in official proceedings in criminal cases; Giving a false or fabricated information to mislead or prevent the law enforcement agencies from apprehending the offender or from protecting the life or property of the victim; or fabricating information from the data gathered in confidence by investigating authorities for purposes of background information and not for publication and publishing or disseminating the same to mislead the investigator or the court.

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Accessory under RPC and principal by obstruction of justice, distinguished Law Penalizing Revised Penal Code “Obstruction of Justice” (PD 1829) Specifies the crimes No specification of the that should be crime to be committed by committed in case a the offender in order that civilian aids in the criminal liability be escape incurred The offender is the The offender need not principal or must be even be the principal or convicted of the crime need not be convicted of charged the crime charged An offender of any crime The one who is no longer an accessory harbored or concealed but is simply an offender an offender is still an without regard to the accessory crime of the person assisted to escape

c. Multiple offenders The four forms of repetition: 1. recidivism (par. 9, Art. 14) 2. reiteracion (par. 10, Art. 14) 3. multi-recidivism/habitual delinquency (par. 5, Art. 62) 4. quasi-recidivism (Art. 160) Kinds of aggravating circumstance. The first two are generic aggravating circumstances. The third one is extraordinary aggravating; the fourth one; special aggravating. The special aggravating circumstance of quasirecidivism cannot be offset by any ordinary mitigating circumstance.

Recidivism/

Reincindencia;

Art. 14 (9) Crimes Sufficient at the time of committed the trial that the offender has been previously convicted by final judgment for another crime embraced in the same title of the Code on the date of his trial Period of time No period of time the crimes are committed

Habituality/Reiteracion/ Repetition; Art. 14 (10) Necessary that the offender shall have served out his sentence for the first offense

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QuasiRecidivism; Art. 160 Before serving or while serving sentence, the offender commits a felony (NOT a crime) Before serving or while serving sentence

Habitual Delinquency; Art. 62 (5) Specified felonies: less serious or serious physical injuries robbery theft estafa falsification Within 10 years from his last release or conviction

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Recidivism/

Reincindencia;

Habituality/Reiteracion/ Repetition; Art. 14 (10)

Art. 14 (9) Number of The second conviction The previous and crimes for an offense embraced subsequent offenses must committed in the same title of RPC NOT be embraced in the same title of the RPC Their effects If not offset by any Not always an aggravating mitigating circumstance, circumstance increase the penalty only to the maximum

1. RECIDIVISM Art. 14.

Aggravating circumstances –The

following are aggravating circumstances: xxx 9. That the accused is a recidivist.

A recidivist is one who, at the time of his trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of this Code. Requisites a. Offender is on trial for a felony b. He was previously convicted by final judgment of another crime • Both the first and second felonies are embraced in the same title of the RPC • Offender is convicted of the new offense Offender is on trial for an offense What is controlling is the time of trial, not the time of commission of the crime. [Reyes] Coverage It is meant to include everything that is done in the course of the trial, from arraignment until after sentence is announced by the judge in open court. He was previously convicted It is sufficient that the succeeding offense be committed after the commission of the preceding offense provided that at the time of his trial for the second offense, the accused had already been convicted of the first offense.

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QuasiRecidivism; Art. 160 Offender commits a felony

Habitual Delinquency; Art. 62 (5) Guilty the third time or oftener

Imposes the maximum of the penalty for the new offense, and cannot be offset by any mitigating circumstance

An additional penalty shall be imposed

Judgments handed on the same day If both offenses were committed on the same date, they shall be considered as only one, hence, they cannot be separately counted in order to constitute recidivism. Also, judgments of conviction handed down on the same day shall be considered as only one conviction. Proof To prove recidivism, it is necessary to allege the same in the information and to attach thereto certified copy of the sentences rendered against the accused.

People v. Molina, G.R. Nos. 14777-78 (2000)

Held: To prove recidivism, it is necessary to allege the same in the information and to attach thereto certified copies of the sentences rendered against the accused. Nonetheless, the trial court may still give such AC credence if the accused does not object to the presentation.

People v. Dacillo, G.R. No. 149368 (2004)

Held: The Court finds that the trial court erred in imposing the death penalty on the ground that appellant admitted during re-cross examination that he had a prior conviction for the death of his former live-in partner. The aggravating circumstance of recidivism was not alleged in the information and therefore cannot be appreciated against appellant. When final judgment a. After lapse of period for perfecting appeal; b. When sentence has been partially or totally served; c. Accused waived in writing his right to appeal; d. Accused has applied for probation.

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Effect of pardon on first felony Even if the accused was granted a pardon for the first offense, but he commits another felony embraced in the same title of the Code, the first conviction is still counted to make him a recidivist, since pardon does not obliterate the fact of his prior conviction. Effect of amnesty on first felony However, if a person was granted an amnesty, and thereafter he is convicted of another crime of the same class as the former crimes, his former conviction would not be aggravating. According to Art. 89, amnesty extinguishes not only the penalty but also its effects. No prescription No matter how long ago the offender was convicted, if he is subsequently convicted of a crime embraced in the same title of the Revised Penal Code, it is taken into account as aggravating in imposing the penalty. Should be felonies In recidivism, the crimes committed should be felonies. There is no recidivism if the crime committed is a violation of a special law.

2. Habituality (Reiteracion) Art. 14. Aggravating circumstances. –The following are aggravating circumstances: xxx 10. That the offender has been previously punished by an offense to which the law attaches an equal or greater penalty or for two or more crimes to which it attaches a lighter penalty.

Requisites a. Accused is on trial for an offense b. He previously served sentence • for another offense to which the law attaches an equal or greater penalty, OR for two or more crimes to which it attaches lighter penalty than that for the new offense • He is convicted of the new offense For another offense with equal or greater penalty attached Penalty attached to offense, not the one actually imposed. Convicted of new offense If the second offense or crime is punishable under a special law, it cannot be considered under reiteracion because Articles 13, 14, and 15 of the RPC are not applicable to special law crimes.

Par. 9 Recidivism It is enough that a final judgment has been rendered in the first offense. Requires that the offenses be included in the same title of the Code Always to be taken into consideration in fixing the penalty to be imposed upon the accused Rationale is the proven tendency to commit a similar offense

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Par. 10 Reiteracion It is necessary that the offender shall have served out his sentence for the first offense. The previous and subsequent offenses must not be embraced in the same title of the Code Not always aggravating circumstance

an

Rationale is the proven resistance to rehabilitation

If the same set of facts constitutes recidivism and reiteracion, the liability of the accused should be aggravated by recidivism which can be easily proven.

3. Multi-Recidivism/Habitual Deliquency Requisites a. Offender had been convicted of any of the crimes of [T-FIRE]: theft; falsification; serious or less serious physical injuries; robbery; estafa. b. After that conviction or after serving his sentence, he again committed, and, within 10 years from his release or first conviction, he was again convicted of any of the said crimes for the second time c. After his conviction of, or after serving sentence for, the second offense, he again committed, and, within 10 years from his last release or last conviction, he was again convicted of any of said offenses, the third time or oftener. [Art. 62, RPC] Coverage It applies to all participants (principals, accomplices, accessories) because it reveals persistence in them of the inclination to wrongdoing and of the perversity of character that led them to commit the previous crime. Habitual delinquency applies at any stage of the execution (attempt, frustration, or consummation) because subjectively, the offender reveals the same degree of depravity or perversity as the one who commits a consummated crime. Purpose To render more effective social defense and the reformation of habitual delinquents [Reyes, quoting

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People v. Abuyen (G.R. No. L-30664, 1929)]. The imposition of such additional penalties is mandatory and is not discretionary. Not ex post facto law The imposition of the additional penalty on habitual delinquents are CONSTITUTIONAL because such law is neither an EX POST FACTO LAW nor an additional punishment for future crimes. It is simply a punishment on future crimes on account of the criminal propensities of the accused. Art. 14, Par. 9 Recidivism Two convictions enough

are

The crimes are not specified; it is enough that they may be embraced under the same title of the Revised Penal Code

There is no time limit between the first conviction and the subsequent conviction. Recidivism is imprescriptible.

Art. 62 par. 5 Habitual Delinquency At least three convictions are required The crimes are limited and specified to: a. serious physical injuries, b. less serious physical injuries, c. robbery, d. theft, e. estafa or swindling and f. falsification There is a time limit of not more than 10 years between every conviction computed from the first conviction or release from punishment thereof to conviction computed from the second conviction or release therefrom to the third conviction and so on

Recidivism inherent in habitual delinquency A habitual delinquent is necessarily a recidivist, and in imposing the principal penalty upon him the aggravating circumstance of recidivism has to be taken into account. However, for the purpose of fixing the additional penalty, recidivism cannot be taken as an aggravating circumstance for the reason that it is inherent in habitual delinquency. [People v. Tolentino, G.R. No. L-48740 (1942)]

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Computation to check whether within “10 years.” The starting date is either the conviction OR release of the accused in his previous crime; the end date is his conviction in the subsequent crime. Must be after previous conviction Subsequent crime must be committed AFTER CONVICTION of former crime. How to count the convictions [Reyes] a. Convictions on the same day are counted as one. b. Crimes committed on the same date, although convictions are on different dates, are counted as one. c. Crime committed during the minority of the offender is not considered. d. Commission of any of the crime need not be consummated. Information Must contain dates for: (1) commission of previous crimes; (2) last conviction or release; (3) other previous convictions or releases. Plea of guilty Plea of guilty which fails to allege the DATES of the commission of previous offences, convictions, and of releases is not an admission of habitual delinquency, but recidivism. Failure to object Failure to object admission of decision showing dates of previous convictions cures the failure to allege said dates in the information. Penalties Nth Conviction

Penalty

Plus

Prescribed penalty on the last crime

prision correccional in its medium and maximum periods prision mayor in its minimum and medium periods prision mayor in its maximum period to reclusion temporal in its minimum period

3rd

4th

5th and succeeding

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Not exceed 30 years. In no case shall the total of the 2 penalties imposed upon the offender exceed 30 years.

4. QUASI-RECIDIVISM Art. 160. Commission of another crime during service of penalty imposed for another offense; Penalty. – Besides the provisions of Rule 5 of

Article 62, any person who shall commit a felony after having been convicted by final judgment, before beginning to serve such sentence, or while serving the same, shall be punished by the maximum period of the penalty prescribed by law for the new felony. Requisites 1. That the offender was already convicted by final judgment of one offense. 2. That he committed a new felony before beginning to serve such sentence or while serving the same. Offender was already convicted by final judgment of one offense The second crime must be a felony (punished by the RPC and not by special law/s) but the first crime for which the offender is serving sentence need not be a felony. [Reyes] Reiteracion and quasi-recidivism, not possible to be simultaneous Since reiteracion provides that the accused has duly served the sentence for previous conviction/s, or is legally considered to have done so, quasi-recidivism cannot at the same time constitute reiteracion, hence the latter cannot apply to a quasi-recidivist. Proof Quasi-recidivism, like recidivism and reiteracion, necessitates the presentation of a certified copy of the sentence convicting an accused. The fact that appellant was an inmate of a penal colony does not prove that final judgment had been rendered against him. [People v. Gaorana, G.r. Nos. 109138-39 (1998)]

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D. PENALTIES Penalty The suffering that is inflicted by the State for the transgression of a law. Juridical condition 1. Must be PRODUCTIVE OF SUFFERING, without affecting the integrity of the human personality. 2. Must be COMMENSURATE to the offense – different crimes must be punished with different penalties. 3. Must be PERSONAL – no one should be punished for the crime of another. 4. Must be LEGAL – it is the consequence of a judgment according to law. 5. Must be CERTAIN – no one may escape its effects. 6. Must be EQUAL for all. 7. Must be CORRECTIONAL. Must be personal and definite. Penalties must be individual, i.e., not shared, and definite, e.g., imprisonment, fine, imprisonment and fine, imprisonment or fine; but not imprisonment and/or fine.

1. Principles a. Capital Punishment and Death Penalty Some pertinent RPC provisions on death penalty. See also Arts. 81-85, RPC.

Art. 40. Death; Its accessory penalties – The

death penalty, when it is not executed by reason of commutation or pardon shall carry with it that of perpetual absolute disqualification and that of civil interdiction during thirty years following the date sentence, unless such accessory penalties have been expressly remitted in the pardon.

Art. 47. In what cases the death penalty shall not be imposed – The death penalty shall be

imposed in all cases in which it must be imposed under existing laws, except in the following cases: 1. When the guilty person be more than seventy years of age. 2. When upon appeal or revision of the case by the Supreme court, all the members thereof are not unanimous in their voting as to the Page 88 of 310

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propriety of the imposition of the death penalty. For the imposition of said penalty or for the confirmation of a judgment of the inferior court imposing the death sentence, the Supreme Court shall render its decision per curiam, which shall be signed by all justices of said court, unless some member or members thereof shall have been disqualified from taking part in the consideration of the case, in which even the unanimous vote and signature of only the remaining justices shall be required. Is death penalty a cruel, degrading, and inhumane punishment? People v. Echegaray, G.R. No. 117472 (1997): Punishments are cruel when they involve torture or a lingering death, but the punishment of death is not cruel, within the meaning of that word as used in the constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life. Abolition of death penalty The first two sections of RA 9346 provide: Sec. 1. – The imposition of the penalty of death is hereby prohibited. Accordingly, Republic Act No. Eight Thousand One Hundred Seventy-Seven (R.A. No. 8177), otherwise known as the Act Designating Death by Lethal Injection is hereby repealed. Republic Act No. Seven Thousand Six Hundred Fifty-Nine (R.A. No. 7659), otherwise known as the Death Penalty Law, and all other laws, executive orders and decrees, insofar as they impose the death penalty are hereby repealed or amended accordingly.

Sec. 2. – In lieu of the death penalty, the following

shall be imposed. a. the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties of the Revised Penal Code; or b. the penalty of life imprisonment, when the law violated does not make use of the nomenclature of the penalties of the Revised Penal Code. Distinguished from the constitutional prohibition In the constitutional prohibition on death penalty, the latter is placed in a “suspensive condition” or in a “state of hibernation.” It is included in the computation of penalty but not imposed. Unlike the Constitution, Rep. Act No. 9346 does expressly

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stipulate the amendment of all extant laws insofar as they called for the imposition of the penalty of death. Henceforth, "death," as utilized in Article 71 of the Revised Penal Code, shall no longer form part of the equation in the graduation of penalties. For example, in the case of appellant, the determination of his penalty for attempted rape shall be reckoned not from two degrees lower than death, but two degrees lower than reclusion perpetua. [People v. Bon, G.R. No. 166401 (2006)] Note that the death penalty remains in the Revised Penal Code. R.A. No. 9346 merely prohibits the imposition of the death penalty. Heinous crimes remain “heinous.” It should be understood that the debarring of the death penalty through Rep. Act No. 9346 did not correspondingly declassify those crimes previously catalogued as "heinous" (in RA 7659). The amendatory effects of Rep. Act No. 9346 extend only to the application of the death penalty but not to the definition or classification of crimes. Accordingly, Rep. Act No. 9346 does not serve as basis for the reduction of civil indemnity and other damages that adhere to heinous crimes. [People v. Bon, supra.] But see computation of penalty for privileged mitigating circumstance of minority, under minority as exempting circumstance.

2. Classification a. Major Classification 1. 2. 3.

PRINCIPAL PENALTIES. Those expressly imposed by the court in the judgment of conviction. ACCESSORY PENALTIES. Those that are deemed included in the imposition of the principal penalties. SUBSIDIARY PENALTIES. Those imposed in lieu of principal penalties, i.e., imprisonment in case of inability to pay the fine.

Principal and accessory penalty, distinguished A principal penalty is expressly imposed by the court, while an accessory penalty is deemed included in the imposition of the principal penalty.

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Either principal or accessory 1. Perpetual or temporary absolute disqualification 2. Perpetual or temporary special disqualification (e.g., Arts. 226-228, RPC) 3. Suspension (e.g., Art. 236, RPC) These may be principal or accessory penalties, because they are formed in the two general classes.

Art. 58. Additional penalty to be imposed upon certain accessories –Those accessories falling within the terms of paragraphs 3 of Article 19 of this Code who should act with abuse of their public functions, shall suffer the additional penalty of absolute perpetual disqualification if the principal offender shall be guilty of a grave felony, and that of absolute temporary disqualification if he shall be guilty of a less grave felony.

b. Other Classifications of Penalties 1.

According to divisibility Divisible. (a) Those that have fixed duration. (b) Those that can be divided into three periods. Indivisible. Those that have no fixed duration (e.g., Reclusion perpetua; perpetual absolute or special disqualification; public censure)

2.

According to subject-matter Corporal. Death. Deprivation of freedom. Reclusion, prision, arresto. Restriction of freedom. Destierro. Deprivation of rights. Disqualification, suspension. Pecuniary. Fine.

3.

According to gravity

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3. Duration and Effects SCALE OF PRINCIPAL PENALTIES a. Capital Punishment: Death b. Afflictive Penalties (RP, RT, PAD, TAD, PSD, TSD, PM) 1. Reclusion perpetua, 2. Reclusion temporal, 3. Perpetual or temporary absolute disqualification, 4. Perpetual or temporary special disqualification, 5. Prision mayor. a. Correctional Penalties (PC, AM, S, Des) 1. Prision correccional 2. Arresto mayor 3. Suspension 4. Destierro b. Light Penalties (Am,Pc) 1. Arresto menor 2. Public censure c. Penalties Common to the Three Preceding Classes (F, Bond) 1. Fine 2. Bond to keep the peace. SCALE OF ACCESSORY PENALTIES (PAD, TAD, PSD, TSD, S, CI, I, F, Pay) a. Perpetual or temporary absolute disqualification b. Perpetual or temporary special disqualification c. Suspension from public office, the right to vote and be voted for, the profession or calling d. Civil interdiction, e. Indemnification, f. Forfeiture or confiscation of instruments and proceeds of the offense, g. Payment of costs

Capital; afflictive; correctional; light. See Arts. 25 and 26. Penalty Death (REPEALED)

Duration Indivisible

Effects

Accessories 1.

Death, when not executed due to pardon or commutation (REPEALED)

2.

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Civil interdiction for life or during the period of the sentence as the case may be Perpetual Absolute Disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon

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Penalty

Duration

Effects

Reclusion perpetua

20 years & 1 day to 40 years (Indivisible)

Deprivation of freedom

1.

Perpetual absolute disqualification (PAD)

2. For life 3. 4. 1.

Perpetual special disqualification (PSD)

For life 2.

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Accessories 1. Civil interdiction for life or during the period of the sentence as the case may be 2. Perpetual Absolute Disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon

Deprivation of public office, even if by election Deprivation of right to vote & be voted for Disqualification from public office held Loss of retirement rights Deprivation of office, employment, profession, or calling affected Disqualification from similar offices or employments 1.

Reclusion temporal

12 years & 1 day to 20 years

2. Deprivation of freedom

1. 2. Prision mayor

6 years & 1 day to 12 years

Deprivation of freedom

1. 2. Temporary absolute disqualification (TAD)

6 years & 1 day to 12 years

3. 4.

Temporary special disqualification (TSD)

6 years & 1 day to 12 years

1.

Deprivation of public office, even if by election Deprivation of right to vote & be voted for during sentence Disqualification from public office held during sentence Loss of retirement rights Deprivation of office, employment, Page 91 of 310

Civil interdiction for life or during the period of the sentence as the case may be. Perpetual Absolute Disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon. Temporary Absolute Disqualification Perpetual Special Disqualification from the right to suffrage which the offender shall suffer although pardoned as to the principal penalty unless the same shall have been expressly remitted in the pardon.

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Penalty

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Duration

Effects profession, or calling affected 2. Disqualification from similar offices or employment

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Accessories

1. 2. Prision correccional

6 months & 1 day to 6 years

Suspension

6 months & 1 day to 6 years

Destierro

6 months & 1 day to 6 years

Arresto mayor

1 month & 1 day to 6 months

Deprivation of freedom

1. 2.

Arresto menor

1 day to 30 days

Deprivation of freedom

1. 2.

Public censure Fine Bond to keep peace

Deprivation of freedom

3.

Suspension from public office Suspension from the right to follow a profession or calling Perpetual Special Disqualification for the right of suffrage, if the duration of the imprisonment shall exceed 18 months

1. Public office 2. Profession or calling 3. Suffrage Prohibition to enter w/in 25-250 km radius from the designated place Suspension of right to hold office Suspension of the right of suffrage during the term of the sentence Suspension of right to hold office Suspension of the right of suffrage during the term of the sentence

Pecuniary Not imposable. Violates Art. 21, RPC.

a. Capital Punishment

clarification in the Lucas case that Republic Act No. 7659 had simply restated existing jurisprudence when it specified the duration of reclusion perpetua at 20 years and 1 day to 40 years.

See discussion on death penalty.

b. Afflictive Penalties 1. Reclusion Perpetua Indivisibility. Reclusion perpetua remains an indivisible penalty despite the duration provided for it.

People v. Gatward, G.R. Nos. 119772-73

(1997): In RA 7659, the penalty of reclusion perpetua is now accorded a defined duration ranging from twenty (20) years and one (1) day to forty (40) years, through the amendment introduced by it to Article 27 of the Revised Penal Code. This led the trial court to believe that reclusion perpetua has become a divisible penalty. Held: Article 70 of RPC provides that the maximum period in regard to service of the sentence shall not exceed 40 years. Under these accepted propositions, the Court ruled in the motion for

No need to specify length of imprisonment. In imposing the penalty of reclusion perpetua, it is unnecessary for the court to specify the length of imprisonment.

People v. Ramirez, G.R. No. 138261 (2001):

Reclusion perpetua is imprisonment for life but the person sentenced to suffer it shall be pardoned after undergoing the penalty for thirty (30) years, unless by reason of his conduct or some other serious cause, he shall be considered by the Chief Executive as unworthy of pardon (Art. 27). Reclusion perpetua and life imprisonment, distinguished. [People v. Ballabare, G.R. No. 108871 (1996)] Cadena perpetua Reclusion perpetua (Life imprisonment) Imposed for serious Prescribed under the offenses penalized by RPC special laws

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Cadena perpetua (Life imprisonment) No accessory penalties

Does not appear to have any definite extent or duration

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Reclusion perpetua With accessory penalties Entails imprisonment for at least 30 years after which the convict becomes eligible for pardon although the maximum period shall in no case exceed 40 years

AM No. 15-08-02-SC, in rel. to sec. 3 of RA No. 9346. Sec. 3. Persons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended. (1) In cases where the death penalty is not warranted, there is no need to use the phrase "without eligibility for parole" to qualify the penalty of reclusion perpetua; it is understood that convicted persons penalized with an indivisible penalty are not eligible for parole; and (2) When circumstances are present warranting the imposition of the death penalty, but this penalty is not imposed because of R.A. 9346, the qualification of "without eligibility for parole" shall be used to qualify reclusion perpetua in order to emphasize that the accused should have been sentenced to suffer the death penalty had it not been for R.A. No. 9346.

People v. Buca, G.R. No. 209587 (2015): The

CA, in the dispositive portion of its Decision, sentenced accused-appellant to suffer the penalty of reclusion perpetua, without the benefit of parole. A.M. No. 15-08-02-SC31 is instructive on the matter of using the phrase without eligibility for parole to qualify indivisible penalties. In the instant case, since the accused-appellant committed simple rape, a crime penalized by reclusion perpetua only, the dispositive portion of this decision should plainly state that he is sentenced to suffer the penalty of reclusion perpetua without any qualification.

2.

Reclusion Temporal

3.

Prision Mayor

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c. Correctional Penalties 1. Prision Correctional Article 39. Subsidiary Penalty –If the convict has no property with which to meet the fine mentioned in paragraph 3 of the next preceding article, he shall be subject to a subsidiary personal liability at the rate of one day for each amount equivalent to the highest minimum wage rate prevailing in the Philippines at the time of the rendition of judgment of conviction by the trial court, subject to the following rules:

1. If the principal penalty imposed be prision correctional or arresto and fine, he shall remain under confinement until his fine referred in the preceding paragraph is satisfied, but his subsidiary imprisonment shall not exceed one-third of the term of the sentence, and in no case shall it continue for more than one year, and no fraction or part of a day shall be counted against the prisoner.

2. Arresto Mayor See Art. 39(1).

3. Destierro Destierro applies [Reyes] (F, ICE) a. In case of Failure to give bond for good behavior (Art. 284) b. Serious physical Injuries c. Penalty of Concubine in concubinage (Art. 334) d. Death under Exceptional circumstances (Art. 247) e. In cases where after reducing the penalty by one or more degrees, destierro is the proper penalty

d. Light Penalties 1. Arresto Menor See Art. 39(1).

2. Public Censure

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e. Penalties Common to Afflictive, Correctional, and Light Penalties

1.

2.

1. Fine Article 26—Classification of PENALTIES Afflictive More than 6,000 Correctional 200 to 6,000 Light Below 200

3. 4.

Classification of penalty, not felony This article merely classifies fine and has nothing to do with the definition of light felony. What to consider The court can fix any amount of the fine within the limits established by law. It must consider (1) the mitigating and aggravating circumstances, and more particularly, (2) the wealth or means of the culprit. [Art. 66] When the law does not fix the minimum of the fine, the determination of the amount of the fine to be imposed upon the culprit is left to the sound discretion of the court, provided it shall not exceed the maximum authorized by law. Not divisible Fines are not divided into three equal portions.

5.

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The arrest and temporary detention of accused persons, as well as their detention by reason of insanity or imbecility, or illness requiring their confinement in a hospital. The commitment of a minor to any of the institutions mentioned in Article 80 and for the purposes specified therein. Suspension from the employment of public office during the trial or in order to institute proceedings. Fines and other corrective measures which, in the exercise of their administrative disciplinary powers, superior officials may impose upon their subordinates. Deprivation of rights and the reparations which the civil laws may establish in penal form.

Number 2 is not a penalty because the court does not impose it in a judgment of conviction. Numbers 3 and 4 are preventive measures. The rest are not penalties because they are not imposed as a result of judicial proceedings. Art. 229, Family Code

Article 229, Family Code. – Unless subsequently revived by a final judgment, parental authority also terminates: xxx

(3) Upon judicial declaration of abandonment of the child in a case filed for the purpose;

2. Bond to Keep The Peace Art. 21. Penalties that may be imposed. – No felony shall be punishable by any penalty not prescribed by law prior to its commission.

Cannot be imposed This bond is not provided as a penalty for any felony and therefore cannot be imposed by the court. Not bail bond Bond to keep the peace is different from bail bond which is posted for the provisional release of a person arrested for or accused of a crime.

f. Measures Not Considered Penalties Art. 24

Art. 24. Measures of prevention or safety which are not considered penalties. – The following

(4) Upon final judgment of a competent court divesting the party concerned of parental authority; xxx

g. When the Duration of Penalty Begins Penalty begins (Art. 28) 1. (Rule 1) When the offender is in prison—the duration of temporary penalties is from the day on which the judgment of conviction becomes final. 2. (Rule 2) When the offender is not in prison—the duration of penalty consisting in deprivation of liberty, is from the day that the offender is placed at the disposal of judicial authorities for the enforcement of the penalty. 3. (Rule 3) The duration of other penalties—the duration is from the day on which the offender commences to serve his sentence.

shall not be considered as penalties:

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Rules in cases of temporary penalties If offender is under detention, as when he is undergoing preventive imprisonment, Rule No. 1 applies. If not under detention, because the offender has been released on bail, Rule No. 3 applies. Examples of temporary penalties 1. Temporary absolute disqualification 2. Temporary special disqualification 3. Suspension Rules in cases of deprivation of liberty When the offender is not in prison, Rule No. 2 applies. If the offender is undergoing preventive imprisonment, Rule No. 3 applies but the offender is entitled to a deduction of full time or 4/5 of the time of his detention. Examples of penalties consisting in deprivation of liberty: 1. Imprisonment 2. Destierro Rules in preventive imprisonment

Art. 29. Period of preventive imprisonment deducted from term of imprisonment. –

Offenders who have undergone preventive imprisonment shall be credited in the service of their sentence consisting of deprivation of liberty, with the full time during which they have undergone preventive imprisonment, if the detention prisoner agrees voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners, except in the following cases: 1. When they are recidivists or have been convicted previously twice or more times of any crime; and 2. When upon being summoned for the execution of their sentence they have failed to surrender voluntarily. If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon convicted prisoners, he shall be credited in the service of his sentence with four-fifths of the time during which he has undergone preventive imprisonment. (As amended by Republic Act 6127, June 17, 1970). Whenever an accused has undergone preventive imprisonment for a period equal to or more than the possible maximum imprisonment of the

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offense charged to which he may be sentenced and his case is not yet terminated, he shall be released immediately without prejudice to the continuation of the trial thereof or the proceeding on appeal, if the same is under review. In case the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment. (As amended by E.O. No. 214, July 10, 1988). When preventive imprisonment applies The accused undergoes preventive imprisonment when the offense charged is nonbailable, or even if bailable, he cannot furnish the required bail. Immediate release The convict is to be released immediately if the penalty imposed after trial is less than the full time or four-fifths of the time of the preventive imprisonment. Look at maximum possible penalty The accused shall be released immediately whenever he has undergone preventive imprisonment for a period equal to or more than the possible maximum imprisonment for the offense charged.

4. Application a. Indeterminate Sentence Law (RA 4103, as Amended) Purpose To uplift and redeem valuable human material and prevent unnecessary and excessive deprivation of liberty and economic usefulness. The law is intended to favor the defendant, particularly to shorten his term of imprisonment, depending upon his behavior and his physical, mental and moral record as a prisoner, to be determined by the Board of Indeterminate Sentence. It is necessary to consider the criminal first as an individual, and second as a member of the society. Excluded from coverage The following are excluded from coverage: (PH LENDS TRES TV) 1. Those convicted of piracy 2. Those who are habitual delinquents (but applies to recidivists) 3. Those convicted of offenses punished with death penalty or life imprisonment

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4.

Those who shall have escaped from confinement or evaded service of sentence 5. Those whose maximum term of imprisonment does not exceed one year 6. Those sentenced to the penalty of destierro or suspension [DS] 7. Those convicted of misprision of treason, rebellion, sedition or espionage 8. Those convicted of treason, conspiracy or proposal to commit treason 9. Those who violated the terms of conditional pardon granted to them by the Chief Executive 10. Those who, upon the approval of the law, had been sentenced by final judgment On those who escaped confinement A minor who escaped from confinement in the reformatory is entitled to the benefits of the ISL because his confinement is not considered imprisonment. See reclusion perpetua and A.M. No. 15-08-02-SC

1. Application of ISL Some definitions [People v. Temporada, G.R. No. 173473 (2008)] An initial penalty as a general prescription for Prescribed the felonies For homicide: penalty defined therein reclusión temporal which consists of a range of period of time. For homicide with one ordinary Penalty after the aggravating attending or circumstance Imposable modifying and no penalty circumstances mitigating have been circumstances: appreciated reclusion temporal penalty in its maximum period A single fixed 17 years, 4 Penalty penalty (also months and 1 actually called a straight day of reclusión imposed penalty) chosen temporal by the court Maximum and minimum terms. [People v. Temporada, supra] a. The maximum penalty is the penalty actually imposed

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b. The minimum penalty is the penalty next lower than the prescribed penalty

People v. Saley, G.R. No. 121179 (1998): The fact

that the amounts involved in the instant case of estafa exceed P22,000.00 should not be considered in the initial determination of the indeterminate penalty; instead, the matter should be so taken as analogous to modifying circumstances in the imposition of the maximum term of the full indeterminate sentence. This interpretation of the law accords with the rule that penal laws should be construed in favor of the accused. Since the penalty prescribed by law for the estafa charge against accused-appellant is prision correccional maximum to prision mayor minimum, the penalty next lower would then be prision correccional minimum to medium. Thus, the minimum term of the indeterminate sentence should be anywhere within six (6) months and one (1) day to four (4) years and two (2) months. Why “indeterminate sentence” After serving the minimum, the convict may be released on parole, OR if he is not fitted for release, he shall continue serving his sentence until the end of the maximum. For special laws If the crime is a violation of a special law, ISL merely requires that the maximum term thereof shall not exceed the maximum fixed by the special law while the minimum shall not be less than the minimum prescribed therein. However, where the penalty in the special law adopts the technical nomenclature and signification of the penalties under the Revised Penal Code (RPC), such as “prision mayor”, “prision correccional maximum”, etc., the ascertainment of the indeterminate sentence will be based on the rule intended for those crimes punishable under the RPC.

Imbo v. People, G.R. No. 206513 (2015)

Held: For an offense punished by the Code, the minimum shall be within the range of the penalty next lower to that prescribed by the Code for the offense. If the offense is punished by any other law, the minimum shall not be less than the minimum specified by said law. The correct application of the Indeterminate Sentence Law has long been clarified in People v. Simon which ruled that the underscored portion of Section 1 of the Indeterminate Sentence Law, i.e. the "offense is punished by any other law," indubitably refers to an offense under a special law where

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the penalty imposed was not taken from and is without reference to the RPC.

2. Conditions for Parole Sec. 6, RA 4103. Every prisoner released from

confinement on parole by virtue of this Act shall, at such times and in such manner as may be required by the conditions of his parole, as may be designated by the said Board for such purpose, report personally to such government officials or other parole officers hereafter appointed by the Board of Indeterminate Sentence for a period of surveillance equivalent to the remaining portion of the maximum sentence imposed upon him or until final release and discharge by the Board of Indeterminate Sentence as herein provided. The officials so designated shall keep such records and make such reports and perform such other duties hereunder as may be required by said Board. The limits of residence of such paroled prisoner during his parole may be fixed and from time to time changed by the said Board in its discretion. If during the period of surveillance such paroled prisoner shall show himself to be a law-abiding citizen and shall not violate any of the laws of the Philippine Islands, the Board of Indeterminate Sentence may issue a final certificate of release in his favor, which shall entitle him to final release and discharge.

Sec. 8, RA 4103. Whenever any prisoner released

on parole by virtue of this Act shall, during the period of surveillance, violate any of the conditions of his parole, the Board of Indeterminate Sentence may issue an order for his re-arrest which may be served in any part of the Philippine Islands by any police officer. In such case the prisoner so rearrested shall serve the remaining unexpired portion of the maximum sentence for which he was originally committed to prison, unless the Board of Indeterminate Sentence shall, in its discretion, grant a new parole to the said prisoner.

b. Three-Fold Rule Art. 70. Successive service of sentence. – When

the culprit has to serve two or more penalties, he shall serve them simultaneously if the nature of the penalties will so permit otherwise, the following rules shall be observed: In the imposition of the penalties, the order of their respective severity shall be followed so that they may be executed successively or as nearly as

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may be possible, should a pardon have been granted as to the penalty or penalties first imposed, or should they have been served out. For the purpose of applying the provisions of the next preceding paragraph the respective severity of the penalties shall be determined in accordance with the following scale: 1. Death, 2. Reclusion perpetua, 3. Reclusion temporal, 4. Prision mayor, 5. Prision correccional, 6. Arresto mayor, 7. Arresto menor, 8. Destierro, 9. Perpetual absolute disqualification, 10 Temporal absolute disqualification. 11. Suspension from public office, the right to vote and be voted for, the right to follow a profession or calling, and 12. Public censure. Notwithstanding the provisions of the rule next preceding, the maximum duration of the convict's sentence shall not be more than three-fold the length of time corresponding to the most severe of the penalties imposed upon him. No other penalty to which he may be liable shall be inflicted after the sum total of those imposed equals the same maximum period. Such maximum period shall in no case exceed forty years. In applying the provisions of this rule the duration of perpetual penalties (pena perpetua) shall be computed at thirty years. Simultaneous service 1. When the culprit has to serve 2 or more penalties, he shall serve them simultaneously if the nature of the penalties will so permit. 2. Otherwise, the order of their respective severity shall be followed. What can be simultaneously served with one another [Ka-DDS Bond Fine in CCP] 1. Perpetual absolute Disqualification 2. Perpetual special Disqualification 3. Temporary absolute Disqualification 4. Temporary special Disqualification 5. Destierro 6. Suspension 7. Bond to keep the peace and Fine 8. Civil interdiction 9. Confiscation and payment of costs

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10. Public censure Simultaneous with imprisonment All of the above can be served simultaneously with imprisonment, except destierro. Deprivation of liberty Penalties consisting in deprivation of liberty cannot be served simultaneously by reason of the nature of such penalties. [In re: Pete Lagran, G.R. No. 14770 (2001)]

3.

4.

“The most severe of penalties” The phrase “the most severe of the penalties” includes equal penalties. Not “imposition of penalty,” but “service” Court must impose all the penalties for all the crimes of which the accused is found guilty, but in the service of the same, they shall not exceed three times the most severe and shall not exceed 40 years. [Mejorada v. Sandiganbayan, G.R. Nos. L-51065-72 (1987)

c. Subsidiary Imprisonment Art. 38. Pecuniary liabilities; Order of payment

– In case the property of the offender should not be sufficient for the payment of all his pecuniary liabilities, the same shall be met in the following order: 1. The reparation of the damage caused. 2. Indemnification of consequential damages. 3. The fine. 4. The cost of the proceedings.

Art. 39. Subsidiary Penalty. – If the convict has

no property with which to meet the fine mentioned in paragraph 3 of the next preceding article, he shall be subject to a subsidiary personal liability at the rate of one day for each amount equivalent to the highest minimum wage rate prevailing in the Philippines at the time of the rendition of judgment of conviction by the trial court, subject to the following rules: 1. If the principal penalty imposed be prision correctional or arresto and fine, he shall remain under confinement until his fine referred in the preceding paragraph is satisfied, but his subsidiary imprisonment shall not exceed onethird of the term of the sentence, and in no case shall it continue for more than one year, and no fraction or part of a day shall be counted against the prisoner. 2. When the principal penalty imposed be only a fine, the subsidiary imprisonment shall not

5.

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exceed six months, if the culprit shall have been prosecuted for a grave or less grave felony, and shall not exceed fifteen days, if for a fight felony. When the principal penalty imposed is higher than prision correctional, no subsidiary imprisonment shall be imposed upon the culprit. If the principal penalty imposed is not to be executed by confinement in a penal institution, but such penalty is of fixed duration, the convict, during the period of time established in the preceding rules, shall continue to suffer the same deprivations as those of which the principal penalty consists. The subsidiary personal liability which the convict may have suffered by reason of his insolvency shall not relieve him from the fine in case his financial circumstances should improve."

Subsidiary penalty It is personal liability to be suffered by the convict who has no property with which to meet the fine at the rate of one day for each amount equivalent to the highest minimum wage rate prevailing in the Philippines at the time of the rendition of judgment of conviction by the trial court, subject to the rules provided for in Article 39. When not in judgment of conviction An accused cannot be made to undergo subsidiary imprisonment in case of insolvency to pay the fine imposed upon him when the subsidiary imprisonment is not imposed in the judgment of conviction. [Ramos v. Gonong, G.R. No. L-42010 (1976)] Not alternative A convict—who has property (a) not exempt from execution and (b) sufficient enough to meet the fine—cannot choose to serve the subsidiary penalty. NOT included in COMPUTATION of the threefold rule In cases where pecuniary liabilities are applied, follow these steps: 1. Multiply the highest principal penalty by three. 2. If the result of Step 1 EXCEEDS 6 years, there can be no subsidiary imprisonment despite the nonsatisfaction of pecuniary liabilities. 3. If the result of Step 1 is 6 years and below, the culprit has to: a. Serve the aggregate principal penalties until he reaches the ceiling imposed by the threefold rule.

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b. Serve the subsidiary imprisonment if he becomes insolvent. [Bagtas v. Director of Prisons, G.R. No. L-3215 (1949)]

5. Graduation of Penalties DEGREES AND DISTINGUISHED

PENALTIES,

Degree The whole of the penalty prescribed by the law, the “next lower” as computed through art. 61, or one unit of the penalties enumerated in the graduated scales provided for in Art. 71. How affected Graduation of penalties by degrees considers the following: a. Stages of execution (consummated, frustrated, attempted) b. Extent of participation (principal, accomplice, accessory) c. Privileged mitigating circumstances alleged in the Information d. Qualifying circumstances alleged in the Information Period The one-third portion of a divisible penalty, called either minimum, medium, or maximum. Indivisible and divisible penalties The INDIVISIBLE PENALTIES are: a. Death b. Reclusion perpetua c. Public censure

Arts. 50-57, summarized Consummat ed Principal 0 Accompli 1 ce Accessory 2

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Frustrat ed 1 2

Attempt ed 2 3

3

4

“0” represents the penalty prescribed by law in defining a crime, which is to be imposed on the PRINCIPAL in a CONSUMMATED OFFENSE, in accordance with the provisions of Art. 46.

Art. 46. Penalty to be imposed upon principals in general. . – The penalty prescribed by law for

the commission of a felony shall be imposed upon the principals in the commission of such felony. Whenever the law prescribes a penalty for a felony is general terms, it shall be understood as applicable to the consummated felony. The other figures represent the degrees to which the penalty must be lowered, according to the stage of execution and extent of participation of the accused. Exceptions: Arts. 50 to 57 shall not apply to cases where the law expressly prescribes the penalty for frustrated or attempted felony, or to be imposed upon accomplices or accessories. (Art. 60) Penalty imposed upon an accomplice. a. The ascendants, guardians, curators, teachers and any person who, by abuse of authority or confidential relationship, shall cooperate as accomplices in the crimes of rape, acts of lasciviousness, seduction, corruption of minors, white slave trade or abduction (Art. 346) b. One who furnished the place for the perpetration of the crime of slight illegal detention (Art. 268)

The DIVISIBLE PENALTIES are: a. Reclusion temporal b. Prision mayor c. Prision correccional d. Arresto mayor e. Destierro f. Arresto menor How affected Graduation of penalties by periods considers the ordinary aggravating circumstances alleged in the Information and the attendant ordinary mitigating circumstances.

Penalty imposed upon an accessory. a. When accessory is punished as principal: • Knowingly concealing certain evil practices enumerated in Art. 142 • Obstruction of justice — See discussion under accomplices. b. When accessories are punished with a penalty one degree lower: • Knowingly using counterfeited seal or forged signature or stamp of the President (Art. 162). • Illegal possession and use of a false treasury or bank note (Art. 168).

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• •

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Using falsified document (Art. 173 par.3) Using falsified dispatch (Art. 173 par. 2)

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Paragraphs 1 to 3. Scenario

Defining “next lower” by Art. 61

Art. 61. Rules for graduating penalties. – For

the purpose of graduating the penalties which, according to the provisions of Articles 50 to 57, inclusive, of this Code, are to be imposed upon persons guilty as principals of any frustrated or attempted felony, or as accomplices or accessories, the following rules shall be observed: 1. When the penalty prescribed for the felony is single and indivisible, the penalty next lower in degrees shall be that immediately following that indivisible penalty in the respective graduated scale prescribed in Article 71 of this Code. 2. When the penalty prescribed for the crime is composed of two indivisible penalties, or of one or more divisible penalties to be impose to their full extent, the penalty next lower in degree shall be that immediately following the lesser of the penalties prescribed in the respective graduated scale. 3. When the penalty prescribed for the crime is composed of one or two indivisible penalties and the maximum period of another divisible penalty, the penalty next lower in degree shall be composed of the medium and minimum periods of the proper divisible penalty and the maximum periods of the proper divisible penalty and the maximum period of that immediately following in said respective graduated scale. 4. when the penalty prescribed for the crime is composed of several periods, corresponding to different divisible penalties, the penalty next lower in degree shall be composed of the period immediately following the minimum prescribed and of the two next following, which shall be taken from the penalty prescribed, if possible; otherwise from the penalty immediately following in the above mentioned respective graduated scale. 5. When the law prescribes a penalty for a crime in some manner not especially provided for in the four preceding rules, the courts, proceeding by analogy, shall impose corresponding penalties upon those guilty as principals of the frustrated felony, or of attempt to commit the same, and upon accomplices and accessories.

Art. 61(1) e.g.

Art. 61(2)

e.g.

Art. 61(2)

e.g.

When the penalty is single and indivisible reclusion perpetua When the penalty is composed of two indivisible penalties reclusion perpetua to death When the penalty is composed of one or more divisible penalties to be imposed to their full extent prision correccional to prision mayor

Art. 61(3)

When the penalty is composed of two indivisible penalties and the maximum period of a divisible penalty

e.g.

reclusion temporal in its MAXIMUM period to death

Art. 61(3)

When the penalty is composed of one indivisible penalty and the maximum period of a divisible penalty

e.g.

reclusion temporal in its MAXIMUM period to

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The next lower degree is The penalty that follows the single and indivisible penalty in art. 71 reclusion temporal The penalty that follows the lesser of the two in art. 71 reclusion temporal The penalty immediately following the lesser of the divisible penalties in art. 71 arresto mayor The MEDIUM and MINIMUM period of the divisible penalty and the MAXIMUM of that immediately following penalty prision mayor in its maximum to reclusion temporal in its medium The MEDIUM and MINIMUM period of the divisible penalty and the MAXIMUM of that immediately following penalty prision mayor in its maximum to reclusion temporal in its medium

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Scenario

The next lower degree is

reclusion perpetua

Pars. 4 and 5 The rules prescribed in pars. 4 and 5 of Art. 61 may be simplified as follows: a. If the penalty prescribed by the Code consists in 3 periods, corresponding to different divisible penalties, the penalty next lower in degree is the penalty consisting in the 3 periods down in the scale. b. If the penalty prescribed by the Code consists in 2 periods, the penalty next lower in degree is the penalty consisting in 2 periods down in the scale. c. If the penalty prescribed by the Code consists in only 1 period, the penalty next lower in degree is the next period down in the scale. Minimum of ISL The rules provided for in Art. 61 should also apply in determining the MINIMUM of the indeterminate penalty under the Indeterminate Sentence Law. The MINIMUM of the indeterminate penalty is within the range of the penalty next lower than that prescribed by the RPC for the offense. Privileged mitigating circumstance Those rules also apply in lowering the penalty by one or two degrees by reason of the presence of privileged mitigating circumstance (Arts. 68 and 69), or when the penalty is divisible and there are two or more mitigating circumstances (generic) and no aggravating circumstance (Art. 64).

6. Accessory Penalties a. Perpetual or Temporary Absolute Disqualification Effects 1. Deprivation of any public office or employment of offender; 2. Deprivation of the right to vote in any election or to be voted upon; 3. Loss of rights to retirement pay or pension.

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the public office or employment; and (2) loss of all rights to retirement pay or other pension for any office formerly held. (See Art. 30, par. 3). Exclusion A plebiscite is not mentioned or contemplated in the deprivation of the right to vote; hence, the offender may vote in that exercise, subject to the provisions of pertinent election laws at the time.

b. Perpetual or Temporary Special Disqualification EFFECTS For public office, profession or calling 1. Deprivation of the office, employment, profession or calling affected; 2. Disqualification for holding similar offices or employments during the period of disqualification. For the exercise of right to suffrage 1. Deprivation of the right to vote or to be elected in an office; 2. Cannot hold any public office during the period of disqualification. (Art. 31). Notes: 1. The penalty for disqualification if imposed as an accessory penalty is imposed for PROTECTION and NOT for the withholding of a privilege. 2. If temporary disqualification or suspension is imposed as an accessory penalty, the duration is the same as that of the principal penalty.

c. Suspension from Public Office, the Right to Vote and be Voted for, the Right to Practice a Profession or Calling Effects 1. Disqualification from holding such office or the exercise of such profession or right of suffrage during the term of the sentence; 2. Cannot hold another office having similar functions during the period of suspension. (Art. 32).

Duration 1. Perpetual absolute disqualification is effective during the lifetime of the convict and even after the service of the sentence. 2. Temporary absolute disqualification lasts during the term of the sentence except (1) deprivation of Page 101 of 310

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d. Civil Interdiction Effects Deprivation of the following rights: 1. Parental authority 2. Guardianship over the ward 3. Marital authority 4. Right to manage property and to dispose of the same by acts inter vivos. (Note: The convict can still dispose his property mortis causa). From the New Civil Code Art. 1323, CC. – An offer becomes ineffective upon the death, civil interdiction, insanity, or insolvency of either party before acceptance is conveyed.

Art. 1830, CC. – Dissolution [of partnership] is

caused: Xxx (7) By the civil interdiction of any partner; xxx

Art. 1860, CC. – The retirement, death,

insolvency, insanity or civil interdiction of a general partner dissolves the partnership, unless the business is continued by the remaining general partners: 1. Under a right so to do stated in the certificate, or 2. With the consent of all members.

Art. 1919, CC.. – Agency is extinguished:

Xxx (3) By the death, civil interdiction, insanity or insolvency of the principal or of the agent; xxx Note: Civil interdiction is an accessory penalty to the following principal penalties: 1. Death if commuted to life imprisonment; 2. Reclusion perpetua 3. Reclusion temporal

e. Indemnification or Confiscation of Instruments or Proceeds of the Offense Effects Forfeiture in favor of the Government of the proceeds of the crime and the instruments or tools with which it was committed.

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Notes: 1. This is included in every penalty for the commission of the crime. The confiscation is in favor of the government. 2. Property of a third person not liable for the offense is not subject to confiscation. 3. If the trial court did not order any confiscation of the proceeds of the crime, the government cannot appeal from the confiscation as that would increase the penalty already imposed. RA 1379—An Act Declaring Forfeiture in Favor of the State Any Property Found To Have Been Unlawfully Acquired By Any Public Officer or Employee and Providing for the Proceedings Therefor. Sec. 1. Definitions. – xxx (b) "Other legitimately acquired property" means any real or personal property, money or securities which the respondent has at any time acquired by inheritance and the income thereof, or by gift inter vivos before his becoming a public officer or employee, or any property (or income thereof) already pertaining to him when he qualified for public office or employment, or the fruits and income of the exclusive property of the respondent's spouse. It shall not include: 1. Property unlawfully acquired by the respondent, but its ownership is concealed by its being recorded in the name of, or held by, the respondent's spouse, ascendants, descendants, relatives, or any other person. 2. Property unlawfully acquired by the respondent, but transferred by him to another person or persons on or after the effectivity of this Act. 3. Property donated to the respondent during his incumbency, unless he can prove to the satisfaction of the court that the donation is lawful.

Sec. 6. Judgment. If the respondent is unable to

show to the satisfaction of the court that he has lawfully acquired the property in question, then the court shall declare such property, forfeited in favor of the State, and by virtue of such judgment the property aforesaid shall become property of the State: Provided, That no judgment shall be rendered within six months before any general election or within three months before any special election. The Court may, in addition, refer this case to the corresponding Executive Department for administrative or criminal action, or both.

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Comprehensive Dangerous Drugs Act of 2002, as amended

RA 7080 or the Plunder Law

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 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. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stock derived from the deposit or investment thereof forfeited in favor of the State. (As amended by RA 7659, approved Dec. 13, 1993.) Private person cannot be charged with plunder without public officer Plunder is defined as a crime committed by a public officer by himself or in connivance with others. RA 3019 or the Anti-Graft and Corrupt Practices Act Sec. 9. Penalties for violations. – (a) Any public officer or private person committing any of the unlawful acts or omissions enumerated in Sections 3, 4, 5 and 6 of this Act shall be punished with imprisonment for not less than six years and one month nor more than fifteen years, perpetual disqualification from public office, and confiscation or forfeiture in favor of the Government of any prohibited interest and unexplained wealth manifestly out of proportion to his salary and other lawful income. Any complaining party at whose complaint the criminal prosecution was initiated shall, in case of conviction of the accused, be entitled to recover in the criminal action with priority over the forfeiture in favor of the Government, the amount of money or the thing he may have given to the accused, or the fair value of such thing.

Sec. 20. Confiscation and Forfeiture of the Proceeds or Instruments of the Unlawful Act, Including the Properties or Proceeds Derived from the Illegal Trafficking of Dangerous Drugs and/or Precursors and Essential Chemicals.. – Every penalty imposed for the

unlawful importation, sale, trading, administration, dispensation, delivery, distribution, transportation or manufacture of any dangerous drug and/or controlled precursor and essential chemical, the cultivation or culture of plants which are sources of dangerous drugs, and the possession of any equipment, instrument, apparatus and other paraphernalia for dangerous drugs including other laboratory equipment, shall carry with it the confiscation and forfeiture, in favor of the government, of all the proceeds and properties derived from the unlawful act, including, but not limited to, money and other assets obtained thereby, and the instruments or tools with which the particular unlawful act was committed, unless they are the property of a third person not liable for the unlawful act, but those which are not of lawful commerce shall be ordered destroyed without delay pursuant to the provisions of Section 21 of this Act. After conviction in the Regional Trial Court in the appropriate criminal case filed, the Court shall immediately schedule a hearing for the confiscation and forfeiture of all the proceeds of the offense and all the assets and properties of the accused either owned or held by him or in the name of some other persons if the same shall be found to be manifestly out of proportion to his/her lawful income: Provided, however, That if the forfeited property is a vehicle, the same shall be auctioned off not later than five (5) days upon order of confiscation or forfeiture. During the pendency of the case in the Regional Trial Court, no property, or income derived therefrom, which may be confiscated and forfeited, shall be disposed, alienated or transferred and the same shall be in custodia legis and no bond shall be admitted for the release of the same. The proceeds of any sale or disposition of any property confiscated or forfeited under this Section shall be used to pay all proper expenses incurred in the proceedings for the confiscation, forfeiture, custody and maintenance of the property pending disposition, as well as expenses for publication and court costs. The proceeds in

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excess of the above expenses shall accrue to the Board to be used in its campaign against illegal drugs.

Sec. 84. Powers and Duties of the PDEA. – The PDEA shall: xxx (g) Recommend to the DOJ the forfeiture of properties and other assets of persons and/or corporations found to be violating the provisions of this Act and in accordance with the pertinent provisions of the Anti-Money-Laundering Act of 2001; xxx 2016 Revised Implementing Rules and Regulations of RA No. 9160, or the Anti-Money Laundering Act, as amended.

B. Asset Forfeiture in Money Laundering Cases. - Where there is conviction for money

laundering, the court shall issue a judgment of forfeiture in favor of the Government of the Philippines with respect to the monetary instrument or property found to be proceeds of an unlawful activity.

C.

Claim on Forfeited Assets. - Where the court has issued an order of forfeiture of the monetary instrument or property in a criminal prosecution for any money laundering offense, the offender or any other person claiming an interest therein may apply, by verified petition, for a declaration that the same legitimately belongs to him and for segregation or exclusion of the monetary instrument or property corresponding thereto. The verified petition shall be filed with the court which rendered the judgment of forfeiture, within fifteen (15) days from the date of the finality of the order of forfeiture, in default of which the said order shall become final and executory. This provision shall also apply in civil forfeiture. D. Payment in Lieu of Forfeiture. - Where the court has issued an order of forfeiture of the monetary instrument or property subject of a money laundering offense, and said order cannot be enforced because any particular monetary instrument or property cannot, with due diligence, be located, or it has been substantially altered, destroyed, diminished in value or otherwise rendered worthless by any act or omission, directly or indirectly, attributable to the offender, or it has been concealed, removed, converted, or otherwise transferred to prevent the same from being found or to avoid forfeiture thereof, or it is located outside the Philippines or has been placed or brought outside the jurisdiction of the court, or it has been commingled with other monetary

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instruments or property belonging to either the offender himself or a third person or entity, thereby rendering the same difficult to identify or be segregated for purposes of forfeiture, the court may, instead of enforcing the order of forfeiture of the monetary instrument or property or part thereof or interest therein, accordingly order the convicted offender to pay an amount equal to the value of said monetary instrument or property. This provision shall apply in both civil and criminal forfeiture.

f. Payment of Costs Effects 1. If the accused be convicted, the costs may be charged against him. 2. If he be acquitted, costs are de officio, i.e., each party will bear his/her own expense. Coverage 1. Fees, and 2. Indemnities, proceedings.

in

the

course

of

judicial

Expenses of litigation Costs or costs of suit are the expenses of litigation allowed and regulated by the Rules of Court to be assessed against or to be recovered by a party in litigation. Fixed or otherwise Costs may be fixed amounts already determined by law or regulations or amounts subject to a schedule. Exclusion Not allowed against the Republic of the Philippines. (Rule 142, Sec. 1).

7. Computation of Penalties a. Mitigating and Aggravating Circumstances Sec. 62. Effect of the attendance of mitigating or aggravating circumstances and of habitual delinquency. – Mitigating or aggravating

circumstances and habitual delinquency shall be taken into account for the purpose of diminishing or increasing the penalty in conformity with the following rules: 1. Aggravating circumstances which in themselves constitute a crime specially punishable by law or which are included by the

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2.

3.

4.

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law in defining a crime and prescribing the penalty therefor shall not be taken into account for the purpose of increasing the penalty. The same rule shall apply with respect to any aggravating circumstance inherent in the crime to such a degree that it must of necessity accompany the commission thereof. Aggravating or mitigating circumstances which arise from the moral attributes of the offender, or from his private relations with the offended party, or from any other personal cause, shall only serve to aggravate or mitigate the liability of the principals, accomplices and accessories as to whom such circumstances are attendant. The circumstances which consist in the material execution of the act, or in the means employed to accomplish it, shall serve to aggravate or mitigate the liability of those persons only who had knowledge of them at the time of the execution of the act or their cooperation therein.

When attendant circumstances are not appreciated in computing the penalty. (Fine SIN) 1. fines 2. penalties prescribed by special laws that do not follow the RPC nomenclature 3. indivisible penalties 4. crimes committed by negligence When prescribed penalty is single and indivisible Apply the prescribed penalty regardless of attendant circumstances. When prescribed penalty is made of two indivisible penalties 1. At least one aggravating circumstance is present—apply HIGHER penalty 2. No aggravating is present—apply LOWER penalty 3. BOTH aggravating and mitigating are present— • Aggravating exceeds mitigating—apply HIGHER penalty • Mitigating exceeds aggravating—apply LOWER penalty When prescribed penalty is made of divisible penalties 1. NO aggravating and mitigating—apply MEDIUM period 2. Aggravating circumstances, regardless of number—apply MAXIMUM period 3. One mitigating—apply MINIMUM period

4.

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Two or more mitigating—one DEGREE LOWER BOTH aggravating and mitigating are present— OFFSET each other

5.

When prescribed penalty is not made of three periods 1. Let X be 𝑋 = (𝑚𝑎𝑥𝑖𝑚𝑢𝑚 𝑜𝑓 𝑝𝑟𝑒𝑠𝑐𝑟𝑖𝑏𝑒𝑑 𝑝𝑒𝑛𝑎𝑙𝑡𝑦 − (𝑚𝑖𝑛𝑖𝑚𝑢𝑚 𝑜𝑓 𝑝𝑟𝑒𝑠𝑐𝑟𝑖𝑏𝑒𝑑 𝑝𝑒𝑛𝑎𝑙𝑡𝑦 − 1 𝑑𝑎𝑦))/3 Suppose the prescribed penalty for a felony is prision mayor, which ranges from 6 years (minimum of prescribed penalty) and 1 day to 12 years (maximum of the prescribed penalty). Then: (𝑚𝑎𝑥𝑖𝑚𝑢𝑚 𝑜𝑓 𝑝𝑟𝑒𝑠𝑐𝑟𝑖𝑏𝑒𝑑 𝑝𝑒𝑛𝑎𝑙𝑡𝑦) − (𝑚𝑖𝑛𝑖𝑚𝑢𝑚 𝑜𝑓 𝑝𝑟𝑒𝑠𝑐𝑟𝑖𝑏𝑒𝑑 𝑝𝑒𝑛𝑎𝑙𝑡𝑦 − 1 𝑑𝑎𝑦) 𝑋= 3

12 𝑦𝑒𝑎𝑟𝑠 − (6 𝑦𝑒𝑎𝑟𝑠 𝑎𝑛𝑑 1 𝑑𝑎𝑦 − 1 𝑑𝑎𝑦) 3 12𝑦𝑒𝑎𝑟𝑠 − (6 𝑦𝑒𝑎𝑟𝑠) = 3 𝑋 = 2 𝑦𝑒𝑎𝑟𝑠

=

2.

For the minima and maxima of the minimum, medium, and maximum periods, use the following formulae: Minimum

Maximum

Minimum period

𝑚𝑖𝑛𝑖𝑚𝑢𝑚 𝑜𝑓 𝑝𝑟𝑒𝑠𝑐𝑟𝑖𝑏𝑒𝑑 𝑝𝑒𝑛𝑎𝑙𝑡𝑦

𝑚𝑖𝑛𝑖𝑚𝑢𝑚 𝑜𝑓 ( ) 𝑝𝑟𝑒𝑠𝑐𝑟𝑖𝑏𝑒𝑑 𝑝𝑒𝑛𝑎𝑙𝑡𝑦 +𝑋

Medium period

𝑚𝑖𝑛𝑖𝑚𝑢𝑚 𝑜𝑓 𝑝𝑟𝑒𝑠𝑐𝑟𝑖𝑏𝑒𝑑 𝑝𝑒𝑛𝑎𝑙𝑡𝑦 +𝑋

Maximu m period

𝑚𝑖𝑛𝑖𝑚𝑢𝑚 𝑜𝑓 𝑝𝑟𝑒𝑠𝑐𝑟𝑖𝑏𝑒𝑑 𝑝𝑒𝑛𝑎𝑙𝑡𝑦 +2𝑋

𝑚𝑖𝑛𝑖𝑚𝑢𝑚 𝑜𝑓 (𝑝𝑟𝑒𝑠𝑐𝑟𝑖𝑏𝑒𝑑 𝑝𝑒𝑛𝑎𝑙𝑡𝑦) −1 𝑑𝑎𝑦 +2𝑋 𝑚𝑖𝑛𝑖𝑚𝑢𝑚 𝑜𝑓 ( 𝑝𝑟𝑒𝑠𝑐𝑟𝑖𝑏𝑒𝑑 𝑝𝑒𝑛𝑎𝑙𝑡𝑦) −1 𝑑𝑎𝑦 +3𝑋

Using the example of prision mayor, with X = 2 years as computed in Step 1, and applying these numbers to the formulae in the above table, we have: Minimum

Maximum

Minimum period

6 𝑦𝑒𝑎𝑟𝑠 𝑎𝑛𝑑 1 𝑑𝑎𝑦

6 𝑦𝑒𝑎𝑟𝑠 𝑎𝑛𝑑 1 𝑑𝑎𝑦 ( ) −1 𝑑𝑎𝑦 + 2 𝑦𝑒𝑎𝑟𝑠

Medium period

6 𝑦𝑒𝑎𝑟𝑠 𝑎𝑛𝑑 1 𝑑𝑎𝑦 +(2 𝑦𝑒𝑎𝑟𝑠)

Maximum period

6 𝑦𝑒𝑎𝑟𝑠 𝑎𝑛𝑑 1 𝑑𝑎𝑦 +2(2 𝑦𝑒𝑎𝑟𝑠)

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(

(

6 𝑦𝑒𝑎𝑟𝑠 𝑎𝑛𝑑 1 𝑑𝑎𝑦 ) −1 𝑑𝑎𝑦 + 2(2 𝑦𝑒𝑎𝑟𝑠) 6 𝑦𝑒𝑎𝑟𝑠 𝑎𝑛𝑑 1 𝑑𝑎𝑦 ) −1 𝑑𝑎𝑦 + 3(2 𝑦𝑒𝑎𝑟𝑠)

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Which can be simplified as: Minimum Minimum 6 𝑦𝑒𝑎𝑟𝑠 𝑎𝑛𝑑 1 𝑑𝑎𝑦 period Medium 8 𝑦𝑒𝑎𝑟𝑠 𝑎𝑛𝑑 1 𝑑𝑎𝑦 period Maximum 10 𝑦𝑒𝑎𝑟𝑠 𝑎𝑛𝑑 1 𝑑𝑎𝑦 period

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Maximum 8 𝑦𝑒𝑎𝑟𝑠 10 𝑦𝑒𝑎𝑟𝑠 12 𝑦𝑒𝑎𝑟𝑠

3. To check if the computation is correct, the maximum of the maximum period (as computed in Step 2) should be equal to the maximum of the prescribed penalty. Maximum of the maximum period in Step 2 = 12 years Maximum of prision mayor = 12 years See prescribed penalty and imposable penalty, distinguished. See special aggravating and qualifying circumstances.

Ladines v. People, G.R. No. 167333 (2016) Held: Homicide is punished with reclusion temporal. Taking the absence of any modifying circumstances into consideration, the RTC fixed the indeterminate penalty of 10 years and one day of prision mayor, as minimum, to 17 years and four months of the medium period of reclusion temporal, as maximum. The CA affirmed the penalty fixed by the RTC. We declare that the lower courts could not impose 17 years and four months of the medium period of reclusion temporal, which was the ceiling of the medium period of reclusion temporal, as the maximum of the indeterminate penalty without specifying the justification for so imposing. They thereby ignored that although Article 64 of the Revised Penal Code, which has set the rules "for the application of penalties which contain three periods," requires under its first rule that the courts should impose the penalty prescribed by law in the medium period should there be neither aggravating nor mitigating circumstances, its seventh rule expressly demands that "[w]ithin

the limits of each period, the courts shall determine the extent of the penalty according to the number and nature of the aggravating and mitigating circumstances and. the greater or lesser extent of the evil produced by the crime." By not specifying the justification for imposing the ceiling of the period of the imposable penalty, the fixing of the

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indeterminate sentence became arbitrary, or whimsical, or capricious. In the absence of the specification, the maximum of the indeterminate sentence for the petitioner should be the lowest of the medium period of reclusion temporal, which is 14 years, eight months and one day of reclusion temporal. No “incomplete” accident Art. 67 is impossible to impose. See discussion on incomplete justification and exemption.

Art. 67. Penalty to be imposed when not all the requisites of exemption of the fourth circumstance of Article 12 are present. . – When all the conditions required in circumstances Number 4 of Article 12 of this Code to exempt from criminal liability are not present, the penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon the culprit if he shall have been guilty of a grave felony, and arresto mayor in its minimum and medium periods, if of a less grave felony

8. Special Rules a. Complex Crime and Continuing Crimes See earlier discussion.

b. Absorption Doctrine Rebellion and other crimes Enrile v. Salazar, G.R. No. 92163 (1990) JPE was arrested on an information charging him with the crime of rebellion and murder and multiple frustrated murder. Held: Hernandez remains binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes rebellion. RA 10591, or the Comprehensive Firearms and Ammunition Act of 2013

Sec. 29. Use of Loose Firearm in the Commission of a Crime. – If the violation of this Act is in furtherance of, or incident to, or in connection with the crime of rebellion of insurrection, or attempted coup d’ etat, such

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violation shall be absorbed as an element of the crime of rebellion or insurrection, or attempted coup d’ etat. See crimes against public order.

c. Impossible Crimes Art. 59. Penalty to be imposed in case of failure to commit the crime because the means employed or the aims sought are impossible. . – When the person intending to commit an offense has already performed the acts for the execution of the same but nevertheless the crime was not produced by reason of the fact that the act intended was by its nature one of impossible accomplishment or because the means employed by such person are essentially inadequate to produce the result desired by him, the court, having in mind the social danger and the degree of criminality shown by the offender, shall impose upon him the penalty of arresto mayor or a fine from 200 to 500 pesos.

d. Crime Different from that Intended See discussion on art. 4(1) and on the mitigating circumstance of no intention to commit so grave a wrong.

e. When Offender is Below 18

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suffered shall be observed with regard to the character of the work to be performed, the time of its performance, and other incidents connected therewith, the relations of the convicts among themselves and other persons, the relief which they may receive, and their diet. The regulations shall make provision for the separation of the sexes in different institutions, or at least into different departments and also for the correction and reform of the convicts. Art. 78; must be final The judgment must be final before it can be executed, because the accused may still appeal within 15 days from its promulgation. May be waived But if the defendant has expressly waived in writing his right to appeal, the judgment becomes final and executory.

Art. 86. Reclusion perpetua, reclusion temporal, prision mayor, prision correccional and arresto mayor. – The penalties of reclusion

perpetua, reclusion temporal, prision mayor, prision correccional and arresto mayor, shall be executed and served in the places and penal establishments provided by the Administrative Code in force or which may be provided by law in the future.

Art. 87. Destierro. – Any person sentenced to

See minority as exempting circumstance and as privileged mitigating circumstance.

9. Execution and Service of

Penalties

destierro shall not be permitted to enter the place or places designated in the sentence, nor within the radius therein specified, which shall be not more than 250 and not less than 25 kilometers from the place designated. Destierro, distinguished protection order

from

permanent

Sec. 8, RA 9262. Protection Orders. – A

a. Execution of Penalties Art. 78. When and how a penalty is to be executed. –No penalty shall be executed except by virtue of a final judgment.

A penalty shall not be executed in any other form than that prescribed by law, nor with any other circumstances or incidents than those expressly authorized thereby. In addition to the provisions of the law, the special regulations prescribed for the government of the institutions in which the penalties are to be

protection order is an order issued under this act for the purpose of preventing further acts of violence against a woman or her child specified in Sec. 5 of this Act and granting other necessary relief. The relief granted under a protection order serve the purpose of safeguarding the victim from further harm, minimizing any disruption in the victim's daily life, and facilitating the opportunity and ability of the victim to independently regain control over her life. The provisions of the protection order shall be enforced by law enforcement agencies. The protection orders that may be issued under this Act are the barangay

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protection order (BPO), temporary protection order (TPO) and permanent protection order (PPO). The protection orders that may be issued under this Act shall include any, some or all of the following reliefs: xxx (d) Directing the respondent to stay away from petitioner and designated family or household member at a distance specified by the court, and to stay away from the residence, school, place of employment, or any specified place frequented by the petitioner and any designated family or household member

Sec. 16, RA 9262. Permanent Protection Orders. – Permanent Protection Order (PPO) refers to protection order issued by the court after notice and hearing.

Respondents non-appearance despite proper notice, or his lack of a lawyer, or the nonavailability of his lawyer shall not be a ground for rescheduling or postponing the hearing on the merits of the issuance of a PPO. If the respondents appears without counsel on the date of the hearing on the PPO, the court shall appoint a lawyer for the respondent and immediately proceed with the hearing. In case the respondent fails to appear despite proper notice, the court shall allow ex parte presentation of the evidence by the applicant and render judgment on the basis of the evidence presented. The court shall allow the introduction of any history of abusive conduct of a respondent even if the same was not directed against the applicant or the person for whom the applicant is made. The court shall, to the extent possible, conduct the hearing on the merits of the issuance of a PPO in one (1) day. Where the court is unable to conduct the hearing within one (1) day and the TPO issued is due to expire, the court shall continuously extend or renew the TPO for a period of thirty (30) days at each particular time until final judgment is issued. The extended or renewed TPO may be modified by the court as may be necessary or applicable to address the needs of the applicant. The court may grant any, some or all of the reliefs specified in Sec. 8 hereof in a PPO. A PPO shall be effective until revoked by a court upon application of the person in whose favor the order was issued. The court shall ensure immediate personal service of the PPO on respondent.

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The court shall not deny the issuance of protection order on the basis of the lapse of time between the act of violence and the filing of the application. Regardless of the conviction or acquittal of the respondent, the Court must determine whether or not the PPO shall become final. Even in a dismissal, a PPO shall be granted as long as there is no clear showing that the act from which the order might arise did not exist.

Art. 88. Arresto menor. – The penalty of arresto

menor shall be served in the municipal jail, or in the house of the defendant himself under the surveillance of an officer of the law, when the court so provides in its decision, taking into consideration the health of the offender and other reasons which may seem satisfactory to it.

b. Effects of Probation Law [PD 986, as amended by RA 10707] Llamado v. CA, G.R. No. 99032 (1989):

Turning to petitioner's invocation of "liberal interpretation" of penal statutes, we note at the outset that the Probation Law is not a penal statute. We, however, understand petitioner's argument to be really that any statutory language that appears to favor the accused in a criminal case should be given a "liberal interpretation." Courts, however, have no authority to invoke "liberal interpretation' or "the spirit of the law" where the words of the statute themselves, and as illuminated by the history of that statute, leave no room for doubt or interpretation. DEFINITION OF TERMS [SEC. 3] Probation A disposition under which a defendant, after conviction and sentence, is released subject to conditions imposed by the court and to the supervision of a probation officer. Probationer A person placed on probation Probation officer One who investigates for the court a referral for probation or supervises a probationer or both.

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PURPOSE [SEC 2.] 1. Promote the correction and rehabilitation of an offender by providing him with individualized treatment 2. Provide an opportunity for the reformation of a penitent offender which might be less probable if he were to serve a prison sentence 3. Prevent the commission of offenses

Office of the Court Administrator v. Librado, AM P-94-1089 (1996): Unlike pardon, probation does not obliterate the crime of which the person under probation has been convicted. Note: Probation does not extinguish civil liability. GRANT, MANNER, AND CONDITIONS [SEC. 4] Sec. 4. Grant of Probation. – Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant for a probationable penalty and upon application by said defendant within the period for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best. No application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction: Provided, That when a judgment of conviction imposing a non-probationable penalty is appealed or reviewed, and such judgment is modified through the imposition of a probationable penalty, the defendant shall be allowed to apply for probation based on the modified decision before such decision becomes final. The application for probation based on the modified decision shall be filed in the trial court where the judgment of conviction imposing a non-probationable penalty was rendered, or in the trial court where such case has since been re-raffled. In a case involving several defendants where some have taken further appeal, the other defendants may apply for probation by submitting a written application and attaching thereto a certified true copy of the judgment of conviction. The trial court shall, upon receipt of the application filed, suspend the execution of the sentence imposed in the judgment. This notwithstanding, the accused shall lose the benefit of probation should he seek a review of

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the modified decision which already imposes a probationable penalty. Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. The filing of the application shall be deemed a waiver of the right to appeal. An order granting or denying probation shall not be appealable. The Dimakuta doctrine. Note that the Dimakuta decision was issued on October 2015, but RA10707—which amended the Probation Law—was signed into law on November 2015.

Dimakuta v. People, G.R. No. 206513 (2015)

Held: It must be categorically stated that such appeal must be limited to the following grounds: 1. When the appeal is merely intended for the correction of the penalty imposed by the lower court, which when corrected would entitle the accused to apply for probation; and 2. When the appeal is merely intended to review the crime for which the accused was convicted and that the accused should only be liable to the lesser offense which is necessarily included in the crime for which he was originally convicted and the proper penalty imposable is within the probationable period. In addition, before an appeal is filed based on the grounds enumerated above, the accused should first file a motion for reconsideration of the decision of the trial court anchored on the abovestated grounds and manifest his intent to apply for probation if the motion is granted. The motion for reconsideration will give the trial court an opportunity to review and rectify any errors in its judgment, while the manifestation of the accused will immediately show that he is agreeable to the judgment of conviction and does not intend to appeal from it, but he only seeks a review of the crime and/or penalty imposed, so that in the event that the penalty will be modified within the probationable limit, he will immediately apply for probation. Without such motion for reconsideration, the notice of appeal should be denied outright. The notice of appeal should contain the following averments: 1. that an earlier motion for reconsideration was filed but was denied by the trial court;

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2.

3.

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that the appeal is only for reviewing the penalty imposed by the lower court or the conviction should only be for a lesser crime necessarily included in the crime charged in the information; and that the accused-appellant is not seeking acquittal of the conviction.

On the other hand, probation should not be granted to the accused in the following instances: 1. When the accused is convicted by the trial court of a crime where the penalty imposed is within the probationable period or a fine, and the accused files a notice of appeal; and 2. When the accused files a notice of appeal which puts the merits of his conviction in issue, even if there is an alternative prayer for the correction of the penalty imposed by the trial court or for a conviction to a lesser crime, which is necessarily included in the crime in which he was convicted where the penalty is within the probationable period. Conditions Sec. 10 lists conditions of the probation. The two conditions quoted below are mandatory conditions; the rest in sec. 10 are discretionary conditions. The conditions enumerated under Sec. 10 of the Probation Law are not exhaustive. Courts are allowed to impose practically any term it chooses, the only limitation being that it does not jeopardize the constitutional rights of the accused. After all, Sec. 4 states that “the trial court may… place the defendant on probation for such period and upon such terms and conditions as it may deem best.” [Salgado v. CA, G.R. No. 89606 (1990)]

Sec. 10. Conditions of Probation. – Every probation order issued by the court shall contain conditions requiring that the probationer shall: a. present himself to the probation officer designated to undertake his supervision at such place as may be specified in the order within seventy-two hours from receipt of said order; b. report to the probation officer at least once a month at such time and place as specified by said officer.

CRITERIA FOR PLACING OFFENDER UNDER PROBATION [SEC. 8] Criteria The following should be considered in deciding to place an offender under probation: [AM CHEAP] 1. Available institutional and community resources

2. 3. 4. 5. 6.

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Mental condition of the offender Character, Antecedents, Environment, Physical condition of the offender

May be extended to children in conflict with the law

Sec. 42. Probation as an Alternative to Imprisonment. - The court may, after it shall

have convicted and sentenced a child in conflict with the law, and upon application at any time, place the child on probation in lieu of service of his/her sentence taking into account the best interest of the child. For this purpose, Section 4 of Presidential Decree No. 968, otherwise known as the "Probation Law of 1976", is hereby amended accordingly. Reasons for denying probation Sec. 8 – x x x a. the offender is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or b. there is undue risk that during the period of probation the offender will commit another crime; or c. probation will depreciate the seriousness of the offense committed. THOSE DISQUALIFIED FROM PROBATION Sec. 9. Disqualified Offenders. — The benefits of this Decree shall not be extended to those: a. sentenced to serve a maximum term of imprisonment of more than six (6) years; b. convicted of any crime against the national security; c. who have previously been convicted by final judgment of an offense punished by imprisonment of more than six (6) months and one (1) day and/or a fine of more than one thousand pesos (P1,000.00); d. who have been once on probation under the provisions of this Decree; and e. who are already serving sentence at the time the substantive provisions of this Decree became applicable pursuant to Section 33 hereof. [Probation Law, as amended by RA 10707]

Sec. 24. Non-Applicability of the Probation Law for Drug Traffickers and Pushers. – Any person convicted for drug trafficking or pushing

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under this Act, regardless of the penalty imposed by the Court, cannot avail of the privilege granted by the Probation Law or Presidential Decree No. 968, as amended. [Comprehensive Dangerous Drugs Act of 2002] PERIOD OF PROBATION [SEC. 14] When sentenced to Probation shall not imprisonment of not exceed 2 years more than 1 year When sentenced to Shall not exceed 6 years more than 1 year When sentenced to a Shall be twice the total fine and made to suffer days of subsidiary subsidiary imprisonment imprisonment ARREST OF PROBATION [SEC. 15]

Sec. 15. Arrest of Probationer; Subsequent Disposition.- At any time during probation, the

court may issue a warrant for the arrest of a probationer for any serious violation of the conditions of the pardon. The probationer, once arrested and detained, shall immediately be brought before the court for a hearing of the violation charged. The defendant may be admitted to bail pending such hearing. In such case, the provisions regarding release on bail of persons charged with a crime shall be applicable to probationers arrested under this provision. In the hearing, which shall be summary in nature, the probationer shall have the right to be informed of the violation charged and to adduce evidence in his favor. The court shall not be bound by the technical rules of evidence but may inform itself of all facts which are material and relevant to ascertain the veracity of the charge. The State shall be represented by a prosecuting officer in any contested hearing. If the violation is established, the court may revoke or continue his probation and modify the conditions thereof. If revoked, the court shall order the probationer to serve the sentence originally imposed. An order revoking the grant of probation or modifying the terms and conditions thereof shall not be appealable. TERMINATION OF PROBATION [SEC. 16]

Sec. 16. Termination of Probation. — After the

period of probation and upon consideration of the report and recommendation of the probation officer, the court may order the final discharge of the probationer upon finding that he has fulfilled

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the terms and conditions of his probation and thereupon the case is deemed terminated. The final discharge of the probationer shall operate to restore to him all civil rights lost or suspended as a result of his conviction and to totally extinguish his criminal liability as to the offense for which probation was granted. The probationer and the probation officer shall each be furnished with a copy of such order. Termination of period not the same as expiration of probation period Probation is not coterminous with its period. There must first be issued by the court, an order of final discharge based on the report and recommendation of the probation officer. Only from such issuance can the case of the probationer be deemed terminated. [Bala v. Martinez (1990)]

c. Juvenile Justice and Welfare Act (RA 9344, as amended) Development of a comprehensive juvenile intervention program per LGU 1. A comprehensive juvenile intervention program covering at least a 3-year period shall be instituted in LGUs from the barangay to the provincial level. 2. The LGUs shall set aside an amount necessary to implement their respective juvenile intervention programs in their annual budget. 3. The LGUs, in coordination with the LCPC, shall call on all sectors concerned to participate in the planning process and implementation of juvenile intervention programs. The implementation of the comprehensive juvenile intervention program shall be reviewed and assessed annually by the LGUs in coordination with the LCPC. Results of the assessment shall be submitted by the provincial and city governments to the JJWC not later than March 30 of every year. [Sec. 18, RA9344] Community-based programs on juvenile justice and welfare Community-based programs on juvenile justice and welfare shall be instituted by the LGUs through the LCPC, school, youth organizations and other concerned agencies. The LGUs shall provide community –based services which respond to the special needs, problems, interests and concerns of children and which offer

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appropriate counselling and guidance to them and their families. These programs shall consist of three levels 1. Primary intervention includes general measures to promote social justice and equal opportunity, which tackle perceived root causes of offending; 2. Secondary intervention includes measures to assist children at risk; and 3. Tertiary intervention includes measures to avoid unnecessary contact with the formal justice system and other measures to prevent reoffending. [Sec. 19, RA 9344] Diversion Refers to an alternative, child-appropriate process of determining the responsibility and treatment of a child in conflict with the law on the basis of his/her social, cultural, economic, psychological, or educational background without resulting to formal court proceedings. Diversion program Refers to the program that the child in conflict with the law is required to undergo after he/she is found responsible for an offense without resorting to formal court proceedings. [Sec. 4(j), RA 9344] System of diversion [Sec. 23, RA 9344] Children in conflict with the law shall undergo diversion programs without undergoing court proceedings subject to the conditions herein provided: 1. Where the imposable penalty for the crime committed is not more than six (6) years imprisonment • The law enforcement officer or Punong Barangay, with the assistance of the local social welfare and development officer or other members of the LCPC, shall conduct mediation, family conferencing and conciliation • Where appropriate, indigenous modes of conflict resolution are adopted in accordance with the best interest of the child with a view to accomplishing the objectives of restorative justice and the formulation of a diversion program. • The child and his/her family shall be present in these activities. 2. In victimless crimes where the imposable penalty is not more than six (6) years imprisonment • The local social welfare and development officer shall meet with the child and his/her parents or guardians for the development of

3.

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the appropriate diversion and rehabilitation program, in coordination with the BCPC; Where the imposable penalty for the crime committed exceeds six (6) years imprisonment Diversion measures may be resorted to only by the court.

Treatment of child below age of responsibility [Sec. 20, RA 9344] If it has been determined that the child taken into custody is fifteen (15) years old or below, the authority which will have an initial contact with the child has the duty to: 1. Immediately release the child to the custody of his/her parents or guardian, or in the absence thereof, the child’s nearest relative. 2. Shall give notice to the local social welfare and development officer who will determine the appropriate programs in consultation with the child and to the person having custody over the child. 3. If the parents, guardians or nearest relatives cannot be located, or if they refuse to take custody, the child may be released to any of the following: a. a duly registered nongovernmental or religious organization; b. a barangay official or a member of the Barangay Council for the Protection of Children (BCPC); c. a local social welfare and development officer; or when and where appropriate, the DSWD. If the child referred to herein has been found by the Local Social Welfare and Development Office to be abandoned, neglected or abused by his parents, or in the event that the parents will not comply with the prevention program, the proper petition for involuntary commitment shall be filed by the DSWD or the Local Social Welfare and Development Office pursuant to Presidential Decree No. 603. DETERMINATION OF AGE [SEC. 7, RA 9344] Presumption There is a presumption of minority. S/he shall enjoy all the rights of a child in conflict with the law until s/he is proven to be 18 years old or older.

People v. Sarcia, G.R. No. 169641 (2009):

When accused appellant testified on March 14, 2002, he admitted that he was 24 years old, which means that in 1996, he was 18 years of age. As

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found by the trial court, the rape incident could have taken place “in any month and date in the year 1996.” Since the prosecution was not able to prove the exact date and time when the rape was committed, it is not certain that the crime of rape was committed on or after he reached 18 years of age in 1996. In assessing the attendance of the mitigating circumstance of minority, all doubts should be resolved in favor of the accused, it being more beneficial to the latter. In fact, in several cases, this Court has appreciated this circumstance on the basis of a lone declaration of the accused regarding his age. Proof The age of the child shall be determined according to the rules established by Section 5 of RA 9344: 1. Best evidence is an original or certified true copy of certificate of live birth 2. In its absence, similar authentic documents such as baptismal certificates and school records showing the date of birth may be used 3. In the absence of documents under 1 and 2 due to loss, destruction or unavailability, the testimony of the child, a member of the family related by affinity or consanguinity, of other persons, the physical appearance of the child, or other relevant evidence shall suffice. The person alleging the age of the child in conflict with the law has the burden to prove such age. In all cases involving a child, the court shall make a categorical finding as to the age of the child. [Section 6] Offenses not applicable to children under Sec. 58 of RA 9344 Persons below eighteen (18) years of age shall be exempt from prosecution for the crime of: 1. vagrancy and prostitution under Section 202 of the Revised Penal Code, 2. mendicancy under Presidential Decree No. 1563, and 3. sniffing of rugby under Presidential Decree No. 1619, Such prosecution being inconsistent with the United Nations Convention on the Rights of the Child. However, said persons shall undergo appropriate counseling and treatment program.

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PD 603, AS AMENDED, AND RA 9344, DISTINGUISHED. 1.

Minimum age of criminal responsibility

PD 603 Sec. 189. EXEMPT from criminal liability: 1. Child 9 years of age or under at time of commission of offense 2. 9 ≤ Age of child at time of commission of offense ≤ 15 (UNLESS s/he acted with discernment)

RA 9344 Child 15 years of age or under shall be exempt from criminal liability, regardless of whether or not s/he acted with discernment (HOWEVER: child is subject to intervention program)

2. Discernment Discernment Mental capacity to understand the difference between right and wrong as determined by the child’s appearance, attitude, comportment and behavior not only before and during the commission of the offense but also after and during the trial. It is manifested through: a. Manner of committing crime b. Conduct of the offender Discernment and intent, distinguished Intent is design, or determination to do certain things. Discernment is mental capacity to understand the difference between right and wrong. Hence a person may not intend to shoot another but may be aware of the consequences of his negligent act which may cause injury to the same person in negligently handling an air rifle. [Guevarra v. Almodovar, G.R. No. 75256 (1989] PD 603 RA 9344 Child over 9 years and under 15 years of age who acted w/ Child above 15 years discernment – court but below 18 years of shall determine age who acted with imposable penalty, discernment shall be including any civil subjected to the liability chargeable appropriate against him. proceedings in accordance with the However, instead of Act. pronouncing judgment of conviction, the court

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PD 603 may suspend all further proceedings and shall commit such minor to the custody or care of the DSWD or to any training institution operated by the government, or duly licensed agencies or any other responsible person, until he shall have reached 21 years of age or, for a shorter period as the court may deem proper. [Secs. 189 and 192]

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RA 9344

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PD 603

3. Suspension of sentence PD 603 RA 9344 No automatic Suspension of sentence suspension of sentence. is automatic. The youthful offender should apply for a Once the child under 18 suspended sentence and is found guilty of the it is discretionary on the offense charged, the court to approve the court shall determine application. The order and ascertain any civil of the court denying an liability. application for suspension of sentence However, instead of shall not be appealable. pronouncing the (Sec. judgment of conviction, 193) the court shall place the child in conflict with law under suspended sentence, without need of application. Suspension of sentence shall be applied even if the juvenile is already 18 years of age or more at the time of the pronouncement of his/her guilt. (Sec. 38, RA 9344) The suspension of sentence lasts only until the child in conflict with law reaches the maximum age of 21.

RA 9344 considering the various circumstances of the child, the court shall impose the appropriate disposition measures as provided in the Supreme Court Rule on Juveniles in Conflict with the Law. (Sec. 38)

If the accused is already beyond 21 at the time of his conviction Suspension of sentence no longer avails when the age of the accused is more than 21 years old by the time of the pronouncement of his guilt. The court must render judgment. He nonetheless may avail of sec. 51 of RA 9344. [People v Gambao, G.R. No. 172705 (2013)] Discharge of the Child in Conflict with the Law [sec. 39, RA 9344] Upon the recommendation of the social worker who has custody of the child, the court shall dismiss the case against the child whose sentence has been suspended and against whom disposition measures have been issued, and shall order the final discharge of the child if it finds that the objective of the disposition measures have been fulfilled. The discharge of the child in conflict with the law shall not affect the civil liability resulting from the commission of the offense, which shall be enforced in accordance with law. Return of the Child in Conflict with the Law to Court [sec. 40, RA 9344] If the court finds that the objective of the disposition measures imposed upon the child in conflict with the law have not been fulfilled, or if the child in conflict with the law has willfully failed to comply with the conditions of his/her disposition or rehabilitation program, the child in conflict with the law shall be brought before the court for execution of judgment. Agricultural Camps and other Training Facilities [Sec. 51, RA 9344] A child in conflict with the law may, after conviction and upon order of the court, be made to serve his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and other training facilities that may be established, maintained, supervised and controlled by the BUCOR, in coordination with the DSWD.

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People v. Gamboa, supra.: As regards the

appellant’s possible confinement in an agricultural camp or other training facility in accordance with Section 51 of R.A. 9344, this Court held in People v. Jacinto that the age of the child in conflict with the law at the time of the promulgation of the judgment is not material. What matters is that the offender committed the offense when he/she was still of tender age.

10. Suspension in Case of

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Payment of his civil or pecuniary liabilities shall not be suspended.

b. Minors See minority as exempting circumstance and as privileged mitigating circumstance. Take note of the definition of “diversion.” Comprehensive Dangerous Drugs Act of 2002.

Sec. 66. Suspension of Sentence of a FirstTime Minor Offender. – An accused who is over

Insanity or Minority

a. Insane Art. 79. Suspension of the execution and service of the penalties in case of insanity. -

When a convict shall become insane or an imbecile after final sentence has been pronounced, the execution of said sentence shall be suspended only with regard to the personal penalty, the provisions of the second paragraph of circumstance number 1 of Article 12 being observed in the corresponding cases. If at any time the convict shall recover his reason, his sentence shall be executed, unless the penalty shall have prescribed in accordance with the provisions of this Code. The respective provisions of this section shall also be observed if the insanity or imbecility occurs while the convict is serving his sentence. When an accused becomes insane At the time of the He is exempt from commission of the criminal liability. crime The Court shall suspend the proceedings and order At the time of the trial his confinement in a hospital until he recovers his reason. Execution is suspended with regard to the personal penalty only. If he recovers his At the time of final reason, his sentence judgment or while shall be executed, serving sentence unless the penalty has prescribed.

fifteen (15) years of age at the time of the commission of the offense mentioned in Section 11 of this Act, but not more than eighteen (18) years of age at the time when judgment should have been promulgated after having been found guilty of said offense, may be given the benefits of a suspended sentence, subject to the following conditions: a. He/she has not been previously convicted of violating any provision of this Act, or of the Dangerous Drugs Act of 1972, as amended; or of the Revised Penal Code; or of any special penal laws; b. He/she has not been previously committed to a Center or to the care of a DOH-accredited physician; and c. The Board favorably recommends that his/her sentence be suspended. While under suspended sentence, he/she shall be under the supervision and rehabilitative surveillance of the Board, under such conditions that the court may impose for a period ranging from six (6) months to eighteen (18) months. Upon recommendation of the Board, the court may commit the accused under suspended sentence to a Center, or to the care of a DOHaccredited physician for at least six (6) months, with after-care and follow-up program for not more than eighteen (18) months. In the case of minors under fifteen (15) years of age at the time of the commission of any offense penalized under this Act, Article 192 of Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code, as amended by Presidential Decree No. 1179 shall apply, without prejudice to the application of the provisions of this Section.

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Sec. 67. Discharge After Compliance with Conditions of Suspended Sentence of a FirstTime Minor Offender. – If the accused first time minor offender under suspended sentence complies with the applicable rules and regulations of the Board, including confinement in a Center, the court, upon a favorable recommendation of the Board for the final discharge of the accused, shall discharge the accused and dismiss all proceedings.

Upon the dismissal of the proceedings against the accused, the court shall enter an order to expunge all official records, other than the confidential record to be retained by the DOJ relating to the case. Such an order, which shall be kept confidential, shall restore the accused to his/her status prior to the case. He/she shall not be held thereafter to be guilty of perjury or of concealment or misrepresentation by reason of his/her failure to acknowledge the case or recite any fact related thereto in response to any inquiry made of him for any purpose.

Sec. 68. Privilege of Suspended Sentence to be Availed of Only Once by a First-Time Minor Offender. – The privilege of suspended sentence

shall be availed of only once by an accused drug dependent who is a first-time offender over fifteen (15) years of age at the time of the commission of the violation of Section 15 of this Act but not more than eighteen (18) years of age at the time when judgment should have been promulgated.

Sec. 69. Promulgation of Sentence for FirstTime Minor Offender. – If the accused first-time minor offender violates any of the conditions of his/her suspended sentence, the applicable rules and regulations of the Board exercising supervision and rehabilitative surveillance over him, including the rules and regulations of the Center should confinement be required, the court shall pronounce judgment of conviction and he/she shall serve sentence as any other convicted person.

Sec. 70. Probation or Community Service for a First-Time Minor Offender in Lieu of Imprisonment. – Upon promulgation of the

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supervision and rehabilitative surveillance shall be undertaken by the Board through the DOH in coordination with the Board of Pardons and Parole and the Probation Administration. Upon compliance with the conditions of the probation, the Board shall submit a written report to the court recommending termination of probation and a final discharge of the probationer, whereupon the court shall issue such an order. The community service shall be complied with under conditions, time and place as may be determined by the court in its discretion and upon the recommendation of the Board and shall apply only to violators of Section 15 of this Act. The completion of the community service shall be under the supervision and rehabilitative surveillance of the Board during the period required by the court. Thereafter, the Board shall render a report on the manner of compliance of said community service. The court in its discretion may require extension of the community service or order a final discharge. In both cases, the judicial records shall be covered by the provisions of Sections 60 and 64 of this Act. If the sentence promulgated by the court requires imprisonment, the period spent in the Center by the accused during the suspended sentence period shall be deducted from the sentence to be served.

Sec. 71. Records to be kept by the Department of Justice. – The DOJ shall keep a confidential

record of the proceedings on suspension of sentence and shall not be used for any purpose other than to determine whether or not a person accused under this Act is a first-time minor offender

Sec. 98. Limited Applicability of the Revised Penal Code. – Notwithstanding any law, rule or

regulation to the contrary, the provisions of the Revised Penal Code (Act No. 3814), as amended, shall not apply to the provisions of this Act, except in the case of minor offenders. Where the offender is a minor, the penalty for acts punishable by life imprisonment to death provided herein shall be reclusion perpetua to death.

sentence, the court may, in its discretion, place the accused under probation, even if the sentence provided under this Act is higher than that provided under existing law on probation, or impose community service in lieu of imprisonment. In case of probation, the

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E.Criminal and Civil Liabilities

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Prescription of crimes

Art.

90. Prescription of crime. - Crimes punishable by death, reclusion perpetua or reclusion temporal shall prescribe in twenty years.

1. Extinction of Criminal

Liabilities

Crimes punishable by other afflictive penalties shall prescribe in fifteen years.

a. Total Extinction 1. By Prescription of Crime Definition The forfeiture or loss of the right of the State to prosecute the offender, after the lapse of a certain period of time.

Those punishable by a correctional penalty shall prescribe in ten years; with the exception of those punishable by arresto mayor, which shall prescribe in five years. The crime of libel or other similar offenses shall prescribe in one year.

General Rule: Prescription of the crime begins on the day the crime was committed.

The crime of oral defamation and slander by deed shall prescribe in six months.

Exception: The "blameless ignorance" doctrine, incorporated in Section 2 of Act No. 3326, under which "the statute of limitations runs only upon discovery of the fact of the invasion of a right which will support a cause of action. The courts would decline to apply the statute of limitations where the plaintiff does not know or has no reasonable means of knowing the existence of a cause of action." xxx Thus, we held in a catena of cases, that if the violation of the special law was not known at the time of its commission, the prescription begins to run only from the discovery thereof, i.e., discovery of the unlawful nature of the constitutive act or acts. [Presidential AdHoc Fact Finding Committee on Behest Loans v. Ombudsman Desierto, G. R. No. 130140 (2011)]

Light offenses prescribe in two months.

Recebido v. People, G.R. No. 141931 (2000):

While the defense of prescription of the crime was raised only during the motion for reconsideration of the decision of the Court of Appeals, there was no waiver of the defense. Under the Rules of Court, the failure of the accused to assert the ground of extinction of the offense, inter alia, in a motion to quash shall not be deemed a waiver of such ground. The reason is that by prescription, the State or the People loses the right to prosecute the crime or to demand the service of the penalty imposed. Accordingly, prescription, although not invoked in the trial, may, as in this case, be invoked on appeal. Hence, the failure to raise this defense in the motion to quash the information does not give rise to the waiver of the petitioner-accused to raise the same anytime thereafter including during appeal.

When the penalty fixed by law is a compound one, the highest penalty shall be made the basis of the application of the rules contained in the first, second and third paragraphs of this article. (As amended by RA 4661, approved June 19, 1966). Crime punishable by fines Fine is afflictive 15 years Fine is correctional 10 years Fine is light 2 months Notes: a. Subsidiary penalty for nonpayment not considered in determining the period b. When fine is an alternative penalty higher than the other penalty which is by imprisonment, prescription of the crime is based on the fine. Prescription for special laws and municipal ordinances a. 12 years = offenses punished by imprisonment for six years and more b. 8 years = offenses punished by imprisonment of two years and more, but less than 6 years c. 5 years = offenses under International Revenue Law d. 4 years = offenses punished by imprisonment for more than one month, but less than two years e. 1 year = offenses punished by a fine OR imprisonment of not more than 1 month f. 2 months = violations of municipal ordinances

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g.

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2 months = violations f regulations or conditions of certificate of convenience by the Public Service Commission

Note: Not applicable where the special law provides for its own prescriptive period. Computation of prescription of offenses (Art. 91) a. Commences to run from the day on which the crime is discovered by the offended party, the authorities or their agents. b. Interrupted by the filing of complaint or information c. It shall commence to run again when such proceedings terminate without the accused being convicted or acquitted, or unjustifiably stopped for any reason not imputable to the accused. d. (Note: Termination must be FINAL as to amount to a jeopardy that would bar a subsequent prosecution.) e. The term of prescription shall not run when the offender is absent from the Philippine archipelago. f. For continuing crimes, prescriptive period cannot begin to run because the crime does not end.

2. By Prescription of Penalty Definition The loss or forfeiture of the right of the government to execute the final sentence after the lapse of a certain period of time. Distinguished from prescription of crime Prescription of crime is the forfeiture to prosecute a crime; prescription of penalty is the forfeiture to execute a sentence. Prescriptive periods

Death and reclusion perpetua Other afflictive penalties Correctional penalties Note: If arresto mayor Light penalties

20 years 15 years 10 years 5 years 1 year

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d. The penalty has prescribed because of the lapse of time from the date of the evasion of service of the sentence by the convict.

Del Castillo v. Torrecampo, G.R. No. 139033

(2002): "Escape" in legal parlance and for purposes of Articles 93 and 157 of the RPC means unlawful departure of prisoner from the limits of his custody. Clearly, one who has not been committed to prison cannot be said to have escaped therefrom. When commenced Period commences to run from the date when the culprit evaded the service of sentence. When interrupted a. The convict gives himself up. b. The convict is captured. c. The convict goes to a foreign country with which the Philippines has no extradition treaty. d. The convict commits any crime before the expiration of the period of prescription. Question: What happens in cases where our government has extradition treaty with another country but the crime is not included in the treaty? Answer: It would interrupt the running of the prescriptive period. Question: What is the effect of the acceptance of the convict of a conditional pardon? Answer: It would interrupt the running of the prescriptive period. Question: What happens if the culprit is captured but he evades again the service of his sentence? Answer: The period of prescription that ran during the evasion is not forfeited. The period of prescription that has run in his favor should be taken into account.

3. By The Death of The Convict

Computation of prescription. [Art. 93] a. Penalty is imposed by final judgment b. Convict evaded service of sentence by escaping during the term of his sentence c. The convict who has escaped from prison has not given himself up, or been captured, or gone to a foreign country with which we have no extradition treaty, or committed another crime

Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the civil liability based solely thereon. However, the claim of civil liability survives notwithstanding the death of the accused, if the same may also be predicated on a source of obligation other than delict, such as law, contracts, quasi-contracts and quasidelicts. [People v. Bayotas, G.R. No. 102007 (1994)]

4. By Service of Sentence

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5. By Amnesty An act of the sovereign power granting oblivion or general pardon for a past offense. Erases not only the conviction but the crime itself. It is granted to classes of persons or communities who may be guilty of political offenses, generally before or after the institution of the criminal prosecution and sometimes after conviction. [People v. Casido , G.R. No. 116512 (1997)] Amnesty and absolute pardon, distinguished Amnesty Absolute pardon Blanket pardon to classes of persons Includes any crime and guilty of political is exercised individually offenses May still be exercised The person is already before trial or convicted investigation Looks forward. He is relieved from the Looks backward. It is consequences of the as if he has committed offense, but rights are no offense. not restored unless explicitly provided by the terms of the pardon. Private act of the Public act which the President and must be court shall take judicial pleaded and proved by notice of the person pardoned Valid if given either Valid only when there before or after final is final judgment judgment Recidivism An offender who was convicted of rebellion, given an amnesty, and who subsequently rebelled and was convicted again is not a recidivist. He is not a recidivist because the amnesty granted to him erased not only the conviction but also the effects of the conviction itself. Suppose, instead of amnesty, what was given was absolute pardon, then years later, the offender was again captured and charged for rebellion, he was convicted, is he a recidivist?

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such that there is no more service of sentence to be executed. The pardon then shall be understood as intended to erase the effects of the conviction.

6. By Absolute Pardon It is an act of grace, proceeding from the power entrusted with the execution of the laws. It exempts the individual from the penalty of the crime he has committed.

Monsanto v. Factoran, G.R. No. 78239 (1989):

1. Absolute pardon does not ipso facto entitle the convict to reinstatement to the public office forfeited by reason of his conviction. 2. Although pardon restores his eligibility for appointment to that office, the pardoned convict must reapply for a new appointment. Effects of pardon

Art. 36. Pardon; its effect. - A pardon shall not work the restoration of the right to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence. Limitations on pardoning power 1. That the power can be exercised only after conviction. Thus in applying for pardon, the convict must not appeal the judgment of conviction or the appeal must be abandoned. 2.

That such power does not extend to cases of impeachment. [Cristobal v. Labrador, G.R. No. 47941 (1940)]

Legislature cannot limit pardoning power The pardoning power of the President cannot be limited by legislative action. Article 36-41 only operates as a procedural proscription. [Risos-Vidal v. COMELEC, G.R. No. 206666 (2015)]

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7. By the marriage of the offended woman and the offender in the crimes of rape, abduction, seduction and acts of lasciviousness (art. 344) People v. De Guzman, G.R. No. 185843 (2010):

In relation to Article 266-C of the RPC, Article 89 of the same Code reads: ART. 89. How criminal liability is totally extinguished. Criminal liability is totally extinguished: xxxx 7. By the marriage of the offended woman, as provided in Article 344 of this Code. Article 344 of the same Code also provides ART. 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape, and acts of lasciviousness. x x x. 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. x x x. On several occasions, we applied these provisions to marriages contracted between the offender and the offended party in the crime of rape, as well as in the crime of abuse of chastity, to totally extinguish the criminal liability of and the corresponding penalty that may have been imposed upon those found guilty of the felony. Parenthetically, we would like to mention here that prior to the case at bar, the last case bearing similar circumstances was decided by this Court in 1974, or around 36 years ago. Based on the documents, including copies of pictures taken after the ceremony and attached to the motion, we find the marriage between appellant and private complainant to have been contracted validly, legally, and in good faith, as an expression of their mutual love for each other and their desire to establish a family of their own. Given public policy considerations of respect for the sanctity of marriage and the highest regard for the solidarity of the family, we must accord appellant the full benefits of Article 89, in relation to Article 344 and Article 266-C of the RPC. Pardon of offended party in offenses other than those in art. 344 Only civil liability is extinguished. A crime committed is an offense against the State. Only the Chief Executive can pardon the offenders.

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Art. 23. Effect of pardon by the offended party. - A pardon of the offended party does not

extinguish criminal action except as provided in Article 344 of this Code; but civil liability with regard to the interest of the injured party is extinguished by his express waiver.

b. Partial Extinction 1. By Conditional Pardon (Art. 95) Conditions If delivered and accepted, it is a contract between the executive and the convict that the former will release the latter upon compliance with the condition. One usual condition is “not again violate any of the penal laws of the country”. Where are conditions stipulated Pardon itself must explicitly impose. A “whereas” in the preamble of the pardon stating that “Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office” does not make the pardon conditional. [Risos-Vidal v. COMELEC, supra.]

Art. 95. Obligation incurred by person granted conditional pardon. - Any person who has been

granted conditional pardon shall incur the obligation of complying strictly with the conditions imposed therein otherwise, his noncompliance with any of the conditions specified shall result in the revocation of the pardon and the provisions of Article 159 shall be applied to him.

2. By Commutation Of Sentence (Art. 96) Art. 96. Effect of commutation of sentence. The commutation of the original sentence for another of a different length and nature shall have the legal effect of substituting the latter in the place of the former.

3. For Good Conduct, Allowances which The Culprit May Earn while He is Serving Sentence (Art. 97) Art. 97. Allowance for good conduct. - The

good conduct of any prisoner in any penal institution shall entitle him to the following deductions from the period of his sentence:

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1. 2.

3.

4.

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During the first two years of his imprisonment, he shall be allowed a deduction of five days for each month of good behavior; During the third to the fifth year, inclusive, of his imprisonment, he shall be allowed a deduction of eight days for each month of good behavior; During the following years until the tenth year, inclusive, of his imprisonment, he shall be allowed a deduction of ten days for each month of good behavior; and During the eleventh and successive years of his imprisonment, he shall be allowed a deduction of fifteen days for each month of good behaviour.

4. Special Time Allowance (Arts. 98-99) Article 98. Special time allowance for loyalty. A deduction of one-fifth of the period of his sentence shall be granted to any prisoner who, having evaded the service of his sentence under the circumstances mentioned in Article 58 of this Code, gives himself up to the authorities within 48 hours following the issuance of a proclamation announcing the passing away of the calamity or catastrophe to in said article. Article 99. Who grants time allowances. Whenever lawfully justified, the Director of Prisons shall grant allowances for good conduct. Such allowances once granted shall not be revoked.

5. By Parole 6. By Probation

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and the offended party may not waive or extinguish the criminal liability the law imposes for its commission. Compromise therefore is not one of the grounds prescribed by the RPC for the extinction of criminal liability.

People v. Orje, G.R. No. 189579 (2011): AAA was the daughter of the accused. During trial, AAA presented that she earlier executed an affidavit of desistance in which she expressed desire to desist from pursuing the sham case against her father. She claims that her aunt compelled her to falsely accuse her father of rape.

Held: Courts look with disfavor at affidavits of desistance and/or retraction. Those can be easily secured from poor or ignorant witnesses, usually for monetary considerations or threats of violence. There must be other circumstances which, when coupled with the retraction or desistance, creates doubts as to the truth of the testimony of the plaintiff. In this case, there was overwhelming proof that the father did in fact rape AAA on multiple occasions.

d. Re-Election of Public Officer Ombudsman v. CA and Binay, Jr., G.R. Nos.

217126-27 (2015): The SC abandoned the condonation doctrine. The doctrine is bereft of legal basis based on the 1987 Constitution and the Local Government Code. Public office is a public trust, and the corollary requirement of accountability to the people at all times is inconsistent with the idea that his past sins can be wiped away by reelection.

2. Civil Liabilities in Criminal

Cases

c. Compromise and Affidavit of Desistance Trinidad v. Ombudsman, G.R. No. 166038 (2007): Petitioner is charged for violating the Anti-

Graft and Corrupt Practices Act for knowingly granting a license, permit, privilege, or benefit to an unqualified person. Petitioner contends that AEDC is barred from filing a criminal case against him due to the dismissal previously by the RTC of a civil case filed by AEDC. The case was dismissed upon the parties’ joint motion with a mutual quitclaim and waiver. Held: It is a firmly recognized rule that criminal liability cannot be the subject of a compromise. For a criminal case is committed against the People,

a. General Rule Relevant RPC provision

Art. 100. Civil liability of a person guilty of felony. - Every person criminally liable for a felony is also civilly liable. Basis

Chua v. CA, G.R. No. 150793 (2004)

Held: Generally, the basis of civil liability arising from crime is the fundamental postulate that every man criminally liable is also civilly liable. When a person commits a crime he offends two entities namely (1) the society in which he lives in or the

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political entity called the State whose law he has violated; and (2) the individual member of the society whose person, right, honor, chastity or property has been actually or directly injured or damaged by the same punishable act or omission. An act or omission is felonious because it is punishable by law, it gives rise to civil liability not so much because it is a crime but because it caused damage to another. Additionally, what gives rise to the civil liability is really the obligation and the moral duty of everyone to repair or make whole the damage caused to another by reason of his own act or omission, whether done intentionally or negligently. The indemnity which a person is sentenced to pay forms an integral part of the penalty imposed by law for the commission of the crime. The civil action involves the civil liability arising from the offense charged which includes restitution, reparation of the damage caused, and indemnification for consequential damages. Effect of acquittal in criminal action The court may acquit an accused on reasonable doubt and still order payment of civil damages already proved in the same case without need for a separate civil action. The reason for this is that the accused has already been accorded due process. Exception: 1. When the defendant did not act with negligence; 2. facts from which the civil action might arise do not exist (e.g., the defendant was acquitted because he was not the perpetrator of the felony). [Tolentino] Test of negligence

People v. De Los Santos, G.R. No. 131588

(2001): The test for determining whether a person is negligent in doing an act whereby injury or damage results to the person or property of another is this: Could a prudent man, in the position of the person to whom negligence is attributed, foresee harm to the person injured as a reasonable consequence of the course actually pursued? If so, the law imposes a duty on the actor to refrain from that course or to take precautions to guard against its mischievous results, and the failure to do so constitutes negligence. Reasonable foresight of harm, followed by the ignoring of the admonition born of this prevision, is always necessary before negligence can be held to exist.

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Relevant Civil Code provisions Art. 20, CC. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same.

Art. 1161, CC. Civil obligations arising from

criminal offenses shall be governed by the penal laws, subject to the provisions of article 2177, and of the pertinent provisions of Chapter 2, Preliminary Title, on Human Relations, and of Title XVIII of this Book, regulating damages.

Art. 2176, CC. Whoever by act or omission causes

damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

Art. 2177, CC. Responsibility for fault or

negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant. Also see: Rule 111, 2000 Rules of Criminal Procedure. Determination of civil liability, general rule and exception Civil liability arises from the commission of the felony. It is determined in the criminal action except: 1. the offended party waives his right to file a civil action 2. the offended party reserves his right to institute it separately, or 3. the offended party institutes the civil action prior to the criminal action.

Quinto

v. Andres, G.R. No. 155791 (2005): When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action. With the implied institution of the civil action in the criminal action, the two actions are merged into one composite proceeding, with the criminal action predominating the civil.

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Reservation of the right to file A reservation of the right to file a separate civil action only gives the party aggrieved the right to choose under which body of laws he must bring the civil action, either under the: 1. RPC – where the recovery may be defeated by proof that the acts on which the action is based do not exist, or 2. New Civil Code – where the same proof is required to preclude recovery, or proof of diligence in the selection and employment of the employee. No independent civil action Commencement of criminal action is not a condition precedent to the filing of civil action arising from a crime. However, the civil action arising from crime cannot be instituted when: (a) the criminal action has already commenced, in which case the separate civil action arising therefrom cannot be instituted until final judgment of the criminal case; or (b) if the criminal action is filed after the civil action, in which case the latter shall be suspended at whatever stage before judgment on the merits. The rule is that when the criminal action is instituted, a separate civil action cannot be instituted or if already instituted, it is to be suspended. Said rule applies only when the plaintiff in the civil action is the offended party in the criminal action and both cases arise from the same offense.

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Civil liability of parents A minor over 15 years of age who acts with discernment is not exempt from criminal liability that is why the RPC is silent as to the subsidiary liability of his parents. The particular law that governs is Art. 2180 of the Civil Code which provides, “the father and, in case of his death or incapacity, the mother is responsible for damages caused by the minor children who live in their company.” Civil liability of guardians The persons having the insane or minor under their legal authority or control are primarily liable to pay the civil liability. If it is proven that there was no fault or negligence on their part, those exempted from the crime shall respond with their own property not exempt from execution.

2. State of necessity There is no civil liability in justifying circumstances except in par. 4 of Art. 11 wherein the person who was benefited by the act which causes damage to another is the one civilly liable.

3. Irresistible force and uncontrollable fear The persons using violence or causing the fear are primarily liable. If there be no such persons, those doing the act shall be liable secondarily.

4. Innkeepers and similar persons

Exceptions

Independent civil actions may be filed for 1. Violations of fundamental rights (Art. 32) 2. Defamation, fraud and physical injuries (Art. 33) 3. Failure or refusal of a member of the police force to render aid or protection to any person in case of danger to life or property (Art. 34)

b. Special Cases 1. Insanity, imbecility, and those over 9 and below 15 General Rule: Exemption from criminal liability does not include exemption from civil liability.

Exception: The only exceptions to this rule are: (a)

when the injury caused was by mere accident as provided for in Art 12, paragraph 2; and (b) when the civil liability was caused by the failure to perform an act required by law when prevented by some lawful or insuperable cause.

Art. 102. Subsidiary civil liability of innkeepers, tavernkeepers and proprietors of establishments. - In default of the persons

criminally liable, innkeepers, tavernkeepers, and any other persons or corporations shall be civilly liable for crimes committed in their establishments, in all cases where a violation of municipal ordinances or some general or special police regulation shall have been committed by them or their employees. Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or theft within their houses from guests lodging therein, or for the payment of the value thereof, provided that such guests shall have notified in advance the innkeeper himself, or the person representing him, of the deposit of such goods within the inn; and shall furthermore have followed the directions which such innkeeper or his representative may have given them with respect to the care and vigilance over such goods. No liability shall attach

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in case of robbery with violence against or intimidation of persons unless committed by the innkeeper's employees. Elements under Paragraph 1 a. That the innkeeper, tavernkeeper, or proprietor of establishment or his employee committed a violation of municipal ordinance or some general or special police regulation. b. That a crime is committed in such inn, tavern or establishment. c. That the person criminally liable is insolvent. d. When all the above elements are present, the innkeeper, tavernkeeper or any other person or corporation is civilly liable for the crime committed in his establishment. Elements under Paragraph 2 a. The guests notified in advance the innkeeper or the person representing him of the deposit of their goods within the inn or house. b. The guest followed the directions of the innkeeper or his representative with respect to the care of the vigilance over such goods. c. Such goods of the guests lodging therein were taken by robbery with force upon things or theft committed within the inn or house. When robbers are not the employees The statement “No liability shall attach in case of robbery with violence against or intimidation of persons unless committed by the innkeeper's employees” should be read together with art. 2001, NCC. If there is robbery, the management should prove that first that the robbery was done (a) with the use of arms or (b) through irresistible force before the establishment be exempted from civil liability.

Art. 2001, CC. The act of a thief or robber, who

has entered the hotel is not deemed force majeure, unless it is done with the use of arms or through an irresistible force.

5. Subsidiary Liability of Other Persons Art. 103. Subsidiary civil liability of other persons. - The subsidiary liability established in the next preceding article shall also apply to employers, teachers, persons, and corporations engaged in any kind of industry for felonies committed by their servants, pupils, workmen, apprentices, or employees in the discharge of their duties.

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Elements a. The employer, teacher, person or corporation is engaged in any kind of industry. b. Any of their servants, pupils, workmen, apprentices or employees commits a felony while in the discharge of his duties. c. The said employee is insolvent and has not satisfied his civil liability. Subsidiary liability Only arises after conviction of employee in the criminal action. This can be enforced only upon a motion for subsidiary writ of execution against the employer and upon proof that the employee is insolvent. Proceeding for enforcement of subsidiary liability and criminal action, considered together.

Vda. De Paman v. Señeris, G.R. No. L-37632

(1982) Held: Section 1, Rule 111 of the Rules of Court provides, however, that "when a criminal action is instituted, the civil action for recovery of civil liability arising from the offense charged is impliedly instituted with the criminal action, unless the offended party expressly waives the civil action or reserves his right to institute it separately." That means as if two actions are joined in one as twins, each one complete with the same completeness as any of the two normal persons composing the twins. It means that the civil action may be tried and prosecuted, with all the ancillary processes provided by law. Said provision will be rendered meaningless if the subsidiary civil liability is not allowed to be enforced in the same proceeding. In the case at bar, the apparent drawback in the enforcement of the subsidiary liability in the same criminal proceeding is the lack of due process to the alleged employer. Not being a party to the case, he is not heard as to whether he is indeed the employer. To remedy the situation and thereby afford due process to the alleged employer, this Court directed the court a quo in Pajarito v. Señeris (supra) to hear and decide in the same proceeding the subsidiary liability of the alleged owner and operator of the passenger bus. It was explained therein that the proceeding for the enforcement of the subsidiary liability may be considered as part of the proceeding for the execution of the judgment. A case in which an execution has been issued is regarded as still pending so that all proceedings on the execution are proceedings in the suit.

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Philippine Rabbit v. People, G.R. No. 147703 (2004)

Held: Only the civil liability of the accused arising

from the crime charged is deemed impliedly instituted in a criminal action, that is, unless the offended party waives the civil action, reserves the right to institute it separately, or institutes it prior to the criminal action. Hence, the subsidiary civil liability of the employer under Article 103 of the Revised Penal Code may be enforced by execution on the basis of the judgment of conviction meted out to the employee. What is deemed instituted in every criminal prosecution is the civil liability arising from the crime or delict per se (civil liability ex delicto), but not those liabilities arising from quasi-delicts, contracts or quasi-contracts. In fact, even if a civil action is filed separately, the ex delicto civil liability in the criminal prosecution remains, and the offended party may -- subject to the control of the prosecutor -- still intervene in the criminal action, in order to protect the remaining civil interest therein. The cases dealing with the subsidiary liability of employers uniformly declare that, strictly speaking, they are not parties to the criminal cases instituted against their employees. Although in substance and in effect, they have an interest therein, this fact should be viewed in the light of their subsidiary liability. While they may assist their employees to the extent of supplying the latter’s lawyers, as in the present case, the former cannot act independently on their own behalf, but can only defend the accused. Industry Any department or branch of art, occupation or business; especially, one which employs so much labor and capital and is a distinct branch of trade. [Telleria v. Garcia] Other notes a. Private persons without business or industry are not subsidiarily liable, but may be primarily liable under culpa aquiliana. b. Employer has the right to take part in the defense of his employee.

c. What Civil Liability Includes Art. 104. What is included in civil liability. The civil liability established in Articles 100, 101, 102, and 103 of this Code includes:

1. 2. 3.

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Restitution; Reparation of the damage caused; Indemnification for consequential damages.

Art.

105. Restitution; How made. - The restitution of the thing itself must be made whenever possible, with allowance for any deterioration, or diminution of value as determined by the court. The thing itself shall be restored, even though it be found in the possession of a third person who has acquired it by lawful means, saving to the latter his action against the proper person, who may be liable to him. This provision is not applicable in cases in which the thing has been acquired by the third person in the manner and under the requirements which, by law, bar an action for its recovery.

Art. 106. Reparation; How made. - The court shall determine the amount of damage, taking into consideration the price of the thing, whenever possible, and its special sentimental value to the injured party, and reparation shall be made accordingly.

Art. 107. Indemnification; What is included. -

Indemnification for consequential damages shall include not only those caused the injured party, but also those suffered by his family or by a third person by reason of the crime. Art. 108. Obligation to make restoration,

reparation for damages, or indemnification for consequential damages and actions to demand the same; Upon whom it devolves. The obligation to make restoration or reparation for damages and indemnification for consequential damages devolves upon the heirs of the person liable. The action to demand restoration, reparation, and indemnification likewise descends to the heirs of the person injured. Art. 104 and Art. 38, distinguished Civil liabilities Pecuniary liabilities (Art. 104) (Art. 38) Reparation, Reparation, indemnification indemnification Restitution NONE Fine, costs of NONE proceedings

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Restitution Return of the VERY THING TAKEN. Further, if taken thing is damaged, the court may order the offender to pay amount representing deterioration. Restitution should apply when OFFENSE is proven even if accused is ACQUITTED. If the possessor of lost property acquired it in good faith in a PUBLIC SALE The said property cannot be given to the offended party/original owner without reimbursement to the good-faith possessor. Exceptions 1. Innocent purchaser for value of property covered by a Torrens title 2. When a sale is authorized by the original owner of the property. 3. When liability to return a thing arises from a contract, not from a criminal act, the court cannot order its return in the criminal case. Reparations Applies when restitution is not possible. Computation REPARATION = actual value of lost item which cannot be recovered + sentimental value to original owner Indemnity distinguished from restitution Restitution is crime against property; indemnity, crime against persons. When injuries are sustained Actual damage from injuries = whatever he spent to treat wounds + doctor’s fees + medicine + salary/wages unearned because of inability to work + damages due to loss of limb/etc. Lost earnings

People v. Wahiman, G.R. No. 200942 (2015):

Wahiman was convicted for murder. RTC imposed upon him the penalty of reclusion perpetua and directed him to pay the heirs the sum of Php75,000 as moral damages, P75,000 as civil indemnity, and actual damages as follows: Php59-million as lost earning capacity, Php25,000 actual damages, Php1,500 appearance fee, and Php50,000 attorney’s fee. Held: Regarding the award for lost earnings, the general rule is that there must be documentary proof to support the indemnity for loss of earning

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capacity. Admittedly, there are exceptions to this rule: (1) when the deceased is self-employed and earning less than minimum wage or (2) deceased was employed as a daily wage worker earning less than minimum wage. Notably, this case does not fall under these exceptions. Nevertheless, the Court is inclined to award lost earnings to the widow because she testified that deceased was the manager of Stanfilco-Dole and was receiving a monthly salary of Php95,000. This was not objected to by the appellant during crossexamination or appeal. J. Leonen’s concurring opinion: The formula for lost earnings is: Net Earning Capacity = Life Expectancy × [Gross Annual Income – Reasonable and Necessary Living Expenses] The necessary living expense is often estimated at 50% of gross annual income. The Regional Trial Court used a simplified formula to compute for loss of earning capacity citing People v. Reanzares. Loss of Earning Capacity = [2/3 x (80 – age of the deceased)] x 1/2 annual gross income The simplification of the formula is correct. However, the trial court’s computation was erroneous. This is a step-by-step guide to compute an award for loss of earning capacity. 1. Subtract the age of the deceased from 80. 2. Multiply the answer in (1) by 2, and divide it by 3 (these operations are interchangeable). 3. Multiply 50% to the annual gross income of the deceased. 4. Multiply the answer in (2) by the answer in (3). This is the loss of earning capacity to be awarded. Temperate damages Given when pecuniary losses were suffered but amount cannot be proven with certainty. Also, when income of victim is not sufficiently proven. Moral damages May be recovered in the following: 1. crime resulting to physical injuries 2. seduction, abduction, rape, or other lascivious acts

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3. 4. 5. 6. 7.

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adultery/concubinage illegal/arbitrary detention/arrest illegal search libel, slander, or any other form of defamation malicious prosecution

3.

4.

For rape, moral damages may additionally be awarded without need for pleading or proof of the basis thereof. Exemplary damages Corrective damages are deterrent to serious wrongdoings, and vindication of undue sufferings. This is attendant with at LEAST ONE aggravating circumstance. Or when crime is extremely reprehensible or outrageous. How to obtain Plaintiff must first show he is entitled to moral, temperate, or compensatory damages before exemplary damages are awarded. Attorney’s fees When defendant’s act or omission has compelled the plaintiff to litigate with third persons or incur expenses to protect his interest. Interest 6% per annum.

Heirs of Raymundo Castro v. Bustos, G.R. No.

L-25913 (1969): When death occurs as a result of a crime, the heirs of the deceased are entitled to the following items of damages: 1. As indemnity for the death of the victim of the offense — P12,000.00, without the need of any evidence or proof of damages, and even though there may have been mitigating circumstances attending the commission of the offense. 2. As indemnity for loss of earning capacity of the deceased — an amount to be fixed by the Court according to the circumstances of the deceased related to his actual income at the time of death and his probable life expectancy, the said indemnity to be assessed and awarded by the court as a matter of duty, unless the deceased had no earning capacity at said time on account of permanent disability not caused by the accused. If the deceased was obliged to give support, under Art. 291, Civil Code, the recipient who is not an heir, may demand support from the accused for not more than five years, the exact duration to be fixed by the court.

5.

6.

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As moral damages for mental anguish, — an amount to be fixed by the court. This may be recovered even by the illegitimate descendants and ascendants of the deceased. As exemplary damages, when the crime is attended by one or more aggravating circumstances, — an amount to be fixed in the discretion of the court, the same to be considered separate from fines. As attorney's fees and expresses of litigation, — the actual amount thereof, (but only when a separate civil action to recover civil liability has been filed or when exemplary damages are awarded). Interests in the proper cases.

It must be emphasized that the indemnities for loss of earning capacity of the deceased and for moral damages are recoverable separately from and in addition to the fixed sum of P12,000.00 corresponding to the indemnity for the sole fact of death, and that these damages may, however, be respectively increased or lessened according to the mitigating or aggravating circumstances, except items 1 and 4 above, for obvious reasons.

People v. Oandasan, G.R. No. 194605 (2016): Following People v. Jugueta, in the case of murder where the appropriate penalty is reclusion perpetna, the Court has thereby fixed P75,000.00

for moral damages, P75,000.00 for exemplary damages, and P75,000.00 for civil indemnity as the essential civil liabilities,- in addition to others as the records of each case will substantiate. Incidentally, the civil indemnity for homicide remained pegged at P50,000.00 for almost two decades. Also in accordance with People v. Jugueta, supra, temperate damages of P50,000.00 should further be granted to the heirs of the victims considering that they were presumed to have spent for the interment of each of the deceased.

d. Persons Civilly Liable Art. 108. Obligation to make restoration, reparation for damages, or indemnification for consequential damages and actions to demand the same; Upon whom it devolves. The obligation to make restoration or reparation for damages and indemnification for consequential damages devolves upon the heirs of the person liable.

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The action to demand restoration, reparation, and indemnification likewise descends to the heirs of the person injured.

Art. 109. Share of each person civilly liable. - If there are two or more persons civilly liable for a felony, the courts shall determine the amount for which each must respond.

Art. 110. Several and subsidiary liability of principals, accomplices and accessories of a felony; Preference in payment. -

Notwithstanding the provisions of the next preceding article, the principals, accomplices, and accessories, each within their respective class, shall be liable severally (in solidum) among themselves for their quotas, and subsidiaries for those of the other persons liable. The subsidiary liability shall be enforced, first against the property of the principals; next, against that of the accomplices, and, lastly, against that of the accessories. Whenever the liability in solidum or the subsidiary liability has been enforced, the person by whom payment has been made shall have a right of action against the others for the amount of their respective shares.

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Art. 113. Obligation to satisfy civil liability. Except in case of extinction of his civil liability as provided in the next preceding article the offender shall continue to be obliged to satisfy the civil liability resulting from the crime committed by him, notwithstanding the fact that he has served his sentence consisting of deprivation of liberty or other rights, or has not been required to serve the same by reason of amnesty, pardon, commutation of sentence or any other reason.

Art. 1231, CC. Obligations are extinguished: 1. 2. 3. 4. 5. 6.

By payment or performance; By the loss of the thing due; By the condonation or remission of the debt; By the confusion or merger of the rights of creditor and debtor; By compensation; By novation.

Loss of the thing due Loss of the thing due does not extinguish civil liability because if the offender cannot make restitution, he is obliged to make reparation.

Art. 111. Obligation to make restitution in certain cases. - Any person who has participated gratuitously in the proceeds of a felony shall be bound to make restitution in an amount equivalent to the extent of such participation.

Notes on RPC art. 108 1. The heirs of the person liable has no obligation if restoration is not possible and the deceased left no property. 2. Civil liability is possible only when the offender dies after final judgment. 3. The action to demand restoration, reparation and indemnification descends to the heirs of the person injured.

e. Extinction of Civil Liability Pertinent RPC provisions

Art. 112. Extinction of civil liability. - Civil liability established in Articles 100, 101, 102, and 103 of this Code shall be extinguished in the same manner as obligations, in accordance with the provisions of the Civil Law.

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II. REVISED PENAL CODE (BOOK II) A. Title I. Crimes against National Security and the Law of Nations Crimes against National Security: 1. Art. 114: Treason 2. Art. 115: Conspiracy and Proposal to Commit Treason 3. Art. 116: Misprision of Treason 4. Art. 117: Espionage Crimes against the Law of Nations 1. Art. 118: Inciting to War or Giving Motives for Reprisals 2. Art. 119: Violation of Neutrality 3. Art. 120: Correspondence with Hostile Country 4. Art. 121: Flight to Enemy’s Country 5. Art. 122: Piracy in General and Mutiny on the High Seas or in Philippine Waters 6. Art. 123: Qualified Piracy The crimes under this title can be prosecuted even if the criminal act or acts were committed outside of Philippine territorial jurisdiction. This is one of the instances where the RPC may be given extraterritorial application under Article 2 (5) thereof. However, prosecution can proceed only if the offender is: 1. within Philippine territory, or 2. brought to the Philippines pursuant to an extradition treaty. Crimes against national security can be tried only in the Philippines, as there is a need to bring the offender here before he can be made to suffer the consequences of the law. In the case of crimes against the law of nations, the offender can be prosecuted wherever he may be found because the crimes are regarded as committed against humanity in general. However if they are to be charged with violations of any or more of Arts. 118 to 123, their prosecution should be in the Philippines. A distinction should be made between criminal liability and prosecution. In the first, criminal liability attaches even if the act was committed outside of the Philippine territory while in the second, prosecution should necessarily be before Philippine courts. The second involves the matter of jurisdiction.

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The acts against national security may be committed abroad and still be punishable under our law. General rule: Almost all of these are crimes committed only in times of war. Exceptions: The following can be committed in times of peace: 1. Espionage [Art 117] – This is also covered by Commonwealth Act No. 616 which punishes conspiracy to commit espionage. 2. Inciting to War or Giving Motives for Reprisals [Art 118] – This can be committed even if the Philippines is not a participant. 3. Violation of Neutrality [Art. 119] – The Philippines is not a party to an on-going war.

1. Crimes against National

Security

a. Art. 114-Treason Mode 1: Levying War Elements: 1. Offender is a Filipino or resident alien 2. There is a war in which the Philippines is involved 3. The offender levies war against the government Mode 2: Adherence to the Enemy and Giving of Aid or Comfort Elements: 1. Offender is a Filipino or resident alien 2. There is a war in which the Philippines is involved 3. That the offender adheres to the enemies, giving them aid or comfort Treason is a breach of allegiance to a government, committed by a person who owes allegiance to it. It cannot be committed in times of peace. There are two ways of committing treason: 1. By levying war against the Government; and 2. By adhering to the enemies of the Philippines, giving them aid or comfort. [Reyes] Allegiance This is the obligation of fidelity and obedience which the individuals owe to the government under which they live or to their sovereign, in return for the protection they receive. [Reyes, citing 52 Am. Jur. 797]

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It can be either permanent or temporary. Permanent allegiance consists in the obligation of fidelity and obedience which a citizen or subject owes to his government or sovereign. Temporary allegiance is the obligation of fidelity and obedience which a residen alien owes to his government. [Laurel v. Misa, G.R. No. L-409 (1947)] Extent of Aid or Comfort To be treasonous, the extent of aid and comfort given to the enemies must be to render assistance to them as enemies and not as individuals, in the furtherance of the enemies’ hostile designs. [People v. Perez, G.R. No. L-856 (1949)] Intent of disloyalty is a vital ingredient in the crime of treason, which in the absence of admission may be gathered from the nature and circumstances of each particular case. [People v. Perez, supra.] Mode 1: Levying War There must be an actual assembling of men. The mere acceptance of the commission from the secretary of war of the Katipunan by the accused, nothing else having been done, was not an overt act of treason within the meaning of the law. [U.S. v. De los Reyes, G.R. No. 1434 (1904)] The levying of war must be directed against the government. It must be with intent to overthrow the government as such, not merely to resist a particular statute or to repel a particular officer. [Reyes, citing 3 Wharton’s Criminal Law, 12th Ed.] The levying of war must be in collaboration with a foreign enemy. If the levying of war is merely a civil uprising, without any intention of helping an external enemy, the crime is not treason. The offenders maybe held liable for rebellion under Article 135 in relation to Article 134 of the RPC. [Reyes] Mode 2: Adherence to the Enemy Adherence and giving aid or comfort to the enemy must concur. Adherence to the enemy means an intent to betray. There is adherence to the enemy when a citizen intellectually or emotionally favors the enemy and harbors sympathies or convictions disloyal to his own country’s policy or interest. Aid or comfort means an act which strengthens or tends to strengthen the enemy in the conduct of war against the traitor’s country and an act which weakens or tends to weaken the power of the traitor’s country to resist or to attack the enemy. [Cramer v. US, 65 Sup. Ct. 918 (1945)]

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When there is no adherence to the enemy, the act which may do aid or comfort to the enemy does not amount to treason. [Reyes] The aid and comfort must be given to the enemy by some kind of action. It must be a deed or physical activity, not merely a mental operation. What aid and comfort constitute treason must depend upon their nature, degree, and purpose. It is not essential that the effort to aid be successful, provided that over acts are done, which, if successful, would advance the interest of the enemy. [Reyes] Examples of Specific Acts of Aid or Comfort Constituting Treason 1. Serving as informer and active member of the Japanese Military Police, arresting guerilla suspects to suppress the underground movement [People v. Fernando, G.R. No. L-1138 (1947)] 2. Serving in the Japanese Army as agent or spy and participating in the raid of guerrilla hideout [People v. Muñoz, G.R. L-880 (1947)] 3. Acting as “finger woman” when a barrio was “zonified” by the Japanese, pointing out to the Japanese several men whom she accused as guerrillas [People v. Nuñez, G.R. No. L-2321 (1950)] 4. Taking active part in the mass killing of civilians by the Japanese soldiers by personally tying the hands of the victims [People v. Canibas, G.R. No. L-2193 (1950)] 5. Mere fact of having joined a Makapili organization is evidence of both adherence to the enemy and giving him aid and comfort. Unless forced upon one against his will, membership in the Makapili organization imports treasonable intent, considering the purpose for which the organization was created [People v. Adriano, G.R. No. L-477 (1947)] Acts not constituting treason 1. “Commandeering" of women to satisfy the lust of Japanese officers or men or to enliven the entertainments held in their honor, even though the women and the entertainments helped to make life more pleasant for the enemies and boost their spirit. Sexual and social relations with the Japanese did not directly and materially tend to improve their war efforts or to weaken the power of the US. [People v. Perez, supra.] 2. Acceptance of public office and discharge of official duties under the enemy [People v. Sison, P.C. 42 O.G. 748] The overt act of aid and comfort to the enemy must be intentional, as distinguished from merely negligent or undesigned ones. [Cramer v. US, supra.]

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General Rule: When the killings and other common

crimes are charged as overt acts of treason, they cannot be regarded: (a) as separate crimes, or (b) as complexed with treason.

Exception: But this rule would not preclude the

punishment of murder or other common crimes as such, if the prosecution should elect to prosecute the culprit specifically for these crimes, instead of relying on them as an element of treason. [People v. Prieto, G.R. No. L-399 (1948)] Treason by a Filipino citizen can be committed outside of the Philippines. Treason by an alien must be committed in the Philippines. The crime of treason is of such a nature that it may be committed by one single act, by a series of acts, or by several series thereof, not only in a single time, but in different times, it being a continuous crime. [People v. Victoria, G.R. No. L-369 (1947)] There is no treason through negligence. The overt act of aid and comfort to the enemy must be intentional. [Cramer v. US, supra.] Two Ways of Proving Treason 1. Testimony of at least two witnesses to the same overt act; or 2. Confession of accused in open court. [Art. 114, par.2, RPC] The Two-Witness Rule The testimony of two witnesses is required to prove the overt act of giving aid or comfort, but it is not necessary to prove adherence. Each of the witnesses must testify to the whole overt act; or if it is separable, there must be two witnesses to each part of the overt act. [People v. Escleto, G.R. No. L-1006 (1949)] Membership as a Makapili, as an overt act, must be established by the deposition of two witnesses. Where two or more witnesses give oaths to an overt act and only one of them is believed by the court or jury, the defendant is entitled to discharge. [People v. Adriano, supra.] Adherence may be proved: 1. By one witness; 2. From the nature of the act itself; or 3. From the circumstances surrounding the act. Adherence need not be proven by two witness testimonies. It may be inferred from one witness, or

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from the nature of the act itself or other circumstances. [People v. Adriano, supra] Aggravating Circumstance in treason ✓ Cruelty and ignominy Evident premeditation – since adherence and the giving of aid and comfort to the enemy is usually a long continued process requiring reflective and persistent determination and planning [People v. Racaza, supra.] Superior strength & treachery – since they are inherent in treason [People v. Adlawan, G.R. No. L456 (1949)] Treachery, aid of armed persons to insure or afford impunity, and deliberately augmenting the crimes by causing other wrongs not necessary in the commission thereof – since they are inherent in the crime of treason [People v. Victoria, supra.] Suspended Allegiance and Change of Sovereignty These defenses are not accepted because: 1. A citizen owes an absolute and permanent allegiance to his Government; 2. The sovereignty of the Government is not transferred to the enemy by mere occupation; 3. The subsistence of the sovereignty of the legitimate Government in a territory occupied by the military forces of the enemy during the war is one of the rules of International Law; and 4. What is suspended is the exercise of the rights of sovereignty. [Laurel v. Misa, supra.] In addition to the defense of duress or uncontrollable fear, lawful obedience to a de facto Government is a good defense in treason. The Philippine Executive Commission, as well as the Republic established by the Japanese occupation army in the Philippines, had all the characteristics of a de facto Government. [Go Kim Cham v. Valdez, G.R. No. L-5 (1945)] Defense of loss of citizenship by joining the army of the enemy is not valid. The accused cannot divest himself of his Philippine citizenship by the simple expedient of accepting a commission in the military, naval or air service of such country. If his contention is sustained, his very crime would be the shield that would protect him from punishment. [People v. Manayao, G.R. No. L-322 (1947)]

b. Article 115 – Conspiracy and Proposal to Commit Treason Elements of Conspiracy to Commit Treason: 1. There is a war in which the Philippines is involved

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2.

At least two persons come to an agreement to a. Levy war against the government; or b. Adhere to the enemies, giving them aid or comfort 3. They decide to commit it

of any conspiracy against” the Government of the Philippines, not knowledge of treason actually committed by another. In the latter case, the implication is that the government is already aware of it.

Elements of Proposal to Commit Treason 1. There is a war in which the Philippines is involved 2. At least one person decides to – a. Levy war against the government; or b. Adhere to the enemies, giving them aid or comfort 3. That person proposes its execution to other persons

The offender in misprision of treason is punished as an accessory to treason. Note that Article 116 does not provide for a penalty. However, the offender is a principal in the crime of misprision of treason.

General rule: Conspiracy and proposal to commit a felony is not punishable under Article 8. Exception: Under Article 115, mere conspiracy or proposal to commit treason is punishable. This is because, in treason, the very existence of the state is endangered. [Reyes] The two-witness rule does not apply to conspiracy or proposal to commit treason because this is a separate and distinct offense from that of treason. [US v. Bautista, G.R. No. L-2189 (1906)]

c. Article 116 – Misprision of Treason Elements: 1. Offender owes allegiance to the government, and is not a foreigner 2. He has knowledge of conspiracy to commit treason against the government 3. He conceals or does not disclose and make known the same as soon as possible to the governor or fiscal of the province in which he resides, or the mayor or fiscal of the city in which he resides This is a crime that may be committed only by citizens of the Philippines. It cannot be committed by a resident alien. Essence: There are persons who conspire to commit treason and the offender knew this and failed to make the necessary report to the government within the earliest possible time. Article 116 does not apply when the crime of treason is already committed by someone and the accused does not report its commission to the proper authority. The provision only speaks of “knowledge

Blood relationship is always subservient to national security. Article 20 of the RPC regarding accessories who are exempt from criminal liability does not apply in this case because persons found liable for this crime are not considered accessories, but as principals. Article 116 is an exception to the rule that mere silence does not make a person criminally liable. [US v. Caballeros, G.R. No. 1352 (1905)]

d. Article 117 – Espionage Mode 1: By entering, without authority therefor, a warship, fort, or naval or military establishment or reservation to obtain any information, plans, photographs, or other data of a confidential nature relative to the defense of the Philippines Elements: 1. Offender enters a warship, fort, or naval or military establishment or reservation; 2. He has no authority therefor; 3. His purpose is to obtain information, plans, photographs or other data of a confidential nature relative to the defense of the Philippines. Mode 2: Disclosing by public officer of confidential information to a foreign representative Elements: 1. That the offender is a public officer; 2. That he has in his possession the articles, data or information of a confidential nature relative to the defense of the Philippines, by reason of the public office he holds; 3. That he discloses their contents to a representative of a foreign nation. Under paragraph 1, the offender may be any person, but under paragraph 2, the offender must be a public officer who has in his possession the information by reason of the public office he holds.

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To be liable under paragraph 1, the offender must have the intention to obtain information relative to the defense of the Philippines. It is not necessary that the information is obtained. It is sufficient that the offender has the purpose to obtain such. Espionage

Treason

Not conditioned on the Not conditioned on the citizenship of the citizenship of the offender offender May be committed both Committed only in times in times of war and in of war times of peace Limited only to two ways of committing the crime: May be committed in levying of war and many ways adhering to the enemy giving him aid or comfort Commonwealth act NO. 616 An Act to Punish Espionage and Other Offenses against the National Security [Note: Not in 2018 Bar Syllabus] Punishable Acts Sec. 1. Unlawfully obtaining or permitting to be obtained information affecting national defense. — (a) going upon, entering, flying over, or otherwise obtaining information concerning any vessel, aircraft, work of defense, navy yard, naval station, submarine base, coaling station, fort, battery, torpedo station, dockyard, canal, railroad, arsenal, camp, factory, mine, telegraph, telephone, wireless, or signal station, building, office, or other place connected with the national defense, xxx or any place in which any vessel, aircraft, arms, munitions, or other materials or instruments for the use in time of war are being made, prepared, repaired, or stored, for the purposes of obtaining information respecting the national defense with intent or reason to believe that the information to be obtained is to be used to the injury of the Philippines or of the United States, or to the advantage of any foreign nation (b) copying, taking, making, or obtaining, or attempting, or inducing or aiding another to copy, take, make, or obtain, any sketch, photograph, photographic negative, blue print, plan, map, model, instrument, appliance, document, writing, or note of anything connected with the national defense for the same purpose and with like intent as in paragraph (a) (c) receiving or obtaining or agreeing or attempting or inducing or aiding another to

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receive or obtain from any person, or from any source whatever, any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, instrument, appliance, or note of anything connected with the national defense, knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts or induces or aids another to receive or obtain it, that it has been or will be obtained, taken, made, or disposed of by any person contrary to the provisions of this Act; or (d) wilfully communicating or transmitting or attempting to communicate or transmit any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, instrument, appliance, or note relating to the national defense to any person not entitled to receive it, or wilfully retaining the same and fails to deliver it on demand to the officer or employee of the Philippines or of the United States entitled to receive it; the offender having lawful or unlawful possession of, access to, control over, or being intrusted with the same; or (e) permitting, through gross negligence, to be removed from its proper place of custody or delivered to anyone in violation of this trust or to be lost, stolen, abstracted, or destroyed any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, note or information, relating to the national defense, the offender being intrusted with or having lawful possession or control of the same Sec. 2. Unlawful disclosing information affecting national defense. — (a) communicating, delivering, or transmitting, or attempting to, or aiding or inducing another to, communicate, deliver, or transmit to any foreign government, or any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the Philippines, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, instrument, appliance, or information relating to the national defense, with the intent or reason to believe that it is to be used to the injury of the Philippines or to the advantage of a foreign nation

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*Punishable by death or imprisonment for not more than 30 years, if committed in time of war. (b) in time of war, by collecting, recording, publishing, or communicating, or attempting to elicit any information with respect to the movement, number, description, condition, or disposition of any of the armed forces, ships, aircraft, or war materials of the Philippines, or with respect to the plans or conduct, or supposed plans or conduct of any military, naval, or air operations, or with respect to any works or measures undertaken for or connected with, or intended for the fortification or defense of any place, or any other information relating to the public defense which might be useful to the enemy Sec. 3. Disloyal acts or works in time of peace. — It shall be unlawful for any person, with intent to interfere with, impair, or influence the loyalty, morale, or discipline of the military, naval, or air forces of the Philippines (a) advising, counseling, urging, or in any manner causinginsubordination, disloyalty, mutiny, or refusal of duty by any member of the military, naval, or air forces of the Philippines or of the United States; or (b) distributing any written or printed matter which advises, counsels, or urges insubordination, disloyalty, mutiny, or refusal of duty by any member of the military, naval, or air forces of the Philippines. Sec. 4. Disloyal acts or words in time of war. — wilfully making or conveying false reports or false statements with the intent to interfere with the operation or success of the military, naval, or air forces of the Philippines, or To promote the success of its enemies, by wilfully causing or attempting to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military, naval, or air forces of the Philippines, or Willfully obstructing the recruiting or enlistment service of the Philippines to the injury of the service of the Philippines Sec. 5. Conspiracy to violate preceding sections. — (1) two or more persons conspire to violate the provisions of sections 1, 2, 3, or 4 of this Act, (2) one or more of such persons does any act to effect the object of the conspiracy Each of the parties to such conspiracy shall be punished for the doing of the act the

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accomplishment of which is the object of such conspiracy. Section 6. Harboring or concealing violators of the law. — harboring or concealing any person who he knows, or has reasonable ground to believe or suspect, has committed, or is about to commit, an offense under this Act. Other Acts (a) Making any photograph, sketch, picture, drawing, map, or graphical representation of vital military, naval, and air installations or equipment of the Armed Forces of the Philippines without first obtaining permission of the commanding officer[Sec. 8] (b) Using or permitting or procuring the use of an aircraft for the purpose of making a photograph, sketch, picture, drawing, map, or graphical representation of vital military, naval or air installations or equipment, in violation of Sec. 8 [Sec. 9] (c) Reproducing, publishing, selling, etc., uncensored copies any photograph, sketch, picture, drawing, map or graphical representation of the vital military, naval, or air installations or equipment so defined, without first obtaining permission of the commanding officer [Sec. 10] (d) Destroying or injuring or attempting to injure or destroy war material in time of war [Sec. 11] (e) Making or causing war material to be made in defective manner when the Philippines is at war [Sec. 12] (f) Injuring or destroying national defense material, premises, or utilities [Sec. 13] (g) Making or causing to be made in a defective manner, or attempting to make or cause to be made in a defective manner, national defense material [Sec. 14]

2. Crimes against the Law of

Nations

a. Article 118 – Inciting to War or Giving Motives for Reprisals Elements: 1. Offender performs unlawful or unauthorized acts 2. The acts provoke or give occasion for a. A war involving or liable to involve the Philippines; or b. Exposure of Filipino citizens to reprisals on their persons or property

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1. This crime is committed in times of peace. The intention of the offender is immaterial. The law considers the effects produced by the acts of the accused. [Reyes] Examples: The public destruction of the flag or seal of a foreign state or the public manifestations of hostility to the head or ambassador of another state.

b. Article 119 – Violation of Neutrality

2.

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That the notice or information might be useful to the enemy, and That the offender intended to aid the enemy.

If the offender intended to aid the enemy by giving such notice or information, the crime amounts to treason; hence, the penalty is the same as that for treason. [Reyes]

d. Article 121 – Flight to Enemy's Country

Elements 1. There is a war in which the Philippines is not involved 2. There is a regulation issued by a competent authority to enforce neutrality 3. Offender violates the regulation

Elements: 1. There is a war in which the Philippines is involved 2. Offender must be owing allegiance to the government 3. Offender attempts to flee or go to enemy country 4. Going to the enemy country is prohibited by competent authority

Neutrality This is defined as a nation or power which takes no part in a contest of arms going on between other countries.

An alien resident may be guilty of flight to enemy country. The law does not say “not being a foreigner.” Hence, the allegiance contemplated in this article is either natural or temporary allegiance. [Reyes]

c. Article 120 – Correspondence with Hostile Country

Mere attempt to flee or to go to enemy country when prohibited by competent authority consummates the felony. [Reyes]

Elements: 1. It is a time of war in which the Philippines is involved 2. Offender makes correspondence with an enemy country or territory occupied by enemy troops 3. The correspondence is either – a. Prohibited by the government, or b. Carried on in ciphers or conventional signs, or c. Containing notice or information which might be useful to the enemy.

e. Article 122 – Piracy in General and Mutiny on the High Seas or in Philippine Waters

Correspondence This is communication by means of letters which pass between those who have friendly or business relations. Even if the correspondence contains innocent matters, if the correspondence has been prohibited by the Government, it is punishable. Prohibition by the Government is not essential in instances (b) and (c). Qualifying Circumstances under Instance (c) The following must concur:

Elements: 1. The vessel is on the high seas or Philippine waters 2. Offenders are neither members of its complement nor passengers of the vessel 3. Offenders either – a. Attack or seize that vessel; or b. Seize the whole or part of its cargo, its equipment or personal belongings of its complement or passengers 4. There is intent to gain High Seas This term refers to the parts of the seas that are not included in the exclusive economic zone, in the territorial seas, or in the internal waters of a state, or in the archipelagic waters of an archipelagic state. [Convention on the Law of the Sea] Piracy This is robbery or forcible depredation on the high seas, without lawful authority and done with animo

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furandi and in the spirit and intention of universal hostility. [People v. Lol-lo and Saraw, G.R. No. 17958 (1922)] Jurisdiction The jurisdiction of piracy unlike all other crimes has no territorial limits. Pirates are in law hostes humani generis. Piracy is a crime not against any particular State but against all mankind. It may be punished in the competent tribunal of any country where the offender may be found or into which he may be carried. [People v. Lol-lo and Saraw, supra.] Mutiny This is the unlawful resistance to a superior officer, or the raising of commotions and disturbances on board a ship against the authority of its commander. Mutiny is usually committed by the other members of the complement and may be committed by the passengers of the vessel. Piracy

Mutiny

Persons who attack the vessel or seize its cargo are strangers to said vessels

Persons who attack the vessel or seize its cargo are members of the crew or passengers

Intent to gain is not essential. The offenders may only intend to ignore Intent to gain is essential the ship’s officers or they may be prompted by a desire to commit plunder. PRESIDENTIAL DECREE NO. 532 Anti-Piracy and Anti-Highway Robbery Law of 1974 Abetting Piracy In Section 4 of Presidential Decree No. 532, the act of aiding pirates or abetting piracy is penalized as a crime distinct from piracy. Said section penalizes any person who knowingly and in any manner aids or protects pirates, such as giving them information about the movement of the police or other peace officers of the government, or acquires or receives property taken by such pirates, or in any manner derives any benefit therefrom; or who directly or indirectly abets the commission of piracy. Also, the offender shall be considered as an accomplice of the principal offenders and

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punished in accordance with the Revised Penal Code. This provision of PD No. 532 with respect to piracy in Philippine waters has not been incorporated into the RPC. Neither may it be considered repealed by RA 7659 (An Act to Impose the Death Penalty on Certain Heinous Crimes) since there is nothing in the amendatory lawwhich is inconsistent with said section. REPUBLIC ACT 9372 An Act to Secure the State and Protect Our People from Terrorism (Human Security Act of 2007) A person who commits an act punishable as piracy and mutiny under Article 122 thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism.

f. Article 123 – Qualified Piracy Elements: 1. The vessel is on the high seas or Philippine waters 2. Offenders are neither members of its complement, or passengers of the vessel 3. Offenders either – a. Attack or seize the vessel; or b. Seize the whole or part of its cargo, its equipment, or personal belongings of its crew or passengers 4. The preceding were committed under any of the following circumstances: a. Whenever they have seized a vessel by boarding or firing upon the same; b. Whenever the pirates have abandoned their victims without means of saving themselves; or c. Whenever the crime is accompanied by murder, homicide, physical injuries or rape Paragraph 2 (Item 2 in letter D) specifically mentions “pirates” thereby excluding mutineers from said paragraph. It would seem, however, that it should be in paragraph 1 (Item 1 in letter D) where the word “pirates” should be specifically mentioned and not in paragraph 2, because in paragraph 1, the mutineers, being already in the vessel, cannot seize the vessel by boarding or firing upon the same. [Reyes] Murder, rape, homicide, physical injuries are mere circumstances qualifying piracy and cannot be

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punished as separate crimes, nor can they be complexed with piracy.

against or intimidation of person or force upon things of other unlawful means, committed by any person on any Philippine Highway. [Sec 2 (e),PD 532]

PD NO. 532: ANTI-PIRACY AND ANTIHIGHWAY ROBBERY LAW OF 1974

Philippine Highway

Punishable Acts 1.

Any road, street, passage, highway and bridges or other parts thereof, or railway or railroad within the Philippines used by persons, or vehicles, or locomotives or trains for the movement or circulation of persons or transportation of goods, articles, or property or both [Sec 2 (c),PD 532]

Piracy Any attack upon or seizure of any vessel, or the taking away of the whole or part thereof or its cargo, equipment, or the personal belongings of its complement or passengers, irrespective of the value thereof, by means of violence against or intimidation of persons or force upon things, committed by any person, including a passenger or member of the complement of said vessel, in Philippine waters. [Sec 2(d), PD 532]

Penalty

Reclusion temporal in its minimum period Reclusion temporal in its medium and maximum periods — If physical injuries or other crimes are committed during or on the occasion of the commission of robbery or brigandage Death — If kidnapping for ransom or extortion, or murder or homicide, or rape is committed as a result or on the occasion thereof [Sec 3(b), PD 532]

Philippine Waters

All bodies of water, such as but not limited to, seas, gulfs, bays around, between and connecting each of the Islands of the Philippine Archipelago, irrespective of its depth, breadth, length or dimension, and all other waters belonging to the Philippines by historic or legal title, including territorial sea, the sea-bed, the insular shelves, and other submarine areas over which the Philippines has sovereignty or jurisdiction[Sec 2(a), PD 532]

Vessel

Any vessel or watercraft used for transport of passengers and cargo from one place to another through Philippine Waters. It shall include all kinds and types of vessels or boats used in fishing [Sec 2(b), PD 532]

Penalty

Reclusion temporal in its medium and maximum periods Reclusion perpetua – if physical injuries or other crimes are committed as a result or on the occasion thereof Death – if rape, murder or homicide is committed as a result or on the occasion of piracy, or when the offenders abandoned the victims without means of saving themselves, or when the seizure is accomplished by firing upon or boarding a vessel [Sec 3(a), PD 532] 2. Highway Robbery/Brigandage The seizure of any person for ransom, extortion or other unlawful purposes, or the taking away of the property of another by means of violence

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3. Aiding pirates or highway robbers/brigands or abetting piracy or highway robbery/brigandage a.

Any person who knowingly and in any manner aids or protects pirates or highway robbers/brigands, such as giving them information about the movement of police or other peace officers of the government, or b. Acquires or receives property taken by such pirates or brigands or in any manner derives any benefit therefrom; or c. Any person who directly or indirectly abets the commission of piracy or highway robbery or brigandage They shall be considered as an accomplice of the principal offenders. It shall be presumed that any person who does any of the acts provided in this Section has performed them knowingly, unless the contrary is proven.[Sec 4,PD 532] RA 6235: AN ACT PROHIBITING CERTAIN ACTS INIMICAL TO CIVIL AVIATION, AND OTHER PURPOSES (ANTI-HIJACKING LAW) PUNISHABLE ACTS

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1.

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To compel a change in the course or destination of an aircraft of Philippine registry or to seize or usurp the control thereof, while it is in flight.

An aircraft is in flight from the moment all its external doors are closed following embarkation until any of such doors is opened for disembarkation. [Sec 1, RA 6235] 2. To compel an aircraft of foreign registry to land in Philippine territory or to seize or usurp the control thereof while it is within the said territory. [Sec 1, RA 6235]

Elements 1. Offender commits an act punishable under any of the following provisions of the Revised Penal Code: a. Art. 122 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters); b. Art.134 (Rebellion or Insurrection); c. Art. 134-a (Coup d’état), including acts committed by private persons; d. Art. 248 (Murder); e. Art. 267 (Kidnapping and Serious Illegal Detention); f. Art. 324 (Crimes Involving Destruction), or under a. P.D. No. 1613 (The Law on Arson); b. R.A. No. 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990); c. R.A. No. 5207, (Atomic Energy Regulatory and Liability Act of 1968); d. R.A. No. 6235 (Anti-Hijacking Law); e. Presidential Decree No. 532 (Anti-piracy and Anti-highway Robbery Law of 1974); and, f. P.D. No. 1866, as amended (Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives)

3. To ship, load or carry in any passenger aircraft operating as a public utility within the Philippines, an explosive, flammable, corrosive or poisonous substance or material. [Sec 3, RA 6235] The offender may be a natural or juridical person. The shipping, loading or carrying of any substance or material mentioned in the preceding section in any cargo aircraft operating as a public utility within the Philippines shall be in accordance with regulations issued by the Civil Aeronautics Administration. [Sec 4, RA 6235] PENALTY Imprisonment of not less than 12 years but not more than 20 years, or by a fine of not less than 20,000 pesos but not more than 40,000 pesos[Sec 2, RA 6235] The penalty of imprisonment of 15 years to death, or a fine of not less than 25,000 pesos but not more than 50,000 pesos shall be imposed upon any person committing such violation under any of the following circumstances: 1. Whenever he has fired upon the pilot, member of the crew or passenger of the aircraft; 2. Whenever he has exploded or attempted to explode any bomb or explosive to destroy the aircraft; or 3. Whenever the crime is accompanied by murder, homicide, serious physical injuries or rape.[Sec 2,RA 6235]

2. 3.

Thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace In order to coerce the government to give in to an unlawful demand[Sec 3, RA 9372]

Penalty Forty (40) years of imprisonment, without the benefit of parole as provided for under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended [Sec 3, RA 9372] Who Are Liable 1. Conspirator – Persons who conspire to commit the crime of terrorism shall suffer the penalty of forty (40) years of imprisonment. There is conspiracy when two or more persons come to an agreement concerning the commission of the crime of terrorism as defined in Section 3 hereof and decide to commit the same.[Sec 4, RA 9372]

RA 9372: AN ACT TO SECURE THE STATE AND PROTECT OUR PEOPLE FROM TERRORISM (HUMAN SECURITY ACT OF 2007) 2. TERRORISM

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Accomplice – Any person who, not being a

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cooperates in the execution of either the crime of terrorism or conspiracy to commit terrorism by previous or simultaneous acts shall suffer the penalty of from seventeen (17) years, four (4) months one day to twenty (20) years of imprisonment. [Sec 5, RA 9372]

B. Title II. Crimes against Fundamental Laws of the State

Accessory – Any person who, having knowledge

1. 2.

of the commission of the crime of terrorism or conspiracy to commit terrorism, and without having participated therein, either as principal or accomplice under Art.17 and 18 of the RPC takes part subsequent to its commission in any of the following manner: a. by profiting himself or assisting the offender to profit by the effects of the crime; b. by concealing or destroying the body of the crime, or the effects, or instruments thereof, in order to prevent its discovery; c. by harboring, concealing, or assisting in the escape of the principal or conspirator of the crime, shall suffer the penalty of ten (10) years and one day to twelve (12) years of imprisonment. [Sec 6, RA 9372] Notwithstanding the above paragraph, the penalties prescribed for accessories shall not be imposed upon those who are such with respect to their spouses, ascendants, descendants, legitimate, natural, and adopted brothers and sisters, or relatives by affinity within the same degrees, with the single exception of accessories falling within the provisions of subparagraph (a). [Sec 6, RA 9372] Double Jeopardy When a person has been prosecuted under a provision of this Act, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for any offense or felony which is necessarily included in the offense charged under this Act. [Sec 49, RA 9372]

Art. 124: Arbitrary Detention Art. 125: Delay in the Delivery Of Detained Persons to the Proper Judicial Authorities 3. Art. 126: Delaying Release 4. Art. 127: Expulsion 5. Art. 128: Violation of Domicile 6. Art.129: Search Warrants Maliciously Obtained and Abuse in the Service of those Legally Obtained 7. Art. 130: Searching Domicile Without Witnesses 8. Art. 131: Prohibition, Interruption and Dissolution of Peaceful Meetings 9. Art. 132: Interruption of Religious Worship 10. Art. 133: Offending the Religious Feelings Crimes under this title are those that violate certain provisions of the Bill of Rights. All offenses under this title can only be committed by public officers; except offending the religious feelings under Article 133, which can also be committed by a private person. A private person may be liable under these articles only when he: 1. Conspires with a public officer; or 2. He becomes an accomplice or accessory to said crimes.

1. Article 124 – Arbitrary

Detention

Elements: a. Offender is a public officer or employee b. He detains a person c. Detention is without a legal ground The crime of Arbitrary Detention assumes several forms: a. Detaining a person without legal grounds [Article 124]; b. Having arrested the offended party for legal grounds but without warrant of arrest, and the public officer does not deliver the arrested person to the proper judicial authority within the period of 12, 18, or 36 hours, as the case may be [Article 125]; or c. Delaying release by competent authority with the same period mentioned in number 2 [Article 126].

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Detention This refers to the actual confinement of a person in an enclosure, or in any manner detaining and depriving him of his liberty. The detention of a person is without legal ground: a. when he has not committed any crime or, at least, there is no reasonable ground for suspicion that he has committed a crime, or b. when he is not suffering from violent insanity or any other ailment requiring compulsory confinement in a hospital. A public officer is deemed such when he is acting within the bounds of his official authority or function. A police officer who employs force in excess of what is necessary is acting outside the bounds of his duties and is considered acting in his private capacity. [Boado] Although the offender must be a public officer in the crime of arbitrary detention, not all public officers can commit it. Only those public officers whose official duties carry with it the authority to make an arrest and detain persons can be guilty of this crime. In a case decided by the Supreme Court, a Barangay Chairman who unlawfully detains another was held to be guilty of the crime of arbitrary detention. This is because he is a person in authority vested with jurisdiction to maintain peace and order within his barangay. [Milo v. Salanga, G.R. No L-37007 (1987)] There must be an actual restraint of liberty of the offended party. The crime committed is only grave or light threats if the offended party may still go to the place where he wants to go, even though there have been warnings.

If the offender falsely imputes a crime against a person to be able to arrest him and appear not determined to file a charge against him, the crime is arbitrary detention through unlawful arrest. [Boado] In a case where a DENR team was invited to a mayor’s house from 5:30pm to 2:30am for dinner and drinks, the mayor was absolved of the charges of Arbitrary Detention. The determinative factor in Arbitrary Detention, in the absence of actual physical restraint, is fear. No record on evidence showed that the mayor instilled fear into the minds of the DENR team while they were in the Mayor’s house. [Astorga v. People, G.R. No. 154130 (2004)] Arrest without warrant is the usual cause of arbitrary detention.

Sec. 5, Rule 113. Arrest without warrant; when lawful. — A peace officer or a private person may,

without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraph (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112.

Difference between Arbitrary Detention, Illegal Detention and Unlawful Arrest Arbitrary Detention Illegal Detention

Offender

Criminal Intent

1. Public officer who has authority 2. to make arrests and detain persons

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Unlawful Arrest

Private person; or Public officer who is acting in a private capacity or Any person beyond the scope of his official duty

Accuse the offended party of a Violate the offended party’s crime he did not commit, deliver Deprive the offended party of his constitutional freedom against him to the proper authority, and personal liberty warrantless arrest file the necessary charges to incriminate him

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that one can only defy at one’s peril. [Sanchez v. Demetriou, G.R. Nos. 111771-77 (1993)]

2. Article 125 – Delay in the

Delivery of Detained Persons to the Proper Judicial Authorities

Elements: a. Offender is a public officer or employee b. He detains a person for some legal ground c. He fails to deliver such person to the proper judicial authorities within – 1. 12 hours for light penalties 2. 18 hours for correctional penalties 3. 36 hours for afflictive or capital penalties This is applicable only when the arrest is without a warrant, but the arrest must be lawful. At the beginning, the detention is legal since it is in the pursuance of a lawful arrest. Detention becomes arbitrary when the: a. Applicable period lapses b. Without the arresting officer filing a formal charge with the proper court. The periods stated are counted only when the prosecutor’s office is ready to receive the complaint or information. Nighttime is not included in the period. Delivery This means the filing of correct information with the proper court. It may also mean constructive delivery or the turning over the person arrested to the jurisdiction of the court. The purpose is to determine whether the offense is bailable or not. Upon delivery, the court acquires jurisdiction to issue an order of release or of commitment of prisoner. [Sayo v. Chief of Police, G.R. No. L-2128 (1948)] The elements of custodial investigation are: a. The suspect is deprived of liberty in any significant manner; b. The interrogation is initiated by law enforcement authorities; c. The interrogation is inculpatory in character. [People v. Tan, G.R. No. 117321 (1998)] Where the invitation comes from a powerful group composed predominantly of ranking military officers and the designated interrogation site is a military camp, the same can be easily taken not as a strictly voluntary invitation. It is an authoritative command

Where a judge is not available, the arresting officer is duty-bound to release a detained person, if the maximum hours for detention provided under Article 125 of the Revised Penal Code had already expired. [Albior v. Auguis, A.M. No. P-01-1472 (2003)] Waiver of the Provisions of Article 125 Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with Rule 112 of the Revised Rules of Criminal Procedure, but he must sign a waiver of the provisions of Article 125 of the RPC in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen days from its inception. [par. 2, Sec. 7, Rule 112]

3. Article 126 – Delaying

Release

Elements: a. Offender is a public officer or employee b. There is a: 1. Judicial or executive order for the release of a prisoner or detention prisoner, or 2. A proceeding upon a petition for the liberation of such person c. Offender without good reason delays – 1. The service of the notice of such order to the prisoner 2. The performance of such judicial or executive order for the release of the prisoner; or 3. The proceedings upon a petition for the release of such person Wardens and jailers are the public officers most likely to violate Article 126.

4. Article 127 – Expulsion Elements: a. Offender is a public officer or employee b. He either – 1. Expels any person from the Philippines; or 2. Compels a person to change residence c. Offender is not authorized to do so by law The city mayor of Manila committed the crime of expulsion when he ordered certain prostitutes to be transferred to Davao WITHOUT observing due process since they have not been charged with any

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crime. [Villavicencio v. Lukban, G.R. No. L-14639 (1919)]

5. Article 128 – Violation of

Domicile

b.

Acts punished: a. Entering any dwelling against the will of the owner thereof b. Searching papers or other effects found therein without the previous consent of such owner, or c. Refusing to leave the premises, after having surreptitiously entered said dwelling and after having been required to leave the same Elements common to the three acts: a. Offender is a public officer or employee b. He is not authorized by judicial order – 1. To enter the dwelling; 2. To make a search therein for papers or other effects; or 3. He refuses to leave, after having surreptitiously entered such dwelling and having been required to leave the same. Qualifying circumstances: a. Nighttime b. Papers or effects not constituting evidence of a crime are not returned immediately after the search made by the offender Rule 113: A public officer who breaks into the premises incurs no liability when aperson to be arrested enters said premises and closes it thereafter, provided that the officer first gives a notice of arrest. According to People v. Doria [G.R. No. 125299 (1999)] and People v. Elamparo [G.R. No. 121572 (2000)], the following are the accepted exceptions to the warrant requirement: a. Search incidental to an arrest; b. Search of moving vehicles; c. Evidence in plain view; d. Stop and frisk; e. Customs searches; and f. Consented warrantless search. [M]ere suspicion or a hunch will not validate a "stop and frisk." A genuine reason must exist, in light of the police officer's experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. A "stop-and-frisk" serves a two-fold interest: a. The general interest of effective crime prevention and detection, which underlies the recognition

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that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and The more pressing interest of safety and selfpreservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer. [Malacat v. CA, G.R. No. 123595 (1997)]

“Against the will” means that the offender ignored the prohibition of the owner which may be express or implied as when the door is closed even though not locked. [Boado] The offender must be a public officer or employee. If the offender is a private individual then the crime is trespass to dwelling under Article 280.

6. Article 129 – Search Warrants

Maliciously Obtained, and Abuse in the Service of Those Legally Obtained

Procuring a search warrant without just cause: a. Offender is a public officer or employee b. He procures a search warrant c. There is no just cause Exceeding authority or using unnecessary severity in executing a search warrant legally procured: a. Offender is a public officer or employee b. He has legally procured a search warrant c. He exceeds his authority or uses unnecessary severity in executing the same

7. Article 130 – Searching

Domicile without Witnesses

Elements: a. Offender is a public officer or employee b. He is armed with search warrant legally procured c. He searches the domicile, papers or other belongings of any person d. The owner, or any members of his family, or two witnesses residing in the same locality are not present

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To “search” means to go over or look through for the purpose of finding something; to examine. Note that it must be done to a person’s domicile, papers, or other belongings only. [Reyes] Rule 126: Search and Seizure A search warrant is an order in writing: a. Signed by a judge b. Directed to a peace officer, commanding him to search for personal property described therein and bring it before the court Requisites for issuing a search warrant: a. Probable cause, in connection with one specific offense, to be determined personally by the judge after examination under oath or affirmation of the complainant and the witness he may produce b. Particular description of: 1. Place to be searched; and 2. Things to be seized which may be anywhere in the Philippines An officer may break open any outer or inner door or window of a house or any part of a house or anything therein when these circumstances concur: a. He is refused admittance to the place of directed search; b. His purpose is to execute the warrant to liberate himself or any person lawfully aiding him when unlawfully detained therein; and c. He has given notice of his purpose and authority. The warrant must direct that it be served in the daytime. However, it can be served at any time of the day or night when the affidavit asserts that the property is on the person or in the place ordered to be searched. A search warrant shall be valid for ten (10) days from its date. Thereafter, it shall be void. The officer seizing the property under the warrant must give a detailed receipt for the same to the lawful occupantof the premises in whose presence the search and seizure were made. In the absence of such occupant, the officer must: a. Leave a receipt in the place in which he found the seized property; b. In the presence of at least two witnesses of sufficient age and discretion residing in the same locality.

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8. Article 131 – Prohibition,

Interruption and Dissolution of Peaceful Meetings

Elements: a. Offender is a public officer or employee b. He performs any of the following acts: 1. Prohibiting or interrupting, without legal ground, the holding of a peaceful meeting, or by dissolving the same 2. Hindering any person from joining any lawful association, or from attending any of its meetings 3. Prohibiting or hindering any person from addressing, either alone or together with others, any petition to the authorities for the correction of abuses or redress of grievances The government has a right to require a permit before any gathering can be made. However, the government only has regulatory, not prohibitory, powers with regard to such requirement. The permit should state the day, time, and place of the gathering. If the permit is denied arbitrarily, OR the officer dictates the place where the meeting is to be held, this article is violated. If in the course of the assembly, which started out peacefully, the participants committed illegal acts like oral defamation or inciting to sedition, a public officer or law enforcer can stop or dissolve the meeting. Two criteria to determine whether this article would be violated: a. Dangerous tendency rule – applied during times of national unrest such as to prevent coup d’état. b. Clear and present danger rule – applied during times of peace. Stricter rule.

9. Article 132 – Interruption of

Religious Worship

Elements: a. Offender is a public officer or employee b. Religious ceremonies or manifestations of any religion are about to take place or are going on c. Offender prevents or disturbs the same Qualifying circumstance: if the crime is committed with violence or threats.

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10. Article 133 – Offending the

Religious Feelings

Elements: a. Acts complained of were performed 1. in a place devoted to religious worship, or 2. during the celebration of any religious ceremony b. The acts must be notoriously offensive to the feelings of the faithful In the phrase “in a place devoted to religious worship,” it is not necessary that there is a religious ceremony going on when the offender performs acts notoriously offensive to the feelings of the faithful. The phrase “during the celebration” is separated by the word “or” from the phrase “place devoted to religious worship,” which indicates that the “religious ceremony” need not be celebrated in a place of worship. [Reyes] An act is notoriously offensive to the religious feelings when a person: a. Ridicules or makes light of anything constituting religious dogma b. Works or scoffs at anything devoted to religious ceremonies c. Plays with or damages or destroys any object of veneration of the faithful Whether or not an act is offensive to the religious feelings is a question of fact which must be adjudged only according to the feelings of the Catholics and not those of other faithful ones. [People v. Baes, G.R. No. L-46000 (1939)] Laurel Dissent in People v. Baes: Offense to religious feelings should not be made to depend upon the more or less broad or narrow conception of any given particular religion, but should be gauged having in view the nature of the acts committed and after scrutiny of all the facts and circumstance which should be viewed through the mirror of an unbiased judicial criterion. [Note: This later became the majority decision in People v. Tengson, (CA) 67 O.G. 1552 (1971)] The crime is only unjust vexation when the act is not directed at the religious belief itself and there is no intention of causing so serious a disturbance as to interrupt a religious ceremony. [People v. Nanoy, 69 O.G. 8043 (1975)]

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RA 9372: AN ACT TO SECURE THE STATE AND PROTECT OUR PEOPLE FROM TERRORISM (HUMAN SECURITY ACT OF 2007) Note: RA 9372 was specifically mentioned in the 2018 Bar Syllabus) Period of Detention Period of Detention Without Judicial Warrant of Arrest The provisions of Article 125 of the Revised Penal Code to the contrary notwithstanding, any police or law enforcement personnel, who, having been duly authorized in writing by the Anti-Terrorism Council has taken custody of a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism shall, without incurring any criminal liability for delay in the delivery of detained persons to the proper judicial authorities, deliver said charged or suspected person to the proper judicial authority within a period of three (3) days counted from the moment the said charged or suspected person has been apprehended or arrested, detained, and taken into custody by the said police, or law enforcement personnel: Provided, That the arrest of those suspected of the crime of terrorism or conspiracy to commit terrorism must result from the surveillance under Section 7 and examination of bank deposits under Section 27 of this Act. The police or law enforcement personnel concerned shall, before detaining the person suspected of the crime of terrorism, present him or her before any judge at the latter’s residence or office nearest the place where the arrest took place at any time of the day or night. It shall be the duty of the judge, among other things, to ascertain the identity of the police or law enforcement personnel and the person or persons they have arrested and presented before him or her, to inquire of them the reasons why they have arrested the person and determine by questioning and personal observation whether or not the suspect has been subjected to any physical, moral or psychological torture by whom and why. The judge shall then submit a written report of what he/she had observed when the subject was brought before him to the proper court that has jurisdiction over the case of the person thus arrested. the judge shall forthwith submit his/her report within three (3) calendar days from the time the suspect was brought to his/her residence or office. Immediately after taking custody of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, the police or law enforcement personnel shall notify in writing the judge of the court nearest the place of apprehension

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or arrest: Provided, That where the arrest is made during Saturdays, Sundays, holidays or after office hours, the written notice shall be served at the residence of the judge nearest the place where the accused was arrested. The penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon the police or law enforcement personnel who fails to notify any judge as provided in the preceding paragraph. [Sec. 18 RA 9372] Period of Detention in the Event of an Actual or Imminent Terrorist Attack In the event of an actual or imminent terrorist attack, suspects may not be detained for more than three (3) days without the written approval of a municipal, city, provincial or regional official of a Human Rights Commission or judge of the municipal, regional trial court, the Sandiganbayan or a justice of the Court of Appeals nearest the place of the arrest. If the arrest is made during Saturdays, Sundays, holidays or after office hours, the arresting police or law enforcement personnel shall bring the person thus arrested to the residence of any of the officials mentioned above that is nearest the place where the accused was arrested. The approval in writing of any of the said officials shall be secured by the police or law enforcement personnel concerned within five (5) days after the date of the detention of the persons concerned: Provided, however, That within three (3) days after the detention the suspects, whose connection with the terror attack or threat is not established, shall be released immediately. [Sec. 19 RA 9372] RA 9745: An Act Penalizing Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment and Prescribing Punishment Therefor (Anti-Torture Act) Torture refers to 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; punishing him/her for an act he/she or a third person has committed or is suspected of having committed; or intimidating or coercing him/her or a third person; or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a person in authority or agent of a person in authority. It does not include pain or Buffering arising only from, inherent in or incidental to lawful sanctions. [Sec. 3a RA 9745]

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Other cruel, inhuman and degrading treatment or punishment refers to a deliberate and aggravated treatment or punishment not enumerated under Section 4 of this Act, inflicted by a person in authority or agent of a person in authority against a person under his/her custody, which attains a level of severity causing suffering, gross humiliation or debasement to the latter. [Sec. 3b RA 9745] PUNISHABLE ACTS Acts of Torture For purposes of this Act, torture shall include, but not be limited to, the following: a. Physical torture is a form of treatment or punishment inflicted by a person in authority or agent of a person in authority upon another in his/her custody that causes severe pain, exhaustion, disability or dysfunction of one or more parts of the body, such as: 1. Systematic beating, headbanging, punching, kicking, striking with truncheon or rifle butt or other similar objects, and jumping on the stomach; 2. Food deprivation or forcible feeding with spoiled food, animal or human excreta and other stuff or substances not normally eaten; 3. Electric shock; 4. Cigarette burning; burning by electrically heated rods, hot oil, acid; by the rubbing of pepper or other chemical substances on mucous membranes, or acids or spices directly on the wound(s); 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; • The administration or drugs to induce confession and/or reduce mental competency; or

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•

The use of drugs to induce extreme pain or certain symptoms of a disease; and 13. 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/her relative(s) with bodily harm, execution or other wrongful acts; 3. Confinement in solitary cells or secret detention places; 4. Prolonged interrogation; 5. Preparing a prisoner for a "show trial", public display or public humiliation of a detainee or prisoner; 6. Causing unscheduled transfer of a person deprived of liberty from one place to another, creating the belief that he/she shall be summarily executed; 7. Maltreating a member/s of a person's family; 8. Causing the torture sessions to be witnessed by the person's family, relatives or any third party; 9. Denial of sleep/rest; 10. Shame infliction such as stripping the person naked, parading him/her in public places, shaving the victim's head or putting marks on his/her body against his/her will; 11. Deliberately prohibiting the victim to communicate with any member of his/her family; and 12. Other analogous acts of mental/psychological torture. [Sec. 4, RA 9745] Other Cruel, Inhuman and Degrading Treatment or Punishment Other cruel, inhuman or degrading treatment or punishment refers to a deliberate and aggravated treatment or punishment not enumerated under Section 4 of this Act, inflicted by a person in authority or agent of a person in authority against another person in custody, which attains a level of severity sufficient to cause suffering, gross humiliation or debasement to the latter. The assessment of the level of severity shall depend on all the circumstances of the case, including the duration of the treatment or punishment, its physical and mental effects and, in some cases, the sex, religion, age and state of health of the victim. [Sec. 5, RA 9745]

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Freedom from Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, An Absolute Right Torture and other cruel, inhuman and degrading treatment or punishment as criminal acts shall apply to all circumstances. A state of war or a threat of war, internal political instability, or any other public emergency, or a document or any determination comprising an "order of battle" shall not and can never be invoked as a justification for torture and other cruel, inhuman and degrading treatment or punishment. [Sec. 6, RA 9745] Prohibited Detention Secret detention places, solitary confinement, incommunicado or other similar forms of detention, where torture may be carried out with impunity are hereby prohibited. In which case, the Philippine National Police (PNP), the Armed Forces of the Philippines (AFP) and other law enforcement agencies concerned shall make an updated list of all detention centers and facilities under their respective jurisdictions with the corresponding data on the prisoners or detainees incarcerated or detained therein such as, among others, names, date of arrest and incarceration, and the crime or offense committed. This list shall be made available to the public at all times, with a copy of the complete list available at the respective national headquarters of the PNP and AFP. A copy of the complete list shall likewise be submitted by the PNP, AFP and all other law enforcement agencies to the Commission on Human Rights (CHR), such list to be periodically updated, by the same agencies, within the first five (5) days of every month at the minimum. Every regional office of the PNP, AFP and other law enforcement agencies shall also maintain a similar list far all detainees and detention facilities within their respective areas, and shall make the same available to the public at all times at their respective regional headquarters, and submit a copy, updated in the same manner provided above, to the respective regional offices of the CHR. [Sec. 7, RA 9745] 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

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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: 1. 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; 2. By concealing the act of torture or other cruel, inhuman and degrading treatment or punishment and/or destroying the effects or instruments thereof in order to prevent its discovery; or (c) By harboring, concealing or assisting the escape of the principal/s in the act of torture or other cruel, inhuman and degrading treatment or punishment: Provided, That the accessory acts are done with the abuse of the official's public functions. [Sec. 13, RA 9745]

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C. Title III. Crimes against Public Order The following are Crimes Against Public Order: 1. Chapter I: Rebellion, Coup d’etat, Sediction, and Disloyalty a. Article 134: Rebellion or Insurrection b. Article 134-A: Coup d’état c. Article 136: Conspiracy and Proposal to Commit Coup d’état, Rebellion or Insurrection d. Article 137: Disloyalty of Public Officers or Employees e. Article 138: Inciting to Rebellion or Insurrection f. Article 139: Sedition g. Article 141: Conspiracy to Commit Sedition h. Article 142: Inciting to Sedition 2. Chapter II: Crimes against Popular Representation a. Article 143: Acts Tending to Prevent the Meeting of the Congress of the Philippines and Similar Bodies b. Article 144: Disturbance of Proceedings c. Article 145: Violation of Parliamentary Immunity 3. Chapter III: Illegal Assemblies and Associations a. Article 146: Illegal Assemblies b. Article 147: Illegal Associations 4. Chapter IV: Assault upon and Resistance and Disobedience to, Persons in Authority and Their Agents a. Article 148: Direct Assault b. Article 149: Indirect Assault c. Article 150: Disobedience to Summons Issued by Congress, Its Committees or Subcommittees, by the Constitutional Commissions, Its Committees, Subcommittees or Divisions d. Article 151: Resistance and Disobedience to a Person in Authority or the Agents of Such Persons 5. Chapter V: Public Disorders a. Article 153: Tumults and Other Disturbances of Public Order b. Article 154: Unlawful Use of Means of Publication and Unlawful Utterances c. Article 155: Alarms and Scandals d. Article 156: Delivering Persons from Jail 6. Chapter VI: Evasion of Service of Sentence a. Article 157: Evasion of Service of Sentence b. Article 158: Evasion of Service of Sentence on the Occasion of Disorders, Conflagrations, Earthquakes, or Other Calamities

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c. 7.

Article 159: Other Cases of Evasion of Service of Sentence Chapter VII: Commission of Another Crime during Service of Penalty Imposed for Another Previous Offense a. Article 160: Quasi-Recidivism

1. Chapter I: Rebellion, Coup

d’etat, Sedition and Disloyalty

a. Article 134 – Rebellion or Insurrection Elements: 1. There is a public uprising and taking arms against the government; 2. The purpose of the uprising or movement is: a. To remove from the allegiance to the government or its laws the Philippine territory or any part thereof, or any body of land, naval, or other armed forces; or b. To deprive the Chief Executive or Congress, wholly or partially, of any of their powers or prerogatives. Rule on Complexing of Rebellion: Rebellion cannot be complexed with, but absorbs other crimes committed in furtherance of rebellion. There is no complex crime of rebellion with murder and other common crimes. The doctrine laid down in People v. Hernandez [G.R. No. 6025 (1964)] remains good law. This prohibits the complexing of rebellion with any other offense committed in the occasion thereof, either as a means to its commission or as an unintended effect of an activity that constitutes rebellion. [Enrile v. Salazar, G.R. No. 92163 (1990)] All crimes, whether punishable under special or general law, which are mere components or ingredients, or committed in furtherance thereof, become absorbed in the crime of rebellion and cannot be isolated and charged as separate crimes themselves. [Enrile v. Amin, G.R. No. 93335 (1990)] Both motive and overt acts are essential components of the crime of rebellion. If the political motive of a supposedly rebellious act cannot be sufficiently proven, the accused should be convicted of the common crime (e.g. murder) and not of rebellion.

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Rebellion is not covered by Art. 2 on extraterritorial jurisdiction. [People v. Lovedioro, G.R. No. 112235 (1995)] An actual clash of arms with the forces of the Government is not absolutely necessary. It is also not necessary that the purpose of the rebellion be accomplished. [Reyes] Rebellion v. Insurrection Rebellion Insurrection A movement seeking to effect some change of Object is to completely minor importance or to overthrow and supplant prevent the exercise of the existing governmental authority government with respect to particular matters or subjects Rebellion v. Treason Rebellion Treason The levying of war against the government during peace time for any purpose mentioned in Art. 134

The levying of war against the government would constitute treason when performed to aid the enemy; it would also constitute adherence to the enemy, giving him aid and comfort

Always involves taking Mere adherence to the up arms against the enemy giving him aid and government. comfort Note: There is no crime of misprision of rebellion. Rebellion v. Sedition Rebellion Sedition There must be taking up It is sufficient that the of arms against the public uprising be government. tumultuous. The purpose is always The purpose may be political. political or social. Note: When any of the objectives of rebellion is pursued but there is no public uprising in the legal sense, the crime is direct assault of the first form.

b. Article 134-A – Coup d’État Elements: 1. Offender is a person or persons belonging to the military or police or holding any public office or employment;

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2. 3.

4.

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It is committed by means of a swift attack accompanied by violence, intimidation, threat, strategy or stealth; The attack is directed against the duly constituted authorities of the Republic of the Philippines, or any military camp or installation, communication networks, public utilities or other facilities needed for the exercise and continued possession of power; The purpose of the attack is to seize or diminish state power.

Persons who may commit coup d’état: 1. It may be committed singly or collectively 2. It requires as a principal offender a member of the AFP, PNP, or a public officer with or without civilian support Coup d’état, when considered as Terrorism A person who commits an act punishable as coup d’état under Article 134-A of the Revised Penal Code, including acts committed by private persons, thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism.

c. Article 135 – Penalty for Rebellion, Insurrection or Coup d’État Persons liable for rebellion, insurrection or coup d’état 1. The leaders: a. Any person who promotes, maintains or heads a rebellion or insurrection; or b. Any person who leads, directs or commands others to undertake a coup d’état; 2. The participants: a. Any person who participates or executes the commands of others in rebellion or insurrection; b. Any person in the government service who participates or executes directions or commands of others in undertaking a coup d’état; c. Any person not in the government service who participates, supports, finances, abets or aids in undertaking a coup d’état. d. If under the command of unknown leaders, any person who directed the others, spoke for them, signed receipts and other documents issued in their name on behalf of the rebels shall be deemed a leader.

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It is not a defense in rebellion that the accused never took the oath of allegiance to, or that they never recognized the Government. [US v. del Rosario, G.R. No. 1106 (1903)] Mere silence or omission is not punishable in rebellion. [US v. Ravidas, G.R. No. 1503 (1903)]

d. Article 136 – Conspiracy and Proposal to Commit Coup d’ État, Rebellion or Insurrection Mode 1: Conspiracy to Commit Coup d’état, Rebellion or Insurrection Elements: 1. Two or more persons come to an agreement to swiftly attack or to rise publicly and take arms against the Government for any of the purposes of rebellion or insurrection; 2. They decide to commit it. Mode 2: Proposal to Commit Coup d’état, Rebellion or Insurrection Elements: 1. A person has decided to swiftly attack or to rise publicly and take arms against the Government for any of the purposes of rebellion or insurrection; 2. Such person proposes its execution to some other person or persons. Conspiracy When two or more persons come to an agreement to rise publicly and take arms against government for any of the purposes of rebellion and decide to commit it

Proposal When the person who has decided to rise publicly and take arms against the government for any of the purposes of rebellion proposes its execution to some other person or persons

e. Article 137 – Disloyalty of Public Officers or Employees Elements: 1. Offender is a public officer or employee; 2. Offender commits any of the following acts: a. Failing to resist a rebellion by all the means in their power; b. Continuing to discharge the duties of their offices under the control of the rebels c. Accepting appointment to office under them.

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The crime presupposes rebellion committed by other persons. Offender must not be in conspiracy with the rebels, otherwise, he is himself guilty of rebellion.

f. Article 138 – Inciting to Rebellion or Insurrection Elements: 1. Offender does not take arms or is not in open hostility against the government; 2. He incites others to the execution of any of the acts of rebellion; 3. The inciting is done by means of speeches, proclamations, writings, emblems, banners or other representations tending to the same end. Note: There is no crime of inciting to treason. Inciting to Rebellion v. Proposal to Commit Rebellion Proposal to Commit Inciting to Rebellion Rebellion The offender induces another to commit rebellion. Rebellion should not be actually committed by the persons to whom it is proposed or who are incited. Otherwise, they become principals by inducement in the crime of rebellion. The person who There is no need that the proposes has decided to offender has decided to commit rebellion. commit rebellion. The person who The act of inciting is done proposes the execution publicly. of the crime uses secret means.

g. Article 139 – Sedition Elements: 1. Offenders rise publicly and tumultuously; 2. Offenders employ force, intimidation, or other means outside of legal methods; 3. Purpose is to attain any of the following objects: a. To prevent the promulgation or execution of any law or the holding of any popular election; b. To prevent the national government or any provincial or municipal government or any public officer from exercising its or his functions, or prevent the execution of an administrative order; c. To inflict any act of hate or revenge upon the person or property of any public officer or employee;

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d. To commit, for any political or social end, any act of hate or revenge against private persons or any social classes; 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 Tumultuous If caused by more than three persons (i.e., at least four) who are armed or provided with the means of violence. [Art. 163] The purpose of this crime is not the overthrowing of the government but the violation of public peace. Public uprising and an object of sedition must concur. The lack of one means there is no sedition. Under R.A. 8294 (Act Amending PD No. 1866 or the Firearms Law), sedition absorbs the use of unlicensed firearm as an element thereof; hence, it is not an aggravating circumstance, and the offender can no longer be prosecuted for illegal possession of firearm. [Boado, Comprehensive Reviewer in Criminal Law] If the violation of RA 10591 (Comprehensive Firearms and Ammunition Regulation Act) is in furtherance of, or incident to, or in connection with the crime of rebellion of insurrection, or attempted coup d’état, such violation shall be absorbed as an element of the crime of rebellion or insurrection, or attempted coup d’état. [Sec. 29, RA 10591] Sedition v. Rebellion Sedition

Rebellion

There must be a public uprising. It is sufficient that the There must be taking up public uprising is of arms against the tumultuous. government. The purpose of the The purpose of the offenders may be political offenders is always or social. political. Note: The distinction between sedition and rebellion lies in the object at which the uprising aims, not the extent of the territory covered by the uprising. [League v. People, G.R. No. L-47357 (1941)] Sedition v. Coup d’état Sedition

Coup d’état

There is no distinction as Offender belongs to the to who may commit; a military or police or

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private individual may holding any public office commit the offense or employment Primary purpose is to To seize or to diminish disturb public peace state power Sedition v. Treason Sedition

Treason

It is the raising of It is the violation by a commotions or subject of his allegiance disturbances in the State. to his sovereign. In one case, a friction between the Philippine constabulary and the Manila police escalated and resulted in the deaths of 6 policemen and 2 civilians and in the serious injuries of 3 civilians. The Court held that unlike the crime of rebellion, common crimes committed in the occasion of sedition are to be appreciated as separate crimes. [People v. Cabrera, G.R. No. L-17748 (1922)]

h. Article 140 – Persons Liable for Sedition 1. 2.

The leader of the sedition; Other person participating in the sedition

i. Article 141 – Conspiracy to Commit Sedition Elements: 1. Two or more persons come to an agreement and a decision to rise publicly and tumultuously to attain any of the objects of sedition; 2. They decide to commit it. Note: There is no proposal to commit sedition.

j. Article 142 – Inciting to Sedition Mode 1. Inciting others to the accomplishment of any of the acts which constitute sedition by means of speeches, proclamations, writings, emblems, etc. Elements: 1. Offender does not take direct part in the crime of sedition; 2. He incites others to the accomplishment of any of the acts which constitute sedition; 3. The inciting is done by means of speeches, proclamations, writings, emblems, cartoons, banners, or other representations tending towards the same end.

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Mode 2. Uttering seditious words or speeches which tend to disturb the public peace; Mode 3. Writing, publishing, or circulating scurrilous libels against the government or any of the duly constituted authorities thereof, which tend to disturb the public peace. Elements: 1. Offender does not take any direct part in the crime of sedition. 2. He uttered words or speeches and writing, publishing or circulating scurrilous libels and that a. Tend to disturb or obstruct any lawful officer in conducting the functions of his office; b. Tend to instigate others to cabal and meet together for unlawful purposes; c. Suggest or incite rebellious conspiracies or riots; or d. Lead or tend to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the government Considering that the objective of sedition is to express protest against the government and in the process creating hate against public officers, any act that will generate hatred against the government or a public officer concerned or a social class may amount to Inciting to Sedition. The essence of seditious libel is its immediate tendency to stir up general discontent to the pitch of illegal courses or to induce people to resort to illegal methods in order to redress the evils which press upon their minds. [Espuelas v. People, G.R. No. L-2990 (1951)] “Scurrilous” means low, vulgar, mean or foul. A published writing which calls the government one of crooks and dishonest persons ("dirty") infested with Nazis and Fascists i.e.dictators, and which reveals a tendency toproduce dissatisfaction or a feeling incompatible with the disposition to remain loyal to the government, is a scurrilous libel against the Government. Any citizen may criticize his government and government officials and submit his criticism to the "free trade of ideas." However, such criticism should be specific and therefore constructive specifying particular objectionable actuations of the government; it must be reasoned or tempered, and

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not a contemptuous condemnation of the entire government setup. [Espuelas v. People, supra.] Constitutional Tests relative to seditious words: 1. Clear and Present Danger Rule: The words must be of such nature that by uttering them there is a danger of a public uprising and that such danger should be both clear and imminent. The danger must not only be probable but very likely inevitable. 2. Dangerous Tendency Rule: If the words used tend to create a danger of public uprising, then those words could properly be the subject of a penal clause.

2. Chapter II: Crimes against

Popular Representation

a. Article 143 – Acts Tending to Prevent the Meeting of the Congress of the Philippines and Similar Bodies Elements: 1. There is a projected or actual meeting of Congress or any of its committees or subcommittees, constitutional committees or divisions thereof, or of any provincial board or city or municipal council or board; 2. Offender, who may be any person, prevents such meetings by force or fraud. Nobody has the right to dissolve by means of violence the meeting of a municipal council, under the pretext that said meeting is legally defective, when the defect is not manifest, and requires an investigation before its existence can be determined. Where a municipal council is holding a meeting, a presumption arises that the meeting is not legally defective [People v. Alipit and Alemus, G.R. No. L-18853 (1922)]

b. Article 144 – Disturbance of Proceedings Elements: 1. There is a meeting of Congress or any of its committees or subcommittees, constitutional commissions or committees or divisions thereof, or of any provincial board or city or municipal council or board; 2. Offender does any of the following acts: a. He disturbs any of such meetings;

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b. He behaves while in the presence of any such bodies in such a manner as to interrupt its proceedings or to impair the respect due it. The complaint may be filed by a member of the legislative body. One who disturbs may also be punished for contempt by Congress. It may also be the subject of criminal prosecution.

c. Article 145 – Violation of Parliamentary Immunity Mode 1: Using force, intimidation, threats, or frauds to prevent any member of Congress from attending the meetings of Congress or of any of its committees or subcommittees, constitutional commissions or committees or divisions thereof, or from expressing his opinion or casting his vote; Elements: 1. Offender uses force, intimidation, threats or fraud; 2. The purpose of the offender is to prevent any member of Congress from: a. Attending the meetings of the Congress or of any of its committees or constitutional commissions; b. Expressing his opinion; or c. Casting his vote. Note: The offender in mode 1 may be any person. Mode 2: Arresting or searching any member thereof while Congress is in regular or special session, except in case such member has committed a crime punishable under the Code by a penalty higher than prision mayor. Elements: 1. Offender is a public officer of employee; 2. He arrests or searches any member of Congress; 3. Congress, at the time of arrest or search, is in regular or special session; 4. The member arrested or searched has not committed a crime punishable under the Code by a penalty higher than prision mayor. Parliamentary immunity does not protect members of Congress from responsibility in accordance with the disciplinary rules of Congress itself. Members of Congress cannot be arrested for offenses punishable by a penalty less than prision mayor (6 years and 1 day to 12 years), while Congress is in session.

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They can be prosecuted after Congress adjourns. [Constitution]

2.

To be consistent with the 1987 Constitution, the phrase by “a penalty higher than prision mayor” in Article 145 should be amended to read “by the penalty of prision mayor or higher.” [Reyes]

Note: Not all persons present at the meeting of the first form of illegal assembly must be armed.

3. Chapter III: Illegal

The following 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.

Assemblies and Associations

a. Article 146 – Illegal Assemblies Mode 1: Any meeting attended by armed persons for the purpose of committing any of the crimes punishable under the Code. Elements: 1. There is a meeting, a gathering or group of persons, whether in a fixed place or moving; 2. The meeting is attended by armed persons; 3. The purpose of the meeting is to commit any of the crimes punishable under the Code. Mode 2: Any meeting in which the audience, whether armed or not, is incited to the commission of the crime of treason, rebellion or insurrection, sedition, or assault upon person in authority or his agents. Elements: 1. There is a meeting, a gathering or group of persons, whether in a fixed place or moving; 2. The audience, whether armed or not, is incited to the commission of the crime of treason, rebellion or insurrection, sedition or direct assault. Persons liable for illegal assembly: 1. The organizer or leaders of the meeting; 2. Persons merely present at the meeting, who must have a common intent to commit the felony of illegal assembly. In the first form of illegal assembly, the persons present at the meeting must be armed. The law does not require that all the persons present must be armed. The unarmed persons present at the meeting are also liable. Presumptions if a person carried an unlicensed firearm: 1. The purpose of the meeting insofar as he is concerned is to commit acts punishable under the RPC

He is considered a leader or organizer of the meeting.

b. Article 147 – Illegal Associations

Persons liable: 1. Founders, directors and president of the association; 2. Mere members of the association. Public Morals – matters which affect the interest of society and public convenience, not limited to good customs Illegal Assemblies v. Illegal Associations Illegal Assembly Illegal Association There must be an actual Actual meeting meeting or assembly necessary

not

What is punished is the What is punished are the act of forming or meeting and the organizing the attendance therein association Persons liable: 1. organizers or leaders Persons liable: of the meeting 1. founders, directors, Organizers or president leaders of the Founders, meeting directors, president 2. persons present at 2. members The the meeting members Persons present BATAS PAMBANSA Assembly Act of 1985

BLG.

880/

Public

Non-interference by law enforcement authorities Law enforcement agencies shall not interfere with the holding of a public assembly. However, to adequately ensure public safety, a law enforcement contingent under the command of a responsible police officer may be detailed and stationed in a place at least one hundred (100) meters away from the area of activity ready to maintain peace and order at all times. [Sec. 9, B.P. Blg. 880]

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Police assistance when requested It shall be imperative for law enforcement agencies, when their assistance is requested by the leaders or organizers, to perform their duties always mindful that their responsibility to provide proper protection to those exercising their right peaceably to assemble and the freedom of expression is primordial. Towards this end, law enforcement agencies shall observe the following guidelines: 1. Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with their nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform and must observe the policy of "maximum tolerance" as herein defined; 2. The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards; 3. Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public assembly is attended by actual violence or serious threats of violence, or deliberate destruction of property. . [Sec. 10, B.P. Blg. 880] Dispersal of public assembly with permit No public assembly with a permit shall be dispersed. However, when an assembly becomes violent, the police may disperse such public assembly as follows: 1. At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention of the leaders of the public assembly and ask the latter to prevent any possible disturbance; 2. If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the police or at the non-participants, or at any property causing damage to such property, the ranking officer of the law enforcement contingent shall audibly warn the participants that if the disturbance persists, the public assembly will be dispersed; 3. If the violence or disturbances prevailing as stated in the preceding subparagraph should not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a warning to the participants of the public assembly, and after allowing a reasonable period of time to lapse, shall immediately order it to forthwith disperse; 4. No arrest of any leader, organizer or participant shall also be made during the public assembly unless he violates during the assembly a law, statute, ordinance or any provision of this Act.

5.

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Such arrest shall be governed by Article 125 of the Revised Penal Code, as amended: Isolated acts or incidents of disorder or branch of the peace during the public assembly shall not constitute a group for dispersal. [Sec. 11, B.P. Blg. 880]

Dispersal of public assembly without permit When the public assembly is held without a permit where a permit is required, the said public assembly may be peacefully dispersed. [Sec. 12, B.P. Blg. 880] Prohibited acts The following shall constitute violations of this Act: 1. The holding of any public assembly as defined in this Act by any leader or organizer without having first secured that written permit where a permit is required from the office concerned, or the use of such permit for such purposes in any place other than those set out in said permit: Provided, however, That no person can be punished or held criminally liable for participating in or attending an otherwise peaceful assembly; 2. Arbitrary and unjustified denial or modification of a permit in violation of the provisions of this Act by the mayor or any other official acting in his behalf. 3. The unjustified and arbitrary refusal to accept or acknowledge receipt of the application for a permit by the mayor or any official acting in his behalf; 4. Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly; 5. The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public assembly; 6. Acts in violation of Section 10 hereof; 7. Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public assembly or on the occasion thereof: a. the carrying of a deadly or offensive weapon or device such as firearm, pillbox, bomb, and the like; b. the carrying of a bladed weapon and the like; c. the malicious burning of any object in the streets or thoroughfares; d. the carrying of firearms by members of the law enforcement unit; e. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle, its horns and loud sound systems. [Sec. 13, B.P. Blg. 880]

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4. Chapter IV: Assault upon

and Resistance and Disobedience to, Persons in Authority and Their Agents

a. Article 148 – Direct Assault Mode 1. Without public uprising, by employing force or intimidation for the attainment of any of the purposes enumerated in defining the crimes of rebellion and sedition; Elements: 1. Offender employs force or intimidation; 2. The aim of the offender is to attain any of the purposes of the crime of rebellion or any of the objects of the crime of sedition; 3. There is no public uprising. Mode 2. Without public uprising, by attacking, by employing force or by seriously intimidating or by seriously resisting any person in authority or any of his agents, while engaged in the performance of official duties, or on occasion of such performance. Elements: 1. Offender makes an attack, employs force, makes a serious intimidation, or makes a serious resistance; 2. The person assaulted is a person in authority or his agent; 3. At the time of the assault, the person in authority or his agent is engaged in the actual performance of official duties, or that he is assaulted by reason of the past performance of official duties; 4. Offender knows that the one he is assaulting is a person in authority or his agent in the exercise of his duties. 5. There is no public uprising. The first form of direct assault is tantamount to rebellion or sedition, except that there is no public uprising. Classifications of direct assault: 1. Simple assault 2. Qualified assault. Assault is qualified when: 1. There is a weapon employed in the attack 2. The offender is a public officer 3. The offender lays hands on a public authority

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A “person in authority” is any person directly vested with jurisdiction, whether as an individual or as a member of some court or governmental corporation, board, or commission, shall be deemed a person in authority. It is not necessary that the person in authority who was assaulted be actually performing official duties. If the person in authority or his agent is attacked in the performance of his official duty, the motive of the offender is immaterial. If such person is attacked when not in the actual performance of his official duty, evidence of motive of the offender is important. One “directly vested with jurisdiction” has the power or authority to govern and execute the laws. Teachers, professors and persons in charge with the supervision of public or duly recognized private schools, colleges and universities shall be deemed persons in authority, in applying the provisions of Articles 148 and 151. For other purposes, such as to increase the penalty by reason of the aggravating circumstances where a person in authority is involved, the teachers and professors are not persons in authority. [Art. 152 RPC as amended by B.P. Blg. 873] When the assault results in the killing of that agent or of a person in authority, the offense committed is complex crime of direct assault with murder or homicide. The only time when it is not complexed is when material consequence is a light felony, that is, slight physical injury. Direct assault absorbs the lighter felony. The force employed need not be serious when the offended party is a person in authority. Intimidation or resistance must be serious whether the offended party is a person in authority or an agent of a person in authority. The resistance must be active. If the public officer is not a person in authority, the assault on him is an aggravating circumstance in Art. 14, no. 3 (rank). There must be, however, intent to disregard the victim’s rank. [Boado] Gabutero was acting in the performance of his duties [as he was trying to pacify Dollantes who was causing trouble] as barangay captain when he was stabbed to death. Thus, the crime committed was murder with assault upon a person in authority. [People v. Dollantes, G.R. No. 70639 (1987)]

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b. Article 152 – Persons in Authority and Agents of Persons in Authority Public Officer (Art. 203)

Persons in Authority (Art. 152)

Any person who takes part in the performance of public functions in the government.

Any person directly vested with jurisdiction, whether as an individual or as a member of some court or governmental corporation, board or commission.

Agents of a Person in Authority (Art. 152) Any person who, by direct provision of law or by election or by appointment by competent authority, is charged with the maintenance of public order and the protection and security of life and property.

A person in authority includes a barangay chairman and members of the Lupong Tagapagkasundo as provided under the Local Government Code. [Boado] The status as a person in authority being a matter of law, ignorance thereof is no excuse. Where a barangay chief tanod was a mere bystander at the crime scene, he not acting, and had no occasion to act, in the performance of his official duties, the attack on him did not amount to direct assault. [People v. Recto, supra]

c. Article 149 – Indirect Assault Elements: 1. A person in authority or his agent is the victim of any of the forms of direct assault defined in Article 148; 2. A person comes to the aid of such authority or his agent; 3. Offender makes use of force or intimidation upon such person coming to the aid of the authority or his agent. Indirect assault can only be committed when a direct assault is also committed. Art. 152 clothes any person who comes to the aid of a person in authority with the fiction of an agent of a person in authority.

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Any assault on him on the occasion of his aiding a person in authority or his agent is indirect assault.

d. Article 150 – Disobedience to Summons Issued by Congress, Its Committees or Subcommittees, by the Constitutional Commissions, Its Committees, Subcommittees or Divisions Mode 1: By refusing, without legal excuse, to obey summons of Congress, its special or standing committees and subcommittees, the Constitutional Commissions and its committees, subcommittees or divisions, or by any commission or committee chairman or member authorized to summon witnesses; Mode 2: By refusing to be sworn or placed under affirmation while being before such legislative or constitutional body or official; Mode 3: By refusing to answer any legal inquiry or to produce any books, papers, documents, or records in his possession, when required by them to do so in the exercise of their functions; Mode 4: By restraining another from attending as a witness in such legislative or constitutional body; Mode 5: By inducing disobedience to a summons or refusal to be sworn by any such body or official. The testimony of a person summoned must be upon matters into which the legislature has jurisdiction to inquire.

e. Article 151 – Resistance and Disobedience to a Person in Authority or the Agents of Such Persons Mode 1: Resistance and serious disobedience Elements: 1. A person in authority or his agent is engaged in the performance of official duty or gives a lawful order to the offender;

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2. 3.

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Offender resists or seriously disobeys such person in authority or his agent; The act of the offender is not included in the provision of Articles 148, 149 and 150.

Mode 2:

Simple disobedience

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5. Chapter V: Public Disorders a. Article 153 – Tumults and Other Disturbances of Public Order

Elements: 1. An agent of a person in authority is engaged in the performance of official duty or gives a lawful order to the offender; 2. Offender disobeys such agent of a person in authority; 3. Such disobedience is not of a serious nature.

Mode 1: Causing any serious disturbance in a public place, office or establishment;

Resistance and Serious Disobedience The accused must have knowledge that the person giving the order is a peace officer. [US v. Bautista, supra.]

Mode 3: Making any outcry tending to incite rebellion or sedition in any meeting, association or public place;

The disobedience contemplated consists in the failure or refusal to obey a direct order from the authority or his agent. Simple Disobedience In simple disobedience, the offended party must be only an agent of a person in authority. The order must be lawful. The disobedience should not be of a serious nature. Serious Disobedience v. Direct Assault Serious Disobedience Direct Assault Person in authority or his agent must be engaged in Person in authority or his the performance of agent must be in actual official duties or he is performance of his duties assaulted by reason of the past performance of official duties Committed only by Committed in four ways resisting or seriously (see Art. 148, Mode 2 disobeying a person in above) authority or his agent Use of force in resistance There is force employed is not so serious

Mode 2: Interrupting or disturbing performances, functions or gatherings, or peaceful meetings, if the act is not included in Arts. 131 and 132;

Mode 4: Displaying placards or emblems which provoke a disturbance of public order in such place; Mode 5: Burying with pomp the body of a person who has been legally executed. Serious disturbance must be planned or intended. This article applies if the disturbance is not caused by a public officer; or, if it is committed by a public officer, he is a participant therein. Outcry – to shout subversive or provocative words tending to stir up the people to obtain by means of force or violence any of the objects of rebellion or sedition. If done unconsciously or without intent to incite the listeners to rise to sedition or rebellion, this article applies. If done with intent to commit rebellion or sedition: The crime is inciting to rebellion or sedition. Tumultuous – if caused by more than 3 persons (at least four) who are armed or provided with the means of violence Burying with pomp the body of a person – ostentatious display of a burial

b. Article 154 – Unlawful Use of Means of Publication and Unlawful Utterances Mode 1: Publishing or causing to be published, by means of printing, lithography or any other Page 158 of 309

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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; Mode 2: Encouraging disobedience to the law or to the constituted authorities or praising, justifying or extolling any act punished by law, by the same means or by words, utterances or speeches; Mode 3: Maliciously publishing or causing to be published any official document or resolution without proper authority, or before they have been published officially; Mode 4: Printing, publishing or distributing (or causing the same) books, pamphlets, periodicals, or leaflets which do not bear the real printer’sname, or which are classified as anonymous. To be liable, the offender must know that the news is false. If he does not know that the news is false, he is not liable, there being no criminal intent. Actual public disorder or actual damage to the credit of the State is not necessary. The mere possibility of causing such danger or damage is sufficient.

c. Article 155 – Alarms and Scandals Mode 1: Discharging any firearm, rocket, firecracker, or other explosive within any town or public place, calculated to cause (which produces) alarm or danger; Mode 2: Instigating or taking an active part in any charivari or other disorderly meeting offensive to another or prejudicial to public tranquility; Mode 3: Disturbing the public peace while wandering about at night or while engaged in any other nocturnal amusements; Mode 4: Causing any disturbances or scandal in public places while intoxicated or otherwise, provided Art. 153 is not applicable. The crime “alarms and scandal” is only one crime. Scandal here does not refer to moral scandal; that refers to grave scandal in Article 200. The essence of the crime is disturbance of public tranquility and public peace. Disturbance of a serious

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nature falls under Article 153, not under paragraph 4 of this article. Any kind of disturbance of public order where the circumstance at the time renders the act offensive to the tranquility prevailing, the crime is committed. Charivari – includes a medley of discordant voices, a mock serenade of discordant noises made on kettles, tin, horns, etc. designed to annoy or insult Note: “Calculated to cause” should be “which produces” alarm and danger according to the correct translation of the RPC. Hence, the result, and not the intent, that counts. [Reyes]

d. Article 156 – Delivering Prisoners from Jail Elements: 1. There is a person confined in a jail or penal establishment; 2. Offender removes therefrom such person, or helps the escape of such person. If the prisoner who escapes is only a detention prisoner, he does not incur liability from escaping if he does not know of the plan to remove him from jail. But if such prisoner knows of the plot to remove him from jail and cooperates therein by escaping, he himself becomes liable for delivering prisoners from jail as a principal by indispensable cooperation. If the prisoner removed or whose escape is made possible by the commission of the crime of delivering prisoner from jail is a detention prisoner, such prisoner is not criminally liable. A prisoner is criminally liable for leaving the penal institution only when there is evasion of the service of his sentence which can be committed only by a convict by final judgment. Offender is usually an outsider. The violation of Article 156 is committed by a public officer when he is not the custodian of the prisoner at the time the prisoner was made to escape. If the offender is a public officer who had the prisoner in his custody or charge, he is liable for infidelity in the custody of a prisoner under Article 223. If three persons are involved – a stranger, the custodian and the prisoner – three crimes are committed: 1. Infidelity in the custody of prisoners [public officer-custodian]; 2. Delivery of the prisoner from jail [stranger]; and 3. Evasion of service of sentence [prisoner].

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Cledera, as the governor, is the jailer of the Province. Esmeralda is the Assistant Provincial Warden. As public officials who have the custody or charge of the prisoner, they cannot be prosecuted under Art. 156. Art 223 would have applied; however, there is no sufficient evidence to warrant their prosecution for infidelity in the custody of prisoner. It is necessary that the public officer had consented to, or connived in, the escape of the prisoner under his custody or charge. [Alberto v. Dela Cruz, G.R. No. L-31839 (1980)]

6. Chapter VI: Evasion of

Service of Sentence

a. Article 157 – Evasion of Service of Sentence Elements: 1. Offender is a convict by final judgment; 2. He is serving sentence which consists in the deprivation of liberty; 3. He evades service of his sentence by escaping during the term of his imprisonment. Qualifying circumstances as to penalty imposed if such evasion or escape takes place: 1. By means of unlawful entry (this should be “by scaling” – Reyes); 2. By breaking doors, windows, gates, walls, roofs or floors; 3. By using picklock, false keys, disguise, deceit, violence or intimidation; or 4. Through connivance with other convicts or employees of the penal institution. Evasion of service of sentence has three forms: 1. Article 157 - By simply leaving or escaping from the penal establishment 2. Article 158 - By failing to return within 48 hours after having left the penal establishment because of a calamity, conflagration or mutiny and such calamity, conflagration or mutiny has been announced as already passed 3. Article 159 - By violating one’s conditional pardon That the prisoner immediately returned after leaving or escaping from jail or prison is immaterial. It may be mitigating, but it will not absolve his criminal liability.

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Not applicable to sentence executed by deportation because the convict was not sentenced to imprisonment and thereafter broke jail. Applicable to sentence of destierro - Inasmuch as the Revised Penal Code was originally approved and enacted in Spanish, the Spanish text governs. The word "imprisonment" used in the English text is a wrong or erroneous translation of the phrase "sufriendo privacion de libertad" used in the Spanish text. Although destierro does not constitute imprisonment, it is a deprivation of liberty, though partial, in the sense that as in the present case, the appellant by his sentence of destierro was deprived of the liberty to enter the City of Manila. One who, sentenced to destierro by virtue of final judgment, and prohibited from entering the City of Manila, enters said city within the period of his sentence, is guilty of evasion of sentence under Article 157. [People v. Abilong, supra]

b. Article 158 – Evasion of Service of Sentence on the Occasion of Disorders, Conflagrations, Earthquakes, or Other Calamities Elements: 1. Offender is a convict by final judgment, who is confined in a penal institution; 2. There is disorder, resulting from – a. conflagration; b. earthquake; c. explosion; d. similar catastrophe; or e. mutiny in which he has not participated; 3. He evades the service of his sentence by leaving the penal institution where he is confined, on the occasion of such disorder or during the mutiny; 4. He fails to give himself up to the authorities within 48 hours following the issuance of a proclamation by the Chief Executive announcing the passing away of such calamity. 5. Leaving the penal establishment is not the basis of criminal liability. What is punished is the failure to return within 48 hours after the passing of the calamity, conflagration or mutiny had been announced. Under Article 158, those who return within 48 hours are given credit or deduction from the remaining period of their sentence equivalent to 1/5 of the original term of the sentence.

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If the prisoner fails to return within said 48 hours, there will be an additional penalty of 1/5 of the time still remaining to be served under the original sentence. In no case shall that penalty exceed six months. Mutiny is one of the causes which may authorize a convict serving sentence in the penitentiary to leave the jail provided he has not taken part in the mutiny.

c. Article 159 – Other Cases of Evasion of Service of Sentence Elements: 1. 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. A conditional pardon is a contract between the Chief Executive, who grants the pardon, and the convict, who accepts it. Since it is a contract, the pardoned convict is bound to fulfill its conditions and accept all its consequences according to its strict terms. [People v. Pontillas, G.R. No. L-45267 (1938)] Violation of conditional pardon is a distinct crime. In violation of conditional pardon, as a rule, the violation will amount to this crime only if the condition is violated during the remaining period of the sentence. Offender must be found guilty of subsequent offense before he can be prosecuted under Article 159. [Torres v. Gonzales, G.R. No. 76872 (1987)] If the condition of the pardon is violated when the remaining unserved portion of the sentence has already lapsed, there will be no more criminal liability for the violation. However, the convict maybe required to serve the unserved portion of the sentence, that is, continue serving original penalty. Violation of Conditional Pardon v. Evasion of Service of Sentence by Escaping Violation of Conditional Evasion of Service of Pardon Sentence Does not cause harm or injury to the right of another person nor does it disturb the public order; merely an infringement of the stipulated terms in conditional pardon

An attempt at least to evade the penalty inflicted by the courts upon criminals and thus defeat the purpose of the law of either reforming or punishing them for having disturbed the public order.

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7. Chapter VII: Commission of

Another Crime during Service of Penalty Imposed for Another Previous Offense

a. Article 160 – Quasi-Recidivism Elements: 1. 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. Quasi-recidivism is a special aggravating circumstance where a person, after having been convicted by final judgment, shall commit a new felony before beginning to serve such sentence, or while serving the same. He shall be punished by the maximum period of the penalty prescribed by law for the new felony. The first crime for which the offender is serving sentence need not be a felony. [People v. Peralta, G.R. No. L-19069 (1968)] The word “another” does not mean that the new felony be different from the one for which the offender is serving sentence [People v. Yabut, 58 Phil. 499 (1933)] Quasi-Recidivism The 2 offenses need not be embraced in the same title of the Code

Recidivism The 2 offenses must be embraced in the same title of the Code

Quasi-Recidivism Offender committed a new felony before beginning to serve such sentence or while serving the same

Reiteracion Offender must have served out the sentence for the prior offense

PD 1866 (AS AMENDED BY RA 8294): ILLEGAL POSSESSION OF FIREARMS

Sec. 1. Unlawful manufacture, sale, acquisition, disposition or possession of firearms or ammunition or instruments used or intended to be used in the manufacture of firearms or ammunition.— The penalty of prision

correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully

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manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed. The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested. If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. If the violation of this section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup d’état, such violation shall be absorbed as an element of the crime of rebellion, or insurrection, sedition, or attempted coup d’état. The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or firearms without any legal authority to be carried outside of their residence in the course of their employment. The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor. (Repealed by RA 10591)

Sec. 2. Presumption of Illegal Manufacture of Firearms or Ammunition.— The possession of

any machinery, tool or instrument used directly in the manufacture of firearms or ammunition, by any person whose business or employment does

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not lawfully deal with the manufacture of firearms or ammunition, shall be prima facie evidence that such article is intended to be used in the unlawful/illegal manufacture of firearms or ammunition. (Repealed by RA 10591)

Sec. 3. Unlawful manufacture, sale, acquisition, disposition or possession of explosives. — The penalty of prision mayor in its maximum period to reclusion temporal and a fine of not less than Fifty thousand pesos (P50,000) shall be imposed upon any person who shall unlawfully manufacture, assemble, deal in, acquire, dispose or possess hand grenade(s), rifle grenade(s), and other explosives, including but not limited to 'pillbox,' 'molotov cocktail bombs,' 'fire bombs,' or other incendiary devices capable of producing destructive effect on contiguous objects or causing injury or death to any person.

When a person commits any of the crimes defined in the Revised Penal Code or special laws with the use of the aforementioned explosives, detonation agents or incendiary devices, which results in the death of any person or persons, the use of such explosives, detonation agents or incendiary devices shall be considered as an aggravating circumstance. If the violation of this Sec. is in furtherance of, or incident to, or in connection with the crime of rebellion, insurrection, sedition or attempted coup d'etat, such violation shall be absorbed as an element of the crimes of rebellion, insurrection, sedition or attempted coup d'etat. The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the explosives owned by such firm, company, corporation or entity, to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs

Sec. 3-A. Unlawful Manufacture, Sales, Acquisition, Disposition, Importation or Possession of a Part, Ingredient, Machinery, Tool or Instrument Used or Intended to be Used for the Manufacture, Construction, Assembly, Delivery or Detonation.— The penalty of reclusion perpetua shall be imposed upon any person who shall willfully and unlawfully manufacture, assemble, deal in, acquire, dispose, import or possess any part, ingredient, machinery, tool or instrument of any explosive or incendiary

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device, whether chemical, mechanical, electronic, electrical or otherwise, used or intended to be used by that person for its manufacture, construction, assembly, delivery or detonation, where the explosive or incendiary device is capable or is intended to be made capable of producing destructive effect on contiguous objects or causing injury or death to any person. Provided, That the mere possession of any part, ingredient, machinery, tool or instrument directly used in the manufacture, construction, assembly, delivery or detonation of any explosive or incendiary device, by any person whose business activity, or employment does not lawfully deal with the possession of such article shall be prima facie evidence that such article is intended to be used by that person in the unlawful/illegal manufacture, construction, assembly, delivery or detonation of an explosive or incendiary device. Provided, however, That a temporary incidental, casual, harmless or transient possession or control of any part, machinery, tool or instrument directly used in the manufacture, construction, assembly, delivery or detonation of any explosive or incendiary device, without the knowledge of its existence or character as part, ingredient, machinery, tool or instrument directly used in the manufacture, construction, assembly, delivery or detonation of any explosive or incendiary device, shall not be a violation of this Section. Provided, further, That the temporary, incidental, casual, harmless, or transient possession or control of any part, ingredient, machinery, tool or instrument directly used in the manufacture, construction, assembly, delivery or detonation of any explosive or incendiary device for the sole purpose of surrendering it to the proper authorities shall not be a violation of this Section. Provided, finally, That in addition to the instances provided in the two (2) immediately preceding paragraphs, the court may determine the absence of the intent to possess, otherwise referred to as “animus possidendi”, in accordance with the facts and circumstances of each case and the application of other pertinent laws, among other things, Articles 11 and 12 of the Revised Penal Code, as amended.

Sec. 3-B. Penalty for the Owner, President, Manager, Director or Other Responsible Officer of Any Public or Private Firm, Company, Corporation or Entity.— The

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upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any explosive or incendiary device or parts thereof owned or controlled by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs.

Sec. 3-C. Relationship of Other Crimes with a Violation of this Decree and the Penalty Therefor.— When a violation of Section 3, 3-A or 3-B of this Decree is a necessary means for committing any of the crimes defined in the Revised Penal Code or special laws, or is in furtherance of, incident to, in connection with, by reason of, or on occasion of any of the crimes defined in the Revised Penal Code or special laws, the penalty of reclusion perpetua and a fine ranging from One hundred Thousand pesos (P100,000.00) to One million pesos (P1,000,000.00) shall be imposed.

Sec. 3-D. Former Conviction or Acquittal; Double Jeopardy.— Subject to the provisions of

the Rules of Court on double jeopardy, if the application thereof is more favorable to the accused, the conviction or acquittal of the accused or the dismissal of the case for violation of this Decree shall be a bar to another prosecution of the same accused for any offense where the violation of this Decree was a necessary means for committing the offense or in furtherance of which, incident to which, in connection with which, by reason of which, or on occasion of which, the violation of this Decree was committed, and vice versa.

Sec. 4. Responsibility and liability of Law Enforcement Agencies and Other Government Officials and Employees in Testifying as Prosecution Witnesses.— Any

member of law enforcement agencies or any other government official and employee who, after due notice, fails or refuses, intentionally or negligently, to appear as a witness for the prosecution of the defense in any proceeding, involving violations of this Decree, without any valid reason, shall be punished with reclusion temporal and a fine of Five hundred Thousand pesos (P500,000.00) in addition to the administrative liability he/she may be meted out by his/her immediate superior and/or appropriate body.

penalty of reclusion perpetua shall be imposed

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The immediate superior of the member of the law enforcement agency or any other government employee mentioned in the preceding paragraph shall be penalized with prision correccional and a fine of not less than Ten Thousand pesos (P10,000.00) but not more than Fifty thousand pesos (P50,000.00) and in addition, perpetual absolute disqualification from public office if despite due notice to them and to the witness concerned, the former does not exert reasonable effort to present the latter to the court.

individual for the purpose of implicating, incriminating or imputing the commission of any violation of this Decree.

The member of the law enforcement agency or any other government employee mentioned in the preceding paragraphs shall not be transferred or reassigned to any other government office located in another territorial jurisdiction during the pendency of the case in court. However, the concerned member of the law enforcement agency or government employee may be transferred or reassigned for compelling reasons: Provided, That his/her immediate superior shall notify the court where the case is pending of the order to transfer or reassign, within twenty-four (24) hours from its approval: Provided, further, That his/her immediate superior shall be penalized with prision correccional and a fine of not less than Ten thousand pesos (P10,000.00) but not more than Fifty thousand pesos (P50,000.00) and in addition, perpetual absolute disqualification from public office, should he/she fail to notify the court of such order to transfer or reassign.

penalty of prision correccional shall be imposed upon any person who shall unlawfully repack, alter or modify the composition of any lawfully manufactured explosives.

Prosecution and punishment under this Section shall be without prejudice to any liability for violation of any existing law.

Sec. 4-A. Criminal Liability for Planting of Evidence.— Any person who is found guilty of

“planting” any explosive or incendiary device or any part, ingredient, machinery, tool or instrument of any explosive or incendiary device, whether chemical, mechanical, electronic, electrical or otherwise, shall suffer the penalty of reclusion perpetua. Planting of evidence shall mean the willful act by any person of maliciously and surreptitiously inserting, placing, adding or attaching, directly or indirectly, through any overt or covert act, whatever quantity of any explosive or incendiary device or any part, ingredient, machinery, tool or instrument of any explosive or incendiary device, whether chemical, mechanical, electronic, electrical or otherwise in the person, house, effects or in the immediate vicinity of an innocent

Sec. 5. Tampering of Firearm’s Serial Number.— The penalty of prision correccional shall be imposed upon any person who shall unlawfully tamper, change, deface or erase the serial number of any firearm. (Repealed by RA 10591)

Sec. 6. Repacking or Altering the Composition of Lawfully Manufactured Explosives.— The

Sec. 7. Unauthorized Issuance of Authority to Carry Firearm and/or Ammunition Outside of Residence.— The penalty of prision correccional

shall be imposed upon any person, civilian or military, who shall issue authority to carry firearm and/or ammunition outside of residence, without authority therefor. (Repealed by RA 10591) RA 10591: COMPREHENSIVE FIREARMS AND AMMUNITION REGULATION ACT This Act repeals Sections 1, 2, 5 and 7 of Presidential Decree No. 1866, as amended, and Section 6 of Republic Act No. 8294 and all other laws, executive orders, letters of instruction, issuances, circulars, administrative orders, rules or regulations that are inconsistent herewith (Sec. 45) Penal Provisions

Sec. 28. Unlawful Acquisition, or Possession of Firearms and Ammunition. – The unlawful acquisition, possession of firearms and ammunition shall be penalized as follows: (a) The penalty of prision mayor in its medium period shall be imposed upon any person who shall unlawfully acquire or possess a small arm; (b) The penalty of reclusion temporal to reclusion perpetua shall be imposed if three (3) or more small arms or Class-A light weapons are unlawfully acquired or possessed by any person; (c) The penalty of prision mayor in its maximum period shall be imposed upon any person who shall unlawfully acquire or possess a Class-A light weapon; (d) The penalty of reclusion perpetua shall be imposed upon any person who shall,

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unlawfully acquire or possess a Class-B light weapon; (e) The penalty of one (1) degree higher than that provided in paragraphs (a) to (c) in this section shall be imposed upon any person who shall unlawfully possess any firearm under any or combination of the following conditions: (1) Loaded with ammunition or inserted with a loaded magazine; (2) Fitted or mounted with laser or any gadget used to guide the shooter to hit the target such as thermal weapon sight (TWS) and the like; (3) Fitted or mounted with sniper scopes, firearm muffler or firearm silencer; (4) Accompanied with an extra barrel; and (5) Converted to be capable of firing full automatic bursts. (f) The penalty of prision mayor in its minimum period shall be imposed upon any person who shall unlawfully acquire or possess a major part of a small arm; (g) The penalty of prision mayor in its minimum period shall be imposed upon any person who shall unlawfully acquire or possess ammunition for a small arm or Class-A light weapon. If the violation of this paragraph is committed by the same person charged with the unlawful acquisition or possession of a small arm, the former violation shall be absorbed by the latter; (h) The penalty of prision mayor in its medium period shall be imposed upon any person who shall unlawfully acquire or possess a major part of a Class-A light weapon; (i) The penalty of prision mayor in its medium period shall be imposed upon any person who shall unlawfully acquire or possess ammunition for a Class-A light weapon. If the violation of this paragraph is committed by the same person charged with the unlawful acquisition or possession of a Class-A light weapon, the former violation shall be absorbed by the latter; (j) The penalty of prision mayor in its maximum period shall be imposed upon any person who shall unlawfully acquire or possess a major part of a Class-B light weapon; and (k) The penalty of prision mayor in its maximum period shall be imposed upon any person who shall unlawfully acquire

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or possess ammunition for a Class-B light weapon. If the violation of this paragraph is committed by the same person charged with the unlawful acquisition or possession of a Class-B light weapon, the former violation shall be absorbed by the latter.

Sec. 29. Use of Loose Firearm in the Commission of a Crime. – The use of a loose

firearm, when inherent in the commission of a crime punishable under the Revised Penal Code or other special laws, shall be considered as an aggravating circumstance: Provided, That if the crime committed with the use of a loose firearm is penalized by the law with a maximum penalty which is lower than that prescribed in the preceding section for illegal possession of firearm, the penalty for illegal possession of firearm shall be imposed in lieu of the penalty for the crime charged: Provided, further, That if the crime committed with the use of a loose firearm is penalized by the law with a maximum penalty which is equal to that imposed under the preceding section for illegal possession of firearms, the penalty of prision mayor in its minimum period shall be imposed in addition to the penalty for the crime punishable under the Revised Penal Code or other special laws of which he/she is found guilty. If the violation of this Act is in furtherance of, or incident to, or in connection with the crime of rebellion of insurrection, or attempted coup d’etat, such violation shall be absorbed as an element of the crime of rebellion or insurrection, or attempted coup d’etat. If the crime is committed by the person without using the loose firearm, the violation of this Act shall be considered as a distinct and separate offense.

Sec. 30. Liability of Juridical Person. – The

penalty of prision mayor in its minimum to prision mayor in its medium period shall be imposed upon the owner, president, manager, director or other responsible officer of/any public or private firm, company, corporation or entity who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding section, or willfully or knowingly allow any of them to use unregistered firearm or firearms without any legal authority to be carried outside of their residence in the course of their employment.

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Sec. 31. Absence of Permit to Carry Outside of Residence. – The penalty of prision correccional and a fine of Ten thousand pesos (P10,000.00) shall be imposed upon any person who is licensed to own a firearm but who shall carry the registered firearm outside his/her residence without any legal authority therefor.

Sec. 32. Unlawful Manufacture, Importation, Sale or Disposition of Firearms or Ammunition or Parts Thereof, Machinery, Tool or Instrument Used or Intended to be Used in the Manufacture of Firearms, Ammunition or Parts Thereof. – The penalty

of reclusion temporal to reclusion perpetua shall be imposed upon any person who shall unlawfully engage in the manufacture, importation, sale or disposition of a firearm or ammunition, or a major part of a firearm or ammunition, or machinery, tool or instrument used or intended to be used by the same person in the manufacture of a firearm, ammunition, or a major part thereof. The possession of any machinery, tool or instrument used directly in the manufacture of firearms, ammunition, or major parts thereof by any person whose business, employment or activity does not lawfully deal with the possession of such article, shall be prima facie evidence that such article is intended to be used in the unlawful or illegal manufacture of firearms, ammunition or parts thereof. The penalty of prision mayor in its minimum period to prision mayor in its medium period shall be imposed upon any laborer, worker or employee of a licensed firearms dealer who shall unlawfully take, sell or otherwise dispose of parts of firearms or ammunition which the company manufactures and sells, and other materials used by the company in the manufacture or sale of firearms or ammunition. The buyer or possessor of such stolen part or material, who is aware that such part or material was stolen, shall suffer the same penalty as the laborer, worker or employee. If the violation or offense is committed by a corporation, partnership, association or other juridical entity, the penalty provided for in this section shall be imposed upon the directors, officers, employees or other officials or persons therein who knowingly and willingly participated in the unlawful act.

Sec. 33. Arms Smuggling. – The penalty of reclusion perpetua shall be imposed upon any

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person who shall engage or participate in arms smuggling as defined in this Act.

Sec. 34. Tampering, Obliteration or Alteration of Firearms Identification. – The penalty

of prision correccional to prision mayor in its minimum period shall be imposed upon any person who shall tamper, obliterate or alter without authority the barrel, slide, frame, receiver, cylinder, or bolt assembly, including the name of the maker, model, or serial number of any firearm, or who shall replace without authority the barrel, slide, frame, receiver, cylinder, or bolt assembly, including its individual or peculiar identifying characteristics essential in forensic examination of a firearm or light weapon. The PNP shall place this information, including its individual or peculiar identifying characteristics into the database of integrated firearms identification system of the PNP Crime Laboratory for future use and identification of a particular firearm.

Sec. 35. Use of an Imitation Firearm. – An imitation firearm used in the commission of a crime shall be considered a real firearm as defined in this Act and the person who committed the crime shall be punished in accordance with this Act: Provided, That injuries caused on the occasion of the conduct of competitions, sports, games, or any recreation activities involving imitation firearms shall not be punishable under this Act.

Sec. 36. In Custodia Legis. – During the

pendency of any case filed in violation of this Act, seized firearm, ammunition, or parts thereof, machinery, tools or instruments shall remain in the custody of the court. If the court decides that it has no adequate means to safely keep the same, the court shall issue an order to turn over to the PNP Crime Laboratory such firearm, ammunition, or parts thereof, machinery, tools or instruments in its custody during the pendency of the case and to produce the same to the court when so ordered. No bond shall be admitted for the release of the firearm, ammunition or parts thereof, machinery, tool or instrument. Any violation of this paragraph shall be punishable by prision mayor in its minimum period to prision mayor in its medium period.

Sec. 37. Confiscation and Forfeiture. – The imposition of penalty for any violation of this Act shall carry with it the accessory penalty of confiscation and forfeiture of the firearm, ammunition, or parts thereof, machinery, tool or

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instrument in favor of the government which shall be disposed of in accordance with law.

firearm has been lost or stolen within a period of thirty (30) days from the date of discovery.

Sec. 38. Liability for Planting Evidence. – The

Likewise, a fine of Five thousand pesos (P5,000.00) shall be imposed upon any person holding a valid firearm license who changes residence or office address other than that indicated in the license card and fails within a period of thirty (30) days from said transfer to notify the FEO of the PNP of such change of address.

penalty of prision mayor in its maximum period shall be imposed upon any person who shall willfully and maliciously insert; place, and/or attach, directly or indirectly, through any overt or covert act, any firearm, or ammunition, or parts thereof in the person, house, effects, or in the immediate vicinity of an innocent individual for the purpose of implicating or incriminating the person, or imputing the commission of any violation of the provisions of this Act to said individual. If the person found guilty under this paragraph is a public officer or employee, such person shall suffer the penalty of reclusion perpetua.

Sec. 39. Grounds for Revocation, Cancellation or Suspension of License or Permit. – The

Chief of the PNP or his/her authorized representative may revoke, cancel or suspend a license or permit on the following grounds: (a) Commission of a crime or offense involving the firearm, ammunition, of major parts thereof; (b) Conviction of a crime involving moral turpitude or any offense where the penalty carries an imprisonment of more than six (6) years; (c) Loss of the firearm, ammunition, or any parts thereof through negligence; (d) Carrying of the firearm, ammunition, or major parts thereof outside of residence or workplace without, the proper permit to carry the same; (e) Carrying of the firearm, ammunition, or major parts thereof in prohibited places; (f) Dismissal for cause from the service in case of government official and employee; (g) Commission of any of the acts penalized under Republic Act No. 9165, otherwise known as the “Comprehensive Dangerous Drugs Act of 2002″; (h) Submission of falsified documents or misrepresentation in the application to obtain a license or permit; (i) Noncompliance of reportorial requirements; and (j) By virtue of a court order.

SEC. 41. Illegal Transfer/Registration of Firearms. – It shall be unlawful to transfer possession of any firearm to any person who has not yet obtained or secured the necessary license or permit thereof.

The penalty of prision correccional shall be imposed upon any person who shall violate the provision of the preceding paragraph. In addition, he/she shall be disqualified to apply for a license to possess other firearms and all his/her existing firearms licenses whether for purposes of commerce or possession, shall be revoked. If government-issued firearms, ammunition or major parts of firearms or light weapons are unlawfully disposed, sold or transferred by any law enforcement agent or public officer to private individuals, the penalty of reclusion temporal shall be imposed. Any public officer or employee or any person who shall facilitate the registration of a firearm through fraud, deceit, misrepresentation or submission of falsified documents shall suffer the penalty of prision correccional. See again: RA 9372 (Human Security Act)

Sec. 40. Failure to Notify Lost or Stolen Firearm or Light Weapon. – A fine of Ten thousand pesos (P10,000.00) shall be imposed upon any licensed firearm holder who fails to report to the FEO of the PNP that the subject

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e.

Article 181: False Testimony Favorable to the Defendant Article 182: False Testimony in Civil Cases Article 183: False Testimony in Other Cases and Perjury in Solemn Affirmation Article 184: Offering False Testimony in Evidence Article 185: Machinations in Public Auctions Article 186: Monopolies and Combinations in Restraint of Trade Article 187: Importation and Disposition of Falsely Marked Articles or Merchandise Made of Gold, Silver, or other Precious Metals or their Alloys

D. Title IV. Crimes against Public Interest 1.

f. g.

Acts of Counterfeiting a. Article 161: Counterfeiting the Great Seal of the Government of the Philippine Islands, Forging the Signature or Stamp of the Chief Executive b. Article 162: Using Forged Signature or Counterfeit Seal or Stamp c. Article 163: Making and Importing and Uttering False Coins d. Article 164: Mutilation of Coins e. Article 165: Selling of False or Mutilated Coin, Without Connivance f. Article 167: Counterfeiting, Importing, and Uttering Instruments Not Payable to Bearer g. Article 166: Forging Treasury or Bank Notes or Other Documents Payable to Bearer; Importing and Uttering Such False or Forged Notes and Documents

2.

Acts of Forgery a. Article 168: Illegal Possession and Use of False Treasury or Bank Notes and Other Instruments of Credit b. Article 169: How Forgery is Committed

3.

Acts of Falsification a. Article 170: Falsification of Legislative Documents b. Article 171: Falsification by Public Officer, Employee or Notary or Ecclesiastical Minister c. Article 172: Falsification by Private Individual and Use of Falsified Documents d. Article 173: Falsification of Wireless, Cable, Telegraph and Telephone Messages, and Use of Said Falsified Messages e. Article 174: False Medical Certificates, False Certificates of Merits or Service, etc. f. Article 175: Using False Certificates g. Article 176: Manufacturing and Possession of Instruments or Implements for Falsification

4.

Other Falsities a. Article 177: Usurpation of Authority or Official Functions b. Article 178: Using Fictitious and Concealing True Name c. Article 179: Illegal Use of Uniforms and Insignia d. Article 180: False Testimony Against a Defendant

h. i. j. k.

The crimes in this title are in the nature of fraud or falsity to the public. Deceit perpetrated upon the public is the act being punished.

1. Acts of Counterfeiting a. Article 161 – Counterfeiting the Great Seal of the Government of the Philippine Islands, Forging the Signature or Stamp of the Chief Executive Acts punished: Forging the 1. Great Seal of the Government of the Philippines; 2. Signature of the President; 3. Stamp of the President. When the signature of the president is forged, the crime committed is covered by this provision and not falsification of public document. Intent to use is necessary. Actual use, however, is not required, as long as the forger intended to use it.

b. Article 162 – Using Forged Signature or Counterfeit Seal or Stamp Elements: 1. The Great Seal of the Republic was counterfeited or the signature or stamp of the Chief Executive was forged by another person; 2. Offender knew of the counterfeiting or forgery; 3. He used the counterfeit seal or forged signature or stamp. Note: Offender under this article should not be the forger. Otherwise, he will be penalized under Article

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161. The participation of the offender is in effect that of an accessory. Although the general rule is that he should be punished by a penalty of two degrees lower, under Article 162 he is punished by a penalty only one degree lower.

c. Article 163 – Making and Importing and Uttering False Coins Elements: 1. There be false or counterfeited coins; 2. Offender either made, imported or uttered such coins; 3. In case of uttering such false or counterfeited coins, he connived with the counterfeiters or importers. To utter is to pass counterfeited coins. It includes delivery or the act of giving them away. A counterfeited coin is uttered when it is paid, when the offender is caught counting the counterfeited coins preparatory to the act of delivering them, even though the utterer may not obtain the gain he intended [Decisions of the Supreme Court of Spain] To import fake coins means to bring them into port. The importation is complete before entry at the Customs House. [US v. Lyman, 26 Fed. Cas. 1024] Kinds of coins the counterfeiting of which is punished 1. Silver coins of the Philippines or coins of the Central Bank of the Philippines; 2. Coins of the minor coinage of the Philippines or of the Central Bank of the Philippines; 3. Coin of the currency of a foreign country. The counterfeiting of foreign currency is punishable, regardless of whether or not it is still in official circulation. The reason behind this is not only the harm that it may cause to the public in case it goes into circulation again, but also the possibility that the counterfeiter may later apply his trade to the making of coins in actual circulation. [People v. Kong Leon, C.A., 48 O.G. 664]

d. Article 164 – Mutilation of Coins Acts punished 1. Mutilating coins of the legal currency, with the further requirement that there be intent to damage or to defraud another;

2.

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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.

The first acts of falsification or falsity include: 1. Counterfeiting 2. Forgery 3. Falsification In so far as coins in circulation are concerned, there are two crimes that may be committed: 1. Counterfeiting coins 2. Mutilation of coins Requisites of Mutilation under The RPC: 1. Coin mutilated is of legal tender; 2. Offender gains from the precious metal dust abstracted from the coin; 3. It has to be a coin. “Mutilation” means to take off part of the metal either by filling it or substituting it for another metal of inferior quality. Since the coins before were made of silver and/or other precious metal, shaving the metal from the coins became a practice. Hence, the coin’s intrinsic value is diminished. This is the only article that requires that the mutilated coin be legal tender. Foreign coins are not covered in this article. [Reyes] Deliberate intent arises only when the offender collects the precious metal dust from the mutilated coin. Making and Importing and Uttering (Article 163) Counterfeiting of foreign currency is punishable

Mutilitating (Article 164) Mutilating foreign coins is not punishable under this article

PD 247: Prohibiting and Penalizing Defacement, Mutilation, Tearing, Burning or Destruction of Central Bank Notes and Coins It shall be unlawful for any person to willfully deface, mutilate, tear, burn or destroy, in any manner whatsoever, currency notes and coins issued by the Central Bank of the Philippines.

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e. Article 165 – Selling of False or Mutilated Coin, without Connivance Mode 1: 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. Mode 2: Actually uttering such false or mutilated coin, knowing the same to be false or mutilated. Elements: 1. Actually uttering; and 2. Knowledge. Possession prohibited in this article is not only actual and physical possession, but also that of a constructive one, or the subjection of the thing to one’s control. The possessor should not be the counterfeiter, mutilator or importer of the coins. As long as the offender has knowledge that the coin is false or mutilated, there is no need for him to connive with the counterfeiter or mutilator.

f. Article 166 – Forging Treasury or Bank Notes or Other Documents Payable to Bearer; Importing and Uttering Such False or Forged Notes and Documents Acts punished 1. Forging or falsification of treasury or bank notes or other documents payable to bearer; 2. Importation of such false or forged obligations or notes; 3. Uttering of such false or forged obligations or notes in connivance with the forgers or importers.

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The instrument is payable to bearer: 1. When expressed to be so payable 2. When payable to a person named therein or bearer 3. When payable to the order of a fictitious or nonexisting person, and such fact was known to the person making it so payable 4. When the name of the payee does not purport to be the name of any person 5. When the only or last endorsement is an endorsement in blank. The reason for this is that the forging tends to bring such documents into discredit and the offense produces a lack of confidence on the part of the holders of said documents to the prejudice of society and of the State.

g. Article 167 – Counterfeiting, Importing, and Uttering Instruments Not Payable to Bearer Elements: 1. There is an instrument payable to order or other document of credit not payable to bearer; 2. Offender either forged, imported or uttered such instrument; 3. In case of uttering, he connived with the forger or importer. An instrument is payable to order where it is drawn payable to the order of a specified person or to him or his order. This covers instruments or other documents of credit issued by a foreign government or bank. Forgery of currency is punished so as to maintain integrity of the currency and thus insure the credit standing of the government. Connivance is not required in uttering if the utterer is the forger.

“Forging” – By giving any treasury or bank note, or any instrument payable to bearer, or to order the appearance of a true and genuine document. “Falsification” – By erasing, substituting, counterfeiting or altering by any means, the figures, letters, words, or signs contained therein.

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For possession of false treasury or bank note to constitute a criminal offense, it must be with intent to use.

2. Acts of Forgery a. Article 168 – Illegal Possession and Use of False Treasury or Bank Notes and Other Instruments of Credit Elements: 1. Any treasury or bank note or certificate or other obligation and security: a. Payable to bearer, or any instrument payable to order or other document of credit not payable to bearer is b. Forged or falsified by another person; 2. Offender knows that any of those instruments is forged or falsified; 3. He either – a. Uses any of such forged or falsified instruments; or b. Possesses with intent to use any of such forged or falsified instruments The rule is that if a person had in his possession a falsified document and he made use of it, taking advantage of it and profiting thereby, the presumption is that he is the material author of the falsification. [People v. Sendaydiego, G.R. No. L-33254 (1978)] Possession of false treasury or bank notes alone is not a criminal offense. Intent to use is sufficient to consummate the crime when the offender is in possession of false or falsified notes or obligations. The accused must have knowledge of the forged character of the note.

b. Article 169 – How Forgery is Committed 1.

2.

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; By erasing, substituting, counterfeiting, or altering by any means the figures, letters, words, or sign contained therein.

Forgery includes falsification and counterfeiting.

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The essence of forgery is giving a document the appearance of a true and genuine document. Not any alteration of a letter, number, figure or design would amount to forgery. At most, it would only be frustrated forgery. Possession of genuine treasury notes of the Philippines any of “the figures, letters, words or signs contained” in which had been erased and/or altered, with knowledge of such erasure and alteration, and with the intent to use such notes in enticing another to advance funds for the avowed purpose of financing the manufacture of counterfeit treasury notes of the Philippines, is punishable under Art. 168 in relation to Art. 166 (1). [Del Rosario v. People, G.R. No. L-16806 (1961)] Forgery can be committed through the use of genuine paper bills that have been withdrawn from circulation, by giving them the appearance of some other true and genuine document. [People v. Galano, C.A. 54 O.G. 5899]

3. Acts of Falsification a. Article 170 – Falsification of Legislative Documents Elements: 1. There is a bill, resolution or ordinance enacted or approved or pending approval by either House of the Legislature or any provincial board or municipal council; 2. Offender alters the same; 3. He has no proper authority therefor; 4. The alteration has changed the meaning of the documents. The writing must be: 1. complete in itself; and 2. either: a. capable of extinguishing an obligation or creating rights; or b. capable of becoming evidence of the facts stated therein. Five classes of falsification: 1. Falsification of legislative documents; 2. Falsification of a document by a public officer, employee or notary public;

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3. 4. 5.

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Falsification of a public or official, or commercial documents by a private individual; Falsification of a private document by any person; Falsification of wireless, telegraph and telephone messages.

Falsification v. Forgery Forgery As used in Article 169, forgery refers to the falsification and counterfeiting of treasury or bank notes or any instruments payable to bearer or to order

Falsification The commission of any of the 8 acts mentioned in Article 171 on legislative (only the act if making alteration) public or official, commercial or private documents or wireless or telegraph messages.

b. Article 171 – Falsification by Public Officer, Employee or Notary or Ecclesiastical Minister Elements: 1. Offender is a Public officer, employee, or notary public; 2. He takes advantage of his official position; 3. He falsifies a document by committing any of the following acts: a. Counterfeiting or imitating any handwriting, signature or rubric; b. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate; c. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them; d. Making untruthful statements in a narration of facts; e. Altering true dates; f. Making any alteration or intercalation in a genuine document which changes its meaning; g. Issuing in an authenticated form: • A document purporting to be a copy of an original document • When no such original exists, or • Including in such a copy a statement contrary to, or different from, that of the genuine original; h. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book.

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1st Element: Persons Liable under this Article Under this article, only a public officer, employee or notary public, or ecclesiastical minister can be the offender. The ecclesiastical minister is liable with respect to any record or document that its falsification may affect the civil status of persons. 2nd Element: Offender Take Advantage of his Official Position Offender takes advantage of his official position in falsifying a document when: 1. He has the duty to make or prepare, or intervene in the preparation of the document; or 2. He has the official custody of the document he falsifies. 3rd Element: Offender Falsifies a Document A document is any written statement by which a right or status is established or an obligation is extinguished. Par. 1: Counterfeiting or imitating any handwriting, signature or rubric. 2 ways of committing falsification under this paragraph: 1. Counterfeiting, which is imitating any handwriting, signature or rubric a. There should be an intent to imitate, or an attempt to imitate b. Two signatures, the genuine and the forged, should bear some resemblance. 2. Feigning, which is simulating a signature, handwriting or rubric out of one which does not actually exist. Par. 2: Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate. Requisites: 1. Offender caused it to appear in a document that a person/s participated in an act or proceeding. 2. Such person/s did not in fact participate. Par. 3: Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them Requisites: 1. Person/s participated in an act or proceeding 2. Such person/s made statements in that act or proceeding 3. Offender, in making a document, attributed to such person/s statements other than those they in fact made.

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Par. 4: Making untruthful statements in a narration of facts Requisites: 1. Offender makes in a document statements in a narration of facts 2. He has a legal obligation to disclose truth of facts 3. Facts narrated are absolutely false 4. Perversion of truth in the narration was made with the wrongful intent of injuring a third person. There must be narration of facts, not conclusion of law. There should be a legal obligation to disclose the truth. [Beradio v. CA, G.R. Nos. L-49483-86 (1981)] The person making the narration of facts must be aware of the falsity of facts narrated by him. The narration of facts must be absolutely false. If there is some colorable truth in such statements, crime of falsification is not deemed to have been committed. The existence of a wrongful intent to injure a third person is immaterial in falsification of a public document. [Siquian v. People, G.R. No. 82197 (1989)] There can be falsification by omission. An assistant bookkeeper is guilty of falsification by intentionally not putting a record in his personal account of chits and destroyed them so he could avoid paying the same. [People v. Dizon, G.R. No. 144026 (2006)] Par. 5: Altering true dates 1. 2.

The date must be essential The alteration of the date must affect the veracity of the documents or the effects thereof (such as dates of birth, marriage, or death).

Par. 6: Making any alteration or intercalation in a genuine document which changes its meaning Requisites: 1. There be an alteration (change) or intercalation (insertion) on a document. 2. It was made on a genuine document. 3. Alteration or intercalation has changed the meaning of the document. 4. Change made the document speak something false. Change or insertion must affect the integrity or effects of the document. Furthermore, the alteration should make the document speak something false. Otherwise, it would merely be a correction.

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Par 7: Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such a copy a statement contrary to, or different from, that of the genuine original Falsification in this paragraph cannot be committed by a private individual, or by a notary public, or by a public officer, who does not take advantage of his official position. This is because authentication of a document can only be made by the custodian or the one who prepared and retained a copy of the original. 1. Purporting to be a copy of the original when no such original exists. 2. Including in a copy a statement contrary to, or different from, that of the genuine original. A private person who cooperates with a public officer in the falsification of a public document is guilty of the crime and incurs the same liability and penalty. Par 1

Par 2

Par 3

Par 4

May be a genuine (later falsified) or an entirely fabricated document

May be a genuine (later falsified) or an entirely fabricated document

May be a genuine (later falsified) or an entirely fabricated document

May be a genuine (later falsified) or an entirely fabricated document

Par 5

Par 6

Par 7

Par 8

May be a genuine (later falsified) or an entirely fabricated document

There must be a genuine document

There must be a genuine document

There must be a genuine document

Four Kinds of Documents 1. Public document in the execution of which, a person in authority or notary public has taken part; a. A document created, executed or issued b. By a public official c. In response to the exigencies of the public service, d. Or in execution of w/c public official intervened. 2. Official document in the execution of which a public official takes part; a. A document issued by a public official in the exercise of the functions of his office. It falls

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3. 4.

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within the larger class called public documents. b. A document required by a bureau to be filled by its officers for purposes of record and information is a public document. Commercial document or any document recognized by the Code of Commerce or any commercial law; and A deed or instrument executed by a private person without the intervention of a notary public or other persons legally authorized. Private document in the execution of which only private individuals take part.

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c. Article 172 – Falsification by Private Individual and Use of Falsified Documents Mode 1: Falsification of public, official or commercial document by a private individual;

The element of damage is not necessary because it is the interest of the community which is intended to be guaranteed.

Elements: 1. Offender is a Private individual OR Public officer or employee who did not take advantage of his official position; 2. He committed any act of Falsification (Art. 171); 3. The falsification was committed in a public, official, or commercial document or letter of exchange.

The character of the offender and his faithfulness to his duty is mainly taken into consideration.

Mode 2: Falsification of private document by any person;

Public and Private Writings under The Rules Of Court: 1. Written official acts, or records, of the official acts of the sovereign authority, official bodies and tribunals, and public officers 2. Documents acknowledged before a notary public except last will and testaments 3. Public records kept in the Philippines, of private documents required by law to be entered therein.

Elements: 1. Offender committed any of the acts of Falsification except Article 171(7), that is: a. Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists, or b. Including in such a copy a statement contrary to, or different from, that of the genuine original; 2. Falsification was committed in any Private document; 3. Falsification causes Damage to a third party or at least the falsification was committed with intent to cause such damage.

All other writings are private. After an investigation, a group of public officers were caught and convicted of falsifying cash vouchers. On appeal the SC held that cash vouchers are NOT commercial documents because they are not documents used by merchants or businessmen to promote or facilitate credit transactions nor are they defined and regulated by the Code of Commerce or other commercial law. Rather, they are private documents which have been defined as: 1. Deeds or instruments executed by a private person 2. Without the intervention of a public notary or of other person legally authorized, 3. By which some disposition or agreement is proved, evidenced or set forth. [People v. Batulanon, G.R. No. 13985 (2006)]

Mode 3: Use of falsified document. Elements in introducing in a judicial proceeding 1. Offender knew that the document was falsified by another person; 2. The False document is in Articles 171 or 172 (1 or 2); 3. He Introduced said document in evidence in any judicial proceeding. Elements in use in any other transaction – 1. Offender Knew that a document was falsified by another person; 2. The False document is embraced in Articles 171 or 172 (1 or 2); 3. He Used such document; 4. The use caused Damage to another or at least used with intent to cause damage. In the falsification of public or official documents, it is not necessary that there be present the idea of gain

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or the intent to cause damage. This is because the principal thing punished is the violation of public faith and destruction of the truth as therein solemnly proclaimed. The existence of a wrongful intent to injure a third person is not necessary when the falsified document is a public document. [Siquian v. People, supra.] Note: This statement applies as well to commercial documents, because as to this kind of document, a credit is sought to be protected. [Reyes] Since damage is not an element of falsification of a public document, it could be complexed with estafa, theft or malversation as a necessary means to commit the latter crimes. There is no crime of falsification of private document through negligence or imprudence. If the document is intended by law to be part of the public or official record, the falsification, although it was private at the time of falsification, it is regarded as falsification of a public or official document. Falsification through imprudence implies lack of such intent, thus there is no crime of falsification of a private document through negligence or imprudence. The possessor of a falsified document is presumed to be the author of the falsification. [People v. Manansala, G.R. No. L-38948 (1933)] The presumption also holds if the use was so closely connected in time with the falsification and the user had the capacity of falsifying the document. [People v. Sendaydiego, supra] There is no crime of estafa through falsification of a private document. Both crimes, separately, require the element of damage, which each of the two should have its own. The fraudulent gain obtained through deceit should not be the very same damage caused by the falsification of the private document. In the crime of falsification of a public document, the prescriptive period commences from the time the offended party had constructive notice of the alleged forgery after the document was registered with the Register of Deeds [People v. Villalon, G.R. No. 43659 (1990)]

CRIMINAL LAW

d. Article 173 – Falsification of Wireless, Cable, Telegraph and Telephone Messages, and Use of Said Falsified Messages Mode 1: Uttering fictitious wireless, telegraph or telephone message; Elements: 1. Offender is an officer or employee of the government or an officer or employee of a private corporation, engaged in the service of sending or receiving wireless, cable or telephone message; 2. He utters fictitious wireless, cable, telegraph or telephone message. Mode 2: Falsifying wireless, telegraph or telephone message; Elements: 1. Offender is an officer or employee of the government or an officer or employee of a private corporation, engaged in the service of sending or receiving wireless, cable or telephone message; 2. He falsifies wireless, cable, telegraph or telephone message. Mode 3: Using such falsified message. Elements: 1. Offender knew that wireless, cable, telegraph, or telephone message was falsified by an officer or employee of the government or an officer or employee of a private corporation engaged in the service of sending or receiving wireless, cable or telephone message; 2. He used such falsified dispatch; 3. The use resulted in the prejudice of a third party or at least there was intent to cause such prejudice. The public officer, to be liable, must be engaged in the service of sending or receiving wireless, cable, telegraph or telephone message. A private individual cannot be a principal by direct participation in falsification of telegraphic dispatches under Article 173, unless he is an employee of a corporation engaged in the business of sending or receiving wireless, telegraph or telephone messages. But a private individual can be held criminally liable as principal by inducement.

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e. Article 174 – False Medical Certificates, False Certifcates of Merits of Service, Etc.

g. Article 176 – Manufacturing and Possession of Instruments or Implements for Falsification

Persons liable 1. Physician or surgeon who, in connection with the practice of his profession, issues a false certificate (it must refer to the illness or injury of a person); Note: The crime here is false medical certificate by a physician. 2. Public officer who issues a false certificate of merit of service, good conduct or similar circumstances;

Acts punished: 1. Making or introducing into the Philippines any stamps, dies, marks, or other instruments or implements for counterfeiting or falsification; 2. Possession with intent to use the instruments or implements for counterfeiting or falsification made in or introduced into the Philippines by another person.

Note: The crime here is false certificate of merit or service by a public officer. 3.

Private person who falsifies a certificate falling within the classes mentioned in the two preceding subdivisions. Note: The crime here is false medical certificate by a private individual or false certificate of merit or service by a private individual.

As in Article 165, the possession contemplated here is constructive possession. The implements confiscated need not form a complete set.

4. Other Falsities a. Article 177 – Usurpation of Authority or Official Functions Mode 1: Usurpation of authority. (no connection with the office represented)

f. Article 175 – Using False Certificates Elements: 1. The following issues a false certificate: a. Physician or surgeon, in connection with the practice of his profession, issues a false Medical certificate; b. Public officer issues a false certificate of Merit of service, good conduct or similar circumstances; c. Private Person falsifies a certificate falling within the 2 preceding subdivisions. 2. Offender knows that the certificate was false; 3. He uses the same. When any of the false certificates mentioned in Article 174 is used in a judicial proceeding, Article 172 does not apply, because the use of false document in judicial proceeding under Article 172 is limited to those false documents embraced in Articles 171 and 172.

The mere act of knowingly and falsely representing oneself to be an officer is sufficient. It is not necessary that he perform an act pertaining to a public officer. Elements: 1. Offender knowingly and falsely Represents himself; 2. As an Officer, agent or representative of any department or agency of the Philippine government or of any foreign government. Mode 2: Usurpation of official functions. (excess of authority) In usurpation of official functions, it is essential that the offender should have performed an act pertaining to a person in authority or public officer, in addition to other requirements. Elements 1. Offender performs any act; 2. Pertaining to any person in authority or public officer of the Philippine government or any foreign government, or any agency thereof; 3. Under pretense of official position; 4. Without being lawfully entitled to do so

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The offender should have: 1. represented himself to be an officer, agent or representative of any agency of the government; or 2. performed an act pertaining to a person in authority or public officer. Article 177 may be violated by a public officer.

b. Article 178 – Using Fictitious and Concealing True Name Mode 1: Using fictitious name Elements: 1. Offender uses a name other than his real name; 2. He uses the fictitious name publicly; 3. Purpose of use is to conceal a crime, to evade the execution of a judgment or to cause damage [to public interest – Reyes]. Mode 2: Concealing true name Elements: 1. Offender conceals his true name and other personal circumstances; 2. Purpose is only to conceal his identity. Use of Fictitious Name Element of Publicity

Concealing True Name Publicity not necessary

Purpose is to conceal a Merely crime, evade execution of identity. judgment, cause damage)

to

conceal

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Exact imitation of a uniform or dress is unnecessary; a colorable resemblance calculated to deceive the common run of people is sufficient.

d. Article 180 – False Testimony Against a Defendant Elements: 1. There is a criminal proceeding; 2. Offender testifies falsely under oath against the defendant therein; 3. Offender who gives false testimony Knows that it is false. 4. Defendant against whom the false testimony is given is either acquitted or convicted in a final judgment. The witness who gave the false testimony is liable even if his testimony was not considered by the court. False Testimony – committed by a person who, being under oath and required to testify as to the truth of a certain matter at a hearing before a competent authority, shall deny the truth or say something contrary to it. False testimony is punished because of its tendency to prejudice defendant. Three forms of false testimony: 1. False testimony in criminal cases under Article 180 and 181; 2. False testimony in civil case under Article 182; 3. False testimony in other cases under Article 183.

If the purpose is for causing damage, it must be damage to public interest.

Articles 180-184 punish the acts of making false testimonies because such acts seriously expose society to miscarriage of justice.

If it is damage to private interest, the crime will be estafa under Art 315 2(a).

e. Article 181 – False Testimony Favorable to the Defendant

c. Article 179 – Illegal Use of Uniforms and Insignia

Elements: 1. A person gives false testimony; 2. In favor of the defendant; 3. In a criminal case.

Elements: 1. Offender makes use of insignia, uniforms or dress; 2. The insignia, uniforms or dress pertains to an office not held by such person or a class of persons of which he is not a member; 3. Said insignia, uniform or dress is used publicly and improperly.

The testimony need not in fact be beneficial to the defendant. It is not necessary that the testimony should directly influence the decision of acquittal, it being sufficient that it was given with the intent to favor the accused. Conviction or acquittal of defendant in the principal case is not necessary.

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4. Rectification made spontaneously after realizing the mistake is not false testimony. Penalty for false testimony against the accused is based on the sentence imposed or if accused is acquitted; that for testimony favorable to the accused is based on the imposable penalty. The rationale for the difference is the measure of the wrong occasioned by the injustice in each case, i.e. the undeserved sentence and the imposable penalty avoided, respectively.

f. Article 182 – False Testimony in Civil Cases Elements: 1. Testimony given in a civil case; 2. Testimony relates to the issues presented in said case; 3. Testimony is false; 4. Offender knows that testimony is false; 5. Testimony is malicious 6. And given with an intent to affect the issues presented in said case. Falsity of testimony must first be established. Art. 182 does not apply in special proceedings. These are covered by Art. 183 under “other cases”. Pending the determination of the falsity of the subject testimonies in the civil case, the criminal action for false testimony must perforce be suspended.

g. Article 183 – False Testimony in Other Cases and Perjury in Solemn Affirmation Acts Punished 1. By falsely Testifying under oath; 2. By Making a false affidavit.

The sworn statement or affidavit containing the falsity is Required by law, that is, it is made for a legal purpose.

The statement should be outside the coverage of Art 180-181. Oath – any form of attestation by which a person signifies that he is bound by conscience to perform an act faithfully and truthfully. Affidavit – sworn statement in writing; declaration in writing, made upon oath before an authorized magistrate or officer. There could be no perjury through negligence or imprudence. This is because of the requirement that the assertion of a falsehood be made willfully and deliberately. Hence, good faith or lack of malice is a defense in perjury. It is not necessary that there be a law requiring the statement to be made under oath, as long as it is made for a legal purpose. Perjury is a crime other than false testimony in criminal cases or false testimony in civil cases, which are perversions of truth in judicial proceedings. Perjury is an offense which covers false oaths other than those taken in the course of judicial proceedings. [US v. Estraña, G.R. No. 5751 (1910)] Subornation of perjury is committed by a person who knowingly and willfully procures another to swear falsely and the witness suborned does testify under circumstances rendering him guilty of perjury. [US v. Ballena, 18 Phil. 382] Subornation of perjury is not expressly penalized in the RPC; but the direct induction of a person by another to commit perjury may be punished under Article 183 in relation to Article 17. Material

Note: The false testimony should not be in a judicial proceeding. [Diaz v. People, G.R. No. L-65006 (1990)] Elements of perjury: 1. Offender Makes a statement under oath or executes an affidavit upon a material matter; 2. The statement or affidavit is made Before a competent officer, authorized to receive and administer oaths; 3. Offender makes a Willful and deliberate assertion of a falsehood in the statement or affidavit;

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Relevant

Tends in any reasonable Directed to degree to prove a fact in establish issue probability or improbability of a fact in issue

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Pertinent Concerns collateral matters which make more or less probable the proposition at issue

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h. Article 184 – Offering False Testimony in Evidence Elements: 1. Offender fffers in evidence a false witness or testimony; 2. He knows that the witness or the testimony was false; 3. The offer is made in any judicial or official proceeding. Offer of evidence begins at the moment a witness is called to the stand and interrogated by counsel. The witness must testify.

i. Article 185 – Machinations in Public Auctions Mode 1: Soliciting any gift or promise as a consideration for refraining from taking part in any public auction; Elements: 1. There is a Public auction; 2. Offender Solicits any gift or a promise from any of the bidders; 3. Such gift or promise is the Consideration for his refraining from taking part in that public auction; 4. Offender has the Intent to cause the reduction of the price of the thing auctioned. Mode 2: Attempting to cause bidders to stay away from an auction by threats, gifts, promises or any other artifice. Elements: 1. There is a public auction; 2. Offender attempts to cause the bidders to stay away from that public auction; 3. It is done by threats, gifts, promises or any other artifice; 4. Offender had the Intent to cause the reduction of the price of the thing auctioned The crime is consummated by: 1. Mere solicitation of gift or promise as consideration for not bidding, or 2. By mere attempt to cause prospective bidders to stay away from an auction.

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j. Article 186 – Monopolies and Combinations in Restraint of Trade Note: This article has been repealed by the Philippine Competition Act, which was signed into law on July 21, 2015. Mode 1: Combination to prevent free competition in the market Elements: 1. Entering into any contract or agreement; or taking part in any conspiracy or combination in the form of a trust or otherwise; 2. In restraint of trade or commerce or to prevent by artificial means free competition in the market Mode 2: Monopoly to restrain free competition in the market Elements: 1. Monopolizing any merchandise or object of trade or commerce; or 2. Combining with any other person or persons to monopolize said merchandise or object in order to alter the prices thereof by spreading false rumors or making use of any other artifice to restrain free competition in the market Mode 3: Manufacturer, producer, or processor or importer combining, conspiring or agreeing with any person to make transactions prejudicial to lawful commerce or to increase the market price of merchandise Elements: 1. Person liable: (1) manufacturer, (2) producer, (3) processor, or (4) importer of any merchandise or object of commerce 2. Crime committed by: (1) combining, (2) conspiring, or (3) agreeing with any person 3. Purpose: (1) to make transactions prejudicial to lawful commerce, or (2) to increase the market price of any merchandise or object of commerce manufactured, produced, processed, assembled, or imported into the Philippines Theory of the law: Competition, not combination, should be the law of trade Mere conspiracy or combination is punished.

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If the offense affects any food substance or other article of prime necessity, it is sufficient that initial steps are taken. When offense is committed by a corporation or association, the president and directors or managers are liable.

k. Article 187 – Importation and Disposition of Falsely Marked Articles or Merchandise Made of Gold, Silver, or other Precious Metals or their Alloys Elements: 1. Offender imports, sells or disposes of any of those articles or merchandise (i.e. gold, silver, other precious metals or their alloys) 2. The stamps, brands, or marks of those articles of merchandise fail to indicate the actual fineness or quality of said metals or alloys 3. Offender knows that the stamps, brands, or marks fail to indicate the actual fineness or quality of the metals or alloys

Without right refers to either: (i) conduct undertaken without or in excess of authority; or (ii) conduct not covered by established legal defenses, excuses, court orders, justifications, or relevant principles under the law. [Sec. 3(h), R.A. 10145] b. Illegal Interception. – The interception made by technical means without right of any non-public transmission of computer data to, from, or within a computer system including electromagnetic emissions from a computer system carrying such computer data.

Interception refers to listening to, recording,

monitoring or surveillance of the content of communications, including procuring of the content of data, either directly, through access and use of a computer system or indirectly, through the use of electronic eavesdropping or tapping devices, at the same time that the communication is occurring. [Sec. 3(m), R.A. 10145] c.

RA 10175: An Act Defining Cybercrime, Providing for the Prevention, Investigation, Suppression and the Imposition of Penalties Thereefor and for Other Purposes (Cybercrime Prevention Act of 2012) Note: RA 10175 is specifically mentioned in the 2018 Bar Syllabus PUNISHABLE ACTS 1. Offenses against the confidentiality, integrity and availability of computer data and systems: a. Illegal Access. – The access to the whole or any part of a computer system without right.

Data Interference. — The intentional or

reckless alteration, damaging, deletion or deterioration of computer data, electronic document, or electronic data message, without right, including the introduction or transmission of viruses.

Selling the misbranded articles is not necessary. Article 187 does not apply to manufacturer of misbranded articles – he would be liable for estafa under Art. 315(2)(b).

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d. System Interference. — The intentional alteration or reckless hindering or interference with the functioning of a computer or computer network by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing computer data or program, electronic document, or electronic data message, without right or authority, including the introduction or transmission of viruses.

e. Misuse of Devices.

Access refers to the instruction, communication with, storing data in, retrieving data from, or otherwise making use of any resources of a computer system or communication network. [Sec. 3(a), R.A. 10145]

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1.

The use, production, sale, procurement, importation, distribution, or otherwise making available, without right, of: o A device, including a computer program, designed or adapted primarily for the purpose of committing any of the offenses under this Act; or o A computer password, access code, or similar data by which the whole or any part of a computer system is capable of being accessed with intent that it be used for the

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2.

f.

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purpose of committing any of the offenses under this Act. The possession of an item referred to in paragraphs 5(i)(aa) or (bb) above with intent to use said devices for the purpose of committing any of the offenses under this section.

Cyber-squatting. – The acquisition of a

domain name over the internet in bad faith to profit, mislead, destroy reputation, and deprive others from registering the same, if such a domain name is: 1. Similar, identical, or confusingly similar to an existing trademark registered with the appropriate government agency at the time of the domain name registration: 2. Identical or in any way similar with the name of a person other than the registrant, in case of a personal name; and 3. Acquired without right or with intellectual property interests in it.

related forgery as defined herein, for the purpose of perpetuating a fraudulent or dishonest design. b. Computer-related Fraud. — The unauthorized input, alteration, or deletion of computer data or program or interference in the functioning of a computer system, causing damage thereby with fraudulent intent: Provided, That if no damage has yet been caused, the penalty imposable shall be one (1) degree lower. c.

3. Content-related Offenses: a.

a.

1.

b. Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That the penalty to be imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.

The input, alteration, or deletion of any computer data without right resulting in inauthentic data with the intent that it be considered or acted upon for legal purposes as if it were authentic, regardless whether or not the data is directly readable and intelligible;

Alteration refers to the modification or

change, in form or substance, of an existing computer data or program. [Sec. 3(b), R.A. 10145] 2.

Cybersex. — The willful engagement,

maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.

c.

Computer-related Forgery. —

Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer, possession, alteration or deletion of identifying information belonging to another, whether natural or juridical, without right: Provided, That if no damage has yet been caused, the penalty imposable shall be one (1) degree lower.

2. Computer-related Offenses: Computer refers to an electronic, magnetic, optical, electrochemical, or other data processing or communications device, or grouping of such devices, capable of performing logical, arithmetic, routing, or storage functions and which includes any storage facility or equipment or communications facility or equipment directly related to or operating in conjunction with such device. It covers any type of computer device including devices with data processing capabilities like mobile phones, smart phones, computer networks and other devices connected to the internet. [Sec. 3(d), R.A. 10145]

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Unsolicited Commercial Communications. — The transmission of commercial electronic communication with the use of computer system which seek to advertise, sell, or offer for sale products and services are prohibited unless: 1. There is prior affirmative consent from the recipient; or 2. The primary intent of the communication is for service and/or administrative announcements from the sender to its existing users, subscribers or customers; or 3. The following conditions are present: • The commercial electronic communication contains a simple,

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•

•

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valid, and reliable way for the recipient to reject. receipt of further commercial electronic messages (opt-out) from the same source; The commercial electronic communication does not purposely disguise the source of the electronic message; and The commercial electronic communication does not purposely include misleading information in any part of the message in order to induce the recipients to read the message.

d. Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future. [Sec. 4, R.A. 10145] Other Offenses 1. Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable. 2. Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit any of the offenses enumerated in this Act shall be held liable. [Sec. 5 R.A. 10145] Coverage of the law; aggravating circumstance All crimes defined and penalized by the RPC, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be. [Sec. 6 R.A. 10145] Double jeopardy A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws. [Sec. 7 R.A. 10145] Disclosure of Computer Data Law enforcement authorities, upon securing a court warrant, shall issue an order requiring any person or service provider to disclose or submit subscriber’s information, traffic data or relevant data in his/its possession or control within seventy-two (72) hours from receipt of the order in relation to a valid

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complaint officially docketed and assigned for investigation and the disclosure is necessary and relevant for the purpose of investigation. [Sec. 14, R.A. 10145] Search, Seizure and Examination of Computer Data Where a search and seizure warrant is properly issued, the law enforcement authorities shall likewise have the following powers and duties. [Sec. 15, R.A. 10145] Within the time period specified in the warrant, to conduct interception, as defined in this Act, and: 1. To secure a computer system or a computer data storage medium; 2. To make and retain a copy of those computer data secured; 3. To maintain the integrity of the relevant stored computer data; 4. To conduct forensic analysis or examination of the computer data storage medium; and 5. To render inaccessible or remove those computer data in the accessed computer or computer and communications network. Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the functioning of the computer system and the measures to protect and preserve the computer data therein to provide, as is reasonable, the necessary information, to enable the undertaking of the search, seizure and examination. Law enforcement authorities may request for an extension of time to complete the examination of the computer data storage medium and to make a return thereon but in no case for a period longer than thirty (30) days from date of approval by the court. [Sec. 15, R.A. 10145] Custody of Computer Data All computer data, including content and traffic data, examined under a proper warrant shall, within fortyeight (48) hours after the expiration of the period fixed therein, be deposited with the court in a sealed package, and shall be accompanied by an affidavit of the law enforcement authority executing it stating the dates and times covered by the examination, and the law enforcement authority who may access the deposit, among other relevant data. The law enforcement authority shall also certify that no duplicates or copies of the whole or any part thereof have been made, or if made, that all such duplicates or copies are included in the package deposited with the court. The package so deposited shall not be opened, or the recordings replayed, or used in evidence, or then contents revealed, except upon

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order of the court, which shall not be granted except upon motion, with due notice and opportunity to be heard to the person or persons whose conversation or communications have been recorded. [Sec. 16, R.A. 10145]

E. Title V. Crimes Relative to Opium and Other Prohibited Drugs

Destruction of Computer Data Upon expiration of the periods as provided in Sections 13 and 15, service providers and law enforcement authorities, as the case may be, shall immediately and completely destroy the computer data subject of a preservation and examination. [Sec. 17, R.A. 10145]

Note: Arts. 190-194 were repealed by R.A. 6425, known as the “Dangerous Drugs Act of 1972.” R.A. No. 9165, known as the “Comprehensive Dangerous Drugs Act of 2002” in turn repealed RA No. 6425.

Exclusionary Rule Any evidence procured without a valid warrant or beyond the authority of the same shall be inadmissible for any proceeding before any court or tribunal. [Sec. 18, R.A. 10145]

Dangerous drugs – those listed in: 1. The Schedules annexed to the 1961 Single Convention on Narcotic Drugs, as amended by the 1972 Protocol, and 2. The Schedules annexed to the 1971 Single Convention on Psychotropic Substances as enumerated in the attached annex which is an integral part of this Act. [Sec. 3(j), RA 9165]

Restricting or Blocking Access to Computer Data When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data. . [Sec. 19, R.A. 10145] Liability under P.D. 1829 Failure to comply with the provisions of Chapter IV (Sec. 10-19) hereof specifically the orders from law enforcement authorities shall be punished as a violation of Presidential Decree No. 1829 with imprisonment of prision correctional in its maximum period or a fine of One hundred thousand pesos (Php100,000.00) or both, for each and every noncompliance with an order issued by law enforcement authorities. [Sec. 20, R.A. 10145]

Definition of Important Terms

Chemical Diversion – The sale, distribution, supply or transport of legitimately imported, in-transit, manufactured or procured controlled precursors and essential chemicals, in diluted, mixtures, or in concentrated form, to any person or entity engaged in the manufactured of any dangerous drugs, and shall include packaging, labelling, or concealment of such transaction. Controlled Precursors and Essential Chemicals – Include those listed in Tables I and II of the 188 UN Convention Against Illicit Traffic in Narcotics Drugs and Psychotropic Substances. ACTS PUNISHED 1. Importation of Dangerous Drugs and/or Controlled Precursors and Essential Chemical [Sec. 4] 2. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals [Sec. 5] Elements of sale What determines if there was, indeed, a sale of dangerous drugs is proof of the concurrence of all the elements of the offense, to wit: a. the identity of the buyer and the seller, the object, and the consideration; and b. the delivery of the thing sold and the payment therefor. [People v. Partoza, G.R. No. 182418 (2009)]

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There must be proof that the transaction or sale actually took place and that the corpus delicti be presented in court as evidence. [People v. Musa, G.R. No. 96177 (1993)] 3. Maintenance of a Den, Dive or Resort. [Sec.

6]

4. Employees and Visitors of a Den, Dive or Resort [Sec. 7] 5. Manufacture of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals [Sec. 8] 6. Illegal Chemical Diversion of Controlled Precursors and Essential Chemicals. [Sec. 9] 7. Manufacture or Delivery of Equipment, Instrument, Apparatus, and Other Paraphernalia for Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. [Sec. 10] 8. Possession of Dangerous Drugs [Sec. 11] Elements of possession For an accused to be convicted of illegal possession of prohibited or regulated drugs, the following elements must concur: a. the accused is in possession of an item or object which is identified to be a prohibited drug; b. such possession is not authorized by law; and c. the accused freely and consciously possesses the said drug.[People v. Partoza, supra] 9. Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs [Sec. 12] 10. Possession of Dangerous Drugs During Parties, Social Gatherings or Meetings [Sec. 13] a. the accused was in possession of the dangerous drug, b. such possession is not authorized by law c. the accused freely and consciously possessed the dangerous drug d. the possession of the dangerous drug must have occurred during a party, or at a social gathering or meeting, or in the proximate company of at least two (2) persons [People v. Martinez, G.R. No. 191366 (2010)] 11. Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs During Parties, Social Gatherings or Meetings [Sec. 14] 12. Use of Dangerous Drugs [Sec. 15] 13. Cultivation or Culture of Plants Classified as Dangerous Drugs or are Sources Thereof. [Sec. 16]

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14. Maintenance and Keeping of Original Records of Transactions on Dangerous Drugs and/or Controlled Precursors and Essential Chemicals [Sec. 17] 15. Unnecessary Prescription of Dangerous Drugs [Sec. 18] 16. Unlawful Prescription of Dangerous Drugs [Sec. 19] Penalties for Unlawful Acts 1.

2.

3.

4.

The penalty of life imprisonment to death and a fine ranging from P500,000 to P10,000,000 Those acts which include or involve any dangerous drugs [Secs. 4, 5, 6, 8, 11, 16 and 19] The penalty of 12 years and 1 day to 20 years of imprisonment and a fine ranging from P100,000.00 to P500,000 a. Those acts which involve any controlled precursor and essential chemical [Secs. 4, 5, 6, 8, 9 and 10] b. Anyone who acts as a "protector/ coddler" of any violator of the provisions under sections 4, 5, 6, 8 and 16 c. Sections 7, 10, 16, 17. The maximum penalty provided for under sections 4, 5, 6, 8 and 16 shall be imposed upon any person, who organizes, manages or acts as a "financier" of any of the illegal activities prescribed in those sections. Any person charged under any provision of this Act regardless of the imposable penalty shall not be allowed to avail of the provision on pleabargaining. [Sec. 23, Art. II, RA 9165]

Any person convicted for drug trafficking or pushing under this Act, regardless of the penalty imposed by the Court, cannot avail of the privilege granted by the Probation Law or Presidential Decree No. 968, as amended. [Sec. 24, Art. II, RA 9165] Notwithstanding the provisions of any law to the contrary, a positive finding for the use of dangerous drugs shall be a qualifying aggravating circumstance in the commission of a crime by an offender, and the application of the penalty provided for in the Revised Penal Code shall be applicable. [Sec. 25, Art. II, RA 9165] Any attempt or conspiracy to commit the following unlawful acts shall be penalized by the same penalty prescribed for the commission of the same as provided under this Act [Sec. 26, Art. II, RA 9165]: 1. Importation of any dangerous drug and/or controlled precursor and essential chemical; 2. Sale, trading, administration, dispensation, delivery, distribution and transportation of any

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dangerous drug and/or controlled precursor and essential chemical; 3. Maintenance of a den, dive or resort where any dangerous drug is used in any form; 4. Manufacture of any dangerous drug and/or controlled precursor and essential chemical; 5. Cultivation or culture of plants which are sources of dangerous drugs. The maximum penalties of the unlawful acts provided for in this Act shall be imposed, in addition to absolute perpetual disqualification from any public office, if those found guilty of such unlawful acts are government officials and employees. [Sec. 28, Art. II, RA 9165] Any person who is found guilty of "planting" any dangerous drug and/or controlled precursor and essential chemical, regardless of quantity and purity, shall suffer the penalty of death. [Sec. 29, Art. II, RA 9165] In case any violation of this Act is committed by a partnership, corporation, association or any juridical entity, the partner, president, director, manager, trustee, estate administrator, or officer who consents to or knowingly tolerates such violation shall be held criminally liable as a co-principal. [Sec. 30, Art. II, RA 9165] In addition to the penalties prescribed in the unlawful act committed, any alien who violates such provisions of this Act shall, after service of sentence, be deported immediately without further proceedings, unless the penalty is death. [Sec. 31, Art. II, RA 9165] Accessory Penalties: A person convicted under this Act shall be disqualified to exercise his/her civil rights such as but not limited to: 1. the rights of parental authority or guardianship, either as to the person or property of any ward; 2. the rights to dispose of such property by any act or any conveyance inter vivos, and 3. political rights such as but not limited to the right to vote and be voted for. Such rights shall also be suspended during the pendency of an appeal from such conviction. [Sec. 35, Art. II, RA 9165] Possession of marijuana is absorbed in the sale thereof, except where the seller is further apprehended in possession of another quantity of the prohibited drugs not covered by or included in the sale and which are probably intended for some future

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dealings or use by the seller.[People v. Lacerna, G.R. No. 109250 (1997)] The crime of illegal sale of dangerous drugs necessarily includes the crime of illegal possession of dangerous drugs. The same ruling may also be applied to the other acts penalized under Article II, Section 5 of Republic Act No. 9165 because for the accused to be able to trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit, or transport any dangerous drug, he must necessarily be in possession of said drugs. [People v. Maongco, G.R. No. 196966 (2013)] IMMUNITY FROM PROSECUTION AND PUNISHMENT Requisites: 1. Any person who has violated Sections 7, 11, 12, 14, 15, and 19, Article II of this Act; 2. Who voluntarily gives information about any violation of Sections 4, 5, 6, 8, 10, 13, and 16, Article II of this Act as well as any violation of the offenses mentioned if committed by a drug syndicate, or any information leading to the whereabouts, identities and arrest of all or any of the members thereof; 3. Who willingly testifies against such persons as described above, shall be exempted from prosecution or punishment for the offense with reference to which his/her information of testimony were given, and may plead or prove the giving of such information and testimony in bar of such prosecution: Provided the following conditions concur: a. The information and testimony are necessary for the conviction of the persons described above; b. Such information and testimony are not yet in the possession of the State; c. Such information and testimony can be corroborated on its material points; d. The informant or witness has not been previously convicted of a crime involving moral turpitude, except when there is no other direct evidence available for the State other than the information and testimony of said informant or witness; e. The informant or witness shall strictly and faithfully comply without delay, any condition or undertaking, reduced into writing, lawfully imposed by the State as further consideration for the grant of immunity from prosecution and punishment.

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Provided, further, That this immunity may be enjoyed by such informant or witness who does not appear to be most guilty for the offense with reference to which the information or testimony were given: Provided, finally, That there is no direct evidence available for the State except for the information and testimony of said informant or witness. [Sec. 33, Art. II, RA 9165] Termination of Grant of Immunity [Sec. 34, Art. II, RA 9165]: 1. The immunity granted to the informant or witness, as prescribed in Section 33 of this Act, shall not attach should it turn out subsequently that the information and/or testimony is false, malicious or made only for the purpose of harassing, molesting or in any way prejudicing the persons described in the preceding Section against whom such information or testimony is directed. In such case, the informant or witness shall be subject to prosecution and the enjoyment of all rights and benefits previously accorded him under this Act or any other law, decree or order shall be deemed terminated. 2. In case an informant or witness under this Act fails or refuses to testify without just cause, and when lawfully obliged to do so, or violate any condition accompanying such immunity as provided above, his/her immunity shall be removed and he/she shall likewise be subject to contempt and/or criminal prosecution, as the case may be, and the enjoyment of all rights and benefits previously accorded him under this Act or in any other law, decree or order shall be deemed terminated. Custody and Disposition of Seized Substances The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner [Sec. 21, Art. II, RA 9165]: 1. The apprehending team shall physically inventory and photograph the same in the presence of the accused, his representative or counsel, a representative from the media or the DOJ, and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; (as amended by RA NO. 10640; see also People v Oliva, G.R. No. 234156, Jan. 7, 2019) 2. Within 24 hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as paraphernalia and/or laboratory equipment, the same shall be

3.

4. 5.

6.

7.

8.

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submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination; A certification of the results, done under oath by the forensic laboratory examiner, shall be issued within 24 hours after receipt of the subject items. When the volume of the subject does not allow the completion of testing within 24 hours, a partial report shall be issued stating therein the quantity of dangerous drugs still to be examined by the forensic laboratory; and a final certification shall be issued on the completed forensic laboratory examination on the same within the next 24 hours; Filing of the criminal case in court. The Court shall, within 72 hours, conduct an ocular inspection of the confiscated, seized and/or surrendered items, including the instruments and/or laboratory equipment; The PDEA shall then within 24 hours proceed with the destruction or burning of the same, in the presence of the accused, his his/her representative or counsel, a representative from the media and the DOJ, civil society groups and any elected public official. The Board shall then issue a sworn certification to the fact of destruction or burning of the subject items which, together with the representative samples in the custody of the PDEA, shall be submitted to the court having jurisdiction over the case. In all instances, the representative sample/s shall be kept to a minimum quantity as determined by the Board; After the promulgation and judgment in the criminal case wherein the representative sample/s was presented as evidence in court, the trial prosecutor shall inform the Board of the final termination of the case and, in turn, shall request the court for leave to turn over the said representative sample/s to the PDEA for proper disposition and destruction within 24 hours from receipt of the same.

Chain of Custody – the duly recorded authorized movements and custody of subject items at each stage, from the time of seizure to presentation to the court for destruction. Such record of movements and custody of seized items shall include the identity and signature of the person who held temporary custody of the seized items, the date and time when such transfer of custody was made in the course of safekeeping and use in court as evidence, and the final disposition. [Sec. 1b, DDB Resolution No. 1, Series of 2002, implementing RA 9165] Non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly

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preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. [Sec. 21(a), IRR of RA 9165] Any person apprehended or arrested for violating the provisions of the Act shall be subjected to screening laboratory examination or test within 24 hours, if the apprehending or arresting officer has reasonable ground to believe that the person apprehended or arrested, on account of physical signs or symptoms or other visible or outward manifestation, is under the influence of dangerous drugs. If found to be positive, the results of the screening laboratory examination or test shall be challenged within 15 days after receipt of the result through a confirmatory test conducted in any accredited analytical laboratory equipped with a gas chromatograph/mass spectrometry equipment or some such modern and accepted method, and if confirmed, the same shall be prima facie evidence that such person has used dangerous drugs, which is without prejudice for the prosecution for other violations of the provisions of the Act: Provided, that a positive screening laboratory test must be confirmed for it to be valid in court of law. [Sec. 38, IRR of RA 9165] Non-presentation of the forensic chemist in illegal drug cases is an insufficient cause for acquittal. The corpus delicti (the body of the crime) in dangerous drugs cases constitutes the dangerous drug itself. [People v. Quebral, G.R. NO. 185379 (2009)] The presumption of regularity of official acts does not apply when police officers have failed to comply with the standard of procedure set by law in a way that compromises the integrity and evidentiary value of the thing seized. In such case, the indispensable element of corpus delicti would not be proven. [Fajardo v. People, G.R. No. 185460 (2012)] OTHER IMPORTANT POINTS Authorized Drug Testing The following shall be subjected to undergo drug testing: [Sec. 36, Art. III, RA 9165] 1. Applicants for driver’s license 2. Applicants for firearm’s license and permit to carry firearms outside of residence. All persons who by the nature of their profession carry firearms shall undergo drug testing. 3. Students of secondary or tertiary schools. 4. Officers and employees of public and private offices, whether domestic or overseas, as contained in the company’s work rules and regulations. Any officer or employee found positive for use of dangerous drugs shall be dealt with administratively which shall be a ground for

5. 6.

7.

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suspension or termination, subject to the provisions of Article 282 of the Labor Code and pertinent provisions of the Civil Service Law. Officers and members of the military, police and other law enforcement agencies All persons charged before the prosecutor's office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one (1) day shall have to undergo a mandatory drug test.* All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test.

The testing requirement as to national officials whose qualification requirements have been set forth in the Constitution is unconstitutional. Where the Constitution has expressly set out the qualifications, these are exclusive and may not be broadened or circumscribed by legislative fiat. [SJS v. DDB and PDEA, G.R. No. 157870 (2008)] The operative concepts in the mandatory drug testing are “randomness” and “suspicionlessness.” In the case of persons charged with a crime before the prosecutor’s office, a mandatory drug testing can never be random or suspicionless. It violates their right to privacy and self-incrimination, and is thus unconstitutional. [SJS v. DDB and PDEA, supra.] May a drug dependent who is found guilty of the use of dangerous drugs voluntarily submit himself for treatment and rehabilitation? Yes. The drug dependent may, by himself/herself or through his/her parent, spouse, guardian or relative within the fourth degree of consanguinity or affinity, apply to the Board or its duly recognized representative, for treatment and rehabilitation of the drug dependency. Upon such application, the Board shall bring forth the matter to the Court which shall order that the applicant be examined for drug dependency. [Sec. 54, Art. VIII, RA 9165] Is there also compulsory confinement? Yes. Notwithstanding any law, rule and regulation to the contrary, any person determined and found to be dependent on dangerous drugs shall, upon petition by the Board or any of its authorized representative, be confined for treatment and rehabilitation in any Center duly designated or accredited for the purpose. A petition for the confinement of a person alleged to be dependent on dangerous drugs to a Center may be filed by any person authorized by the Board with the

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Regional Trial Court of the province or city where such person is found. [Sec. 61, Art. VIII, RA 9165] Any parent, spouse or guardian who, without valid reason, refuses to cooperate with the Board or any concerned agency in the treatment and rehabilitation of a drug dependent who is a minor, or in any manner, prevents or delays the after-care, follow-up or other programs for the welfare of the accused drug dependent, whether under voluntary submission program or compulsory submission program, may be cited for contempt by the court. [Sec. 73, Art. VIII, RA 9165]

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What is the PDEA? The PDEA is the Philippine Drug Enforcement Agency. It serves as the implementing arm of the Dangerous Drugs Board. It shall be responsible for the efficient and effective law enforcement of all the provisions on any dangerous drug and/or controlled precursor and essential chemical as provided in this Act. [Sec. 82, Art. IX, RA 9165]

How long will the drug dependent be confined for treatment and rehabilitation? Confinement in a Center for treatment and rehabilitation shall not exceed one (1) year, after which time the Court, as well as the Board, shall be apprised by the head of the treatment and rehabilitation center of the status of said drug dependent and determine whether further confinement will be for the welfare of the drug dependent and his/her family or the community. [Sec. 54, Art. VIII, RA 9165] How will a drug dependent who is under the voluntary submission program and is finally discharged from confinement in the Center be exempt from criminal liability? 1. He/she has complied with the rules and regulations of the center, the applicable rules and regulations of the Board, including the after-care and follow-up program for at least eighteen (18) months following temporary discharge from confinement in the Center 2. He/she has never been charged or convicted of any offense punishable under this Act, the Dangerous Drugs Act of 1972 or Republic Act No. 6425, as amended; the Revised Penal Code, as amended; or any special penal laws 3. He/she has no record of escape from a Center 4. He/she poses no serious danger to himself/herself, his/her family or the community by his/her exemption from criminal liability [Sec. 55, Art. VIII, RA 9165] What are the functions of the Dangerous Drugs Board? 1. Be the policy-making and strategy-formulating body in the planning and formulation of policies and programs on drug prevention and control. 2. Develop and adopt a comprehensive, integrated, unified and balanced national drug abuse prevention and control strategy. 3. Be under the Office of the President. [Sec. 77, Art. IX, RA 9165] Page 188 of 309

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F. Title VI. Crimes against Public Morals Chapter I: Gambling and Betting 1. Art. 195: Gambling 2. Art. 196: Importation, sale and possession of lottery tickets or advertisements 3. Art. 197: Betting in sports contests 4. Art. 198: Illegal betting on horse races 5. Art. 199: Illegal cockfighting Note: these laws were repealed by PD 1602 Chapter II: Offenses against Decency and Good Customs 1. Art. 200: Grave Scandal 2. Art. 201: Immoral doctrines, obscene publications and exhibitions 3. Art. 202: Vagrancy and prostitution

g.

2.

3.

1. Chapter I: Gambling and

Betting

4.

Gambling – any game or scheme, whether upon chance or skill, wherein wagers consisting of money, articles of value or representative of value are at stake or made. Note: The following special laws were not listed in the 2018 Bar Syllabus.

a. PD 1602: Prescribing stiffer penalties on illegal gambling (Anti-Gambling Act)

5.

6.

PD 1602, which repealed Articles 195-199 insofar as they are inconsistent with said Act, punishes: 1. Any person who, in any manner, shall directly or indirectly take part in any illegal or unauthorized activities or games of— a. Cockfighting, jueteng, jai alai or horse racing to include bookie operations and game fixing, numbers, bingo and other forms of lotteries; b. Cara y cruz, pompiang and the like; c. 7-11 and any game using dice; d. Black jack, lucky nine, poker and its derivatives, monte, baccarat, cuajo, pangguigue and other card games; e. Paik que, high and low, mahjong, domino and other games using plastic tiles and the like; f. Slot machines, roulette, pinball and other mechanical contraptions and devices;

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7.

8.

Dog racing, boat racing, car racing and other forms of races; h. Basketball, boxing, volleyball, bowling, pingpong and other forms of individual or team contests to include game fixing, point shaving and other machinations; i. Banking or percentage game, or any other game scheme, whether upon chance or skill, wherein wagers consisting of money, articles of value or representative of value are at stake or made; Any person who shall knowingly permit any form of gambling referred to in the preceding subparagraph to be carried on in an inhabited place or in any building, vessel or other means of transportation owned or controlled by him. Any person who shall knowingly permit any form of gambling to be carried on in a place which has a reputation of a gambling place or that prohibited gambling is frequently carried on therein, or the place is a public or government building or barangay hall; The maintainer or conductor of the above gambling schemes. a. Maintainer: a person who sets up and furnishes the means with which to carry on the gambling game or scheme. b. Conductor: a person who manages or carries on the gambling game or scheme. A government official who is a maintainer, conductor or banker of said gambling schemes, or the player, promoter, referee, umpire, judge or coach in case of game fixing, point shaving and machination. Any person who shall, knowingly and without lawful purpose in any hour of any day, possess any lottery list, paper or other matter containing letters, figures, signs or symbols pertaining to or in any manner used in the games of jueteng, jaialai or horse racing bookies, and similar games of lotteries and numbers which have taken place or about to take place. Any barangay official who, with knowledge of the existence of a gambling house or place in his jurisdiction fails to abate the same or take action in connection therewith. Any security officer, security guard, watchman, private or house detective of hotels, villages, buildings, enclosures and the like which have the reputation of a gambling place or where gambling activities are being held.

Any person who shall disclose information that will lead to the arrest and final conviction of the malefactor shall be rewarded twenty percent of the cash money or articles of value confiscated or forfeited in favor of the government. (Section 3)

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b. RA 9287: Increasing the penalty for illegal numbers games

(b)

Illegal Numbers Game – any form of illegal gambling activity which uses numbers or combinations thereof as factors in giving out jackpots. The law punishes any person who participates in any illegal numbers game: (Section 3) 1. If such person acts as a bettor; 2. If such person acts as a personnel or staff of an illegal numbers game operation; 3. If such person allows his vehicle, house, building or land to be used in the operation of the illegal numbers games; 4. If such person acts as a collector or agent; 5. If such person acts as a coordinator, controller or supervisor; 6. If such person acts as a maintainer, manager or operator; 7. If such person acts as a financier or capitalist; 8. If such person acts as protector or coddler. The possession of any gambling paraphernalia and other materials used in the illegal numbers game operation shall be deemed prima facie evidence of any offense covered by this Act. (Section 4)

(c)

(d) (e)

(f)

c. Letter of Instruction No. 816 The games of domino, bingo, poker when not played with five cards stud, cuajo, pangguingue and mahjong, provided that they are played as parlor games or for home entertainment, and provided further, that they are not played in places habitually used for gambling and the betting is not disguised to defeat the intent of Presidential Decree No. 1602, are hereby exempted. Lottery is a scheme for the distribution of prices by chance among persons who have paid, or agreed to pay, a valuable consideration for the chance to obtain a prize. It has 3 elements: 1) Consideration, 2) Chance, 3) Prize or some advantage or inequality in amount or value which is in the nature of a prize [U.S. v Filart, G.R. No. L-10263 (1915)]

d. PD 449: Cockfighting Law of 1974 Section 4. Definition of Terms. As used in this law,

the following terms shall be understood, applied and construed as follows: (a) Cockfighting shall embrace and mean the commonly known game or term "cockfighting

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derby, pintakasi or tupada", or its equivalent terms in different Philippine localities. Zoning Law or Ordinance. Either both national or local city or municipal legislation which logically arranges, prescribes, defines and apportions a given political subdivision into specific land uses as present and future projection of needs warrant. Bet Taker of Promoter. A person who calls and takes care of bets from owners of both gamecocks and those of other bettors before he orders commencement of the cockfight and thereafter distributes won bets to the winners after deducting a certain commission. Gaffer (Taga Tari). A person knowledgeable in the art of arming fighting cocks with gaff or gaffs on either or both legs. Referee (Sentenciador). A person who watches and oversees the proper gaffing of fighting cocks, determines the physical condition of fighting cocks while cockfighting is in progress, the injuries sustained by the cocks and their capability to continue fighting and decides and make known his decision by work or gestures and result of the cockfight by announcing the winner or declaring a tie or no contest game. Bettor.A person who participates in cockfights and with the use of money or other things of value, bets with other bettors or through the bet taker or promoter and wins or loses his bet depending upon the result of the cockfight as announced by the Referee or Sentenciador. He may be the owner of fighting cock.

Section 5. Cockpits and Cockfighting: In General:

(1) Ownership, Operation and Management of Cockpits. Only Filipino citizens not otherwise inhibited by existing laws shall be allowed to own, manage and operate cockpits. Cooperative capitalization is encouraged. (2) Establishment of Cockpits. Only one cockpit shall be allowed in each city or municipality, except that in cities or municipalities with a population of over one hundred thousand, two cockpits may be established, maintained and operated. (3) Cockpits Site and Construction. Cockpits shall be constructed and operated within the appropriate areas as prescribed in Zoning Law or Ordinance. In the absence of such law or ordinance, the local executives shall see to it that no cockpits are constructed within or near existing residential or commercial areas, hospitals, school buildings, churches or other public buildings. Owners, lessees, or

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operators of cockpits which are now in existence and do not conform to this requirement are given three years from the date of effectivity of this Decree to comply herewith. Approval or issuance of building permits for the construction of cockpits shall be made by the city or provincial engineer in accordance with their respective building codes, ordinances or engineering laws and practices. (4) Holding of Cockfights. Except as provided in this Decree, cockfighting shall be allowed only in licensed cockpits during Sundays and legal holidays and during local fiestas for not more than three days. It may also be held during provincial, city or municipal, agricultural, commercial or industrial fair, carnival or exposition for a similar period of three days upon resolution of the province, city or municipality where such fair, carnival or exposition is to be held, subject to the approval of the Chief of Constabulary or his authorized representative: Provided, that, no cockfighting on the occasion of such fair, carnival or exposition shall be allowed within the month of a local fiesta or for more than two occasions a year in the same city or municipality: Provided, further, that no cockfighting shall be held on December 30 (Rizal Day), June 12 (Philippine Independence Day) November 30 (National Heroes Day), Holy Thursday, Good Friday, Election or Referendum Day and during Registration Days for such election or referendum. (5) Cockfighting for Entertainment of Tourists or for Charitable Purposes. Subject to the preceding subsection hereof, the Chief Constabulary or his authorized representative may also allow the holding of cockfighting for the entertainment of foreign dignitaries or for tourists, or for returning Filipinos, commonly known as "Balikbayan", or for the support of national fund-raising campaigns for charitable purposes as may be authorized by the Office of the President, upon resolution of a provincial board, city or municipal council, in licensed cockpits or in playgrounds or parks: Provided, that this privilege shall be extended for only one time, for a period not exceeding three days, within a year to a province, city, or municipality. (6) Other games during cockfights prescribed. No gambling of any kind shall be permitted on the premises of the cockpit or place of cockfighting during cockfights. The owner,

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manager or lessee off such cockpit and the violators of this injunction shall be criminally liable under Section 8 hereof.

Section 6. Licensing of Cockpits. City and municipal

mayors are authorized to issue licenses for the operation and maintenance of cockpits subject to the approval of the Chief of Constabulary or his authorized representatives. For this purpose, ordinances may be promulgated for the imposition and collection of taxes and fees not exceeding the rates fixed under Section 13, paragraphs (a) and (b); and 19; paragraph (g) 16 of Presidential Decree No. 231, dated June 28, 1973, otherwise known as the Local Tax Code, as amended.

Section 7. Cockfighting Officials. Gaffers, referees or

bet takers or promoters shall not act as such in any cockfight herein authorized, without first securing a license renewable every year on their birthmonth from the city or municipality where such cockfighting is held. Cities and municipalities may charge a tax of not more than twenty pesos. Only licensed gaffers, referees, bet takers or promoters shall officiate in all kinds of cockfighting authorized in this Decree.

Section 8. Penal Provisions. Any violation of the

provisions of this Decree and of the rules and regulations promulgated by the Chief of Constabulary pursuant thereto shall be punished as follows: (a) By prision correccional in its maximum period and a fine of two thousand pesos, with subsidiary imprisonment in case of insolvency, when the offender is the financer, owner, manger or operator of cockpit, or the gaffer, referee or bet taker in cockfights; or the offender is guilty of allowing, promoting or participating in any other kind of gambling in the premises of cockfights during cockfights. (b) By prision correccional or a fine of not less than six hundred pesos nor more than two thousand pesos or both, such imprisonment and fine at the discretion of the court, with subsidiary imprisonment in case of insolvency, in case of any other offender.

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2. Chapter II: Offenses against

Decency and Good Customs

3.

a. Article 200 – Grave Scandal Elements: 1. Offender performs an act or acts; 2. Such act or acts be highly scandalous as offending against decency or good customs; 3. The highly scandalous conduct is not expressly falling within any other article of this Code; and 4. The act or acts complained of be committed in a public place or within the public knowledge or view. Decency – means proprietary of conduct; proper observance of the requirements of modesty, good taste, etc. Customs – established usage, social conventions carried on by tradition and enforced by social disapproval of any violation thereof. Grave Scandal – consists of acts which are offensive to decency and good customs which, having been committed publicly, have given rise to public scandal to persons who have accidentally witnessed the same. The acts must be performed in a public place or within the public knowledge or view. If it is committed in a private place, the crime of grave scandal is not committed. In conducts involving lasciviousness, it is grave scandal only where there is mutual consent. (Boado) Any act which is notoriously offensive to decency may bring about criminal liability for the crime of grave scandal, Provided such act does not constitute some other crime under the Revised Penal Code. Grave scandal is a crime of last resort.

b. Article 201 – Immoral Doctrines, Obscene Publications and Exhibitions and Indecent Shows Acts punished (as amended by PD 960 and PD 969) 1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals; 2. The authors of obscene literature, published with their knowledge in any form, the editors

4.

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publishing such literature; the owners/operators of the establishment selling the same; Those who, in theaters, fairs, cinematographs, or any other place, exhibit indecent or immoral plays, scenes, acts, or shows, it being understood that the obscene literature or indecent or immoral plays, scenes, acts or shows, whether live or in film, which are proscribed by virtue hereof, shall include those which: a. glorify criminals or condone crimes; b. serve no other purpose but to satisfy the market for violence, lust or pornography; c. offend any race, or religion; d. tend to abet traffic in and use of prohibited drugs; and e. are contrary to law, public order, morals, good customs, established policies, lawful orders, decrees and edicts; Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals.

Morals – imply conformity with the generally accepted standards of goodness or rightness in conduct or character, sometimes, specifically, to sexual conduct. Offense in any of the forms mentioned in the article is committed only when there is publicity The test of obscenity: 1. The test is objective. 2. It is more on the effect upon the viewer and not alone on the conduct of the performer. 3. If the material has the tendency to deprave and corrupt the mind of the viewer then the same is obscene and where such obscenity is made publicly, criminal liability arises. 4. As long as the pornographic matter or exhibition is made privately, there is no crime committed under the Revised Penal Code because what is protected is the morality of the public in general. Postcards of Philippine inhabitants in native attire were not obscene because the aggregate judgment of the community, and the moral sense of the people were not shocked by those pictures. They were not offensive to chastity but merely depicted persons as they actually lived. [People v. Kottinger, G.R. No. L20569 (1923)] The reaction of the public during the performance of a dance by one who had nothing to cover herself with, except nylon patches over her breasts and too abbreviated pair of nylon panties to interrupt her stark nakedness should be made the gauge in the determination of whether the dance or exhibition was

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indecent or immoral. [People v. Aparici, C.A. 52 O.G. 249 (1955)] An actual exhibition of the sexual act can have no redeeming feature—no room for art. Therefore, it is a clear and unmitigated obscenity. [People v. Padan, G.R. No. L-7295 (1957)] Miller Test of Obscenity: [From Miller v. California, 413 U.S. 15 (1973) – adopted in Fernando v. CA, G.R. No. 159751 (2006)] 1. Whether the average person, applying contemporary standards, would find the work, taken as a whole, appeals to prurient interest; 2. Whether the work depicts, in a patently offensive way, sexual conduct specifically defined by the applicable state law; 3. Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. Mere possession of obscene materials, without intent to sell, exhibit or distribute, is not punishable under Article 201. The offense is committed only where there is publicity. So long as the materials are offered for sale, displayed, or exhibited to the public, one may be liable. [Fernando v. CA, supra.]

c. Article 202 – Prostitution (Amended by R.A. 10158) Elements: 1. The offender is a woman; 2. She habitually indulges in sexual intercourse or lascivious conduct; 3. Such indulgence is for money or profit The term prostitution is applicable to a woman who for profit or money habitually engages in sexual or lascivious conduct. A man who engages in the same conduct – sex for money – is not a prostitute, but a vagrant. In law, the mere indulging in lascivious conduct habitually because of money or gain would amount to prostitution, even if there is no sexual intercourse. Virginity is not a defense.

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Before RA 10158, which decriminalized vagrancy, the following were liable under Article 202: 1. Any person, having no apparent means of subsistence, who has the physical ability to work and who neglects to apply himself to some lawful calling; 2. Any person found loitering about public or semipublic buildings or places or tramping or wandering about the country or the streets without visible means of support; 3. Any idle or dissolute person who lodges in houses of ill-fame, ruffians or pimps and those who habitually associate with prostitutes; 4. Any person who, not being included in the provisions of other articles in this Code, shall be found loitering in any inhabited or uninhabited place belonging to another without any lawful or justifiable purpose; 5. Prostitutes. All pending cases under the provisions of Article 202 of the Revised Penal Code on Vagrancy prior to its amendment by this Act shall be dismissed upon effectivity of this Act. [Section 2, RA 10158] All persons serving sentence for violation of the provisions of Article 202 on Vagrancy prior to its amendment by this Act shall be immediately released upon effectivity of this Act: Provided, That they are not serving sentence or detained for any other offense or felony. (Section 3, RA 10158) Under the Mendicancy Law of 1978 (PD 1563), the following persons are liable: 1. The mendicant himself—one who has no visible and legal means of support, or lawful employment, and who is physically able to work but neglects to apply himself to some lawful calling and instead uses begging as a means of living. 2. Any person who abets mendicancy by giving alms directly to mendicants, exploited infants and minors on public roads, sidewalks, parks and bridges shall be punished by a fine.

Habituality is the controlling factor; it has to be more than one time. There cannot be prostitution by conspiracy. One who conspires with a woman in the prostitution business like pimps, taxi drivers or solicitors of clients are guilty of the crime under Article 341 for white slavery.

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4. RA 9208: AN ACT TO INSTITUTE POLICIES TO ELIMINATE TRAFFICKING IN PERSONS ESPECIALLY WOMEN AND CHILDREN, ESTABLISHING THE NECESSARY INSTITUTIONAL MECHANISMS FOR THE PROTECTION AND SUPPORT OF TRAFFICKED PERSONS, PROVIDING PENALTIES FOR ITS VIOLATIONS (ANTI-TRAFFICKING IN PERSONS ACT) Trafficking in Persons – recruitment, transportation, transfer or harboring, or receipt of persons with or without the victim's consent or knowledge, within or across national borders by means of threat or use of force, or other forms of coercion, abduction, fraud, deception, abuse of power or of position, taking advantage of the vulnerability of the person, or, the giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation which includes at a minimum, the exploitation or the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery, servitude or the removal or sale of organs. The recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation shall also be considered as "trafficking in persons" even if it does not involve any of the aforementioned means. Acts of Trafficking in Persons It shall be unlawful for any person, natural or juridical, to commit any of the following acts (Section 4, RA 9208): 1. To recruit, transport, transfer, harbor, provide, or receive a person by any means, including those done under the pretext of domestic or overseas employment or training or apprenticeship, for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; 2. To introduce or match for money, profit, or material, economic or other consideration, any person or, as provided for under Republic Act No. 6955, any Filipino woman to a foreign national, for marriage for the purpose of acquiring, buying, offering, selling or trading him/her to engage in prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; 3. To offer or contract marriage, real or simulated, for the purpose of acquiring, buying, offering, selling, or trading them to engage in prostitution, pornography, sexual exploitation, forced labor or slavery, involuntary servitude or debt bondage;

5. 6.

7.

8.

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To undertake or organize tours and travel plans consisting of tourism packages or activities for the purpose of utilizing and offering persons for prostitution, pornography or sexual exploitation; To maintain or hire a person to engage in prostitution or pornography; To adopt or facilitate the adoption of persons for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; To recruit, hire, adopt, transport or abduct a person, by means of threat or use of force, fraud, deceit, violence, coercion, or intimidation for the purpose of removal or sale of organs of said person; and To recruit, transport or adopt a child to engage in armed activities in the Philippines or abroad.

RA 10364: THE EXPANDED ANTITRAFFICKING IN PERSONS ACT OF 2012 This amended Sec. 4 of RA 9208 as follows: Acts of Trafficking in Persons It shall be unlawful for any person, natural or juridical, to commit any of the following acts: 1. To adopt persons by any form of consideration for exploitative purposes or to facilitate the same for purposes of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; 2. To adopt or facilitate the adoption of persons for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; 3. To recruit, hire, adopt, transport, transfer, obtain, harbor, maintain, provide, offer, receive or abduct a person, by means of threat or use of force, fraud, deceit, violence, coercion, or intimidation for the purpose of removal or sale of organs of said person; 4. To recruit, transport, obtain, transfer, harbor, maintain, offer, hire, provide, receive or adopt a child to engage in armed activities in the Philippines or abroad; 5. To recruit, transport, transfer, harbor, obtain, maintain, offer, hire, provide or receive a person by means defined in Section 3 of this Act for purposes of forced labor, slavery, debt bondage and involuntary servitude, including a scheme, plan, or pattern intended to cause the person either: a. To believe that if the person did not perform such labor or services, he or she or another person would suffer serious harm or physical restraint; or

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6.

7.

8.

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b. To abuse or threaten the use of law or the legal processes; and To recruit, transport, transfer, harbor, obtain, maintain, offer, hire, provide or receive a person by means defined in Section 3 of this Act for purposes of forced labor, slavery, debt bondage and involuntary servitude, including a scheme, plan, or pattern intended to cause the person either: a. To believe that if the person did not perform such labor or services, he or she or another person would suffer serious harm or physical restraint; or b. To abuse or threaten the use of law or the legal processes; and To recruit, transport, harbor, obtain, transfer, maintain, hire, offer, provide, adopt or receive a child for purposes of exploitation or trading them, including but not limited to, the act of baring and/or selling a child for any consideration or for barter for purposes of exploitation. Trafficking for purposes of exploitation of children shall include: a. All forms of slavery or practices similar to slavery, involuntary servitude, debt bondage and forced labor, including recruitment of children for use in armed conflict; b. The use, procuring or offering of a child for prostitution, for the production of pornography, or for pornographic performances; c. The use, procuring or offering of a child for the production and trafficking of drugs; and d. The use, procuring or offering of a child for illegal activities or work which, by its nature or the circumstances in which it is carried out, is likely to harm their health, safety or morals; and To organize or direct other persons to commit the offenses defined as acts of trafficking under this Act."

Acts that Promote Trafficking in Persons The following acts which promote or facilitate trafficking in persons, shall be unlawful (Section 5, RA 9208): 1. To knowingly lease or sublease, use or allow to be used any house, building or establishment for the purpose of promoting trafficking in persons; 2. To produce, print and issue or distribute unissued, tampered or fake counseling certificates, registration stickers and certificates of any government agency which issues these certificates and stickers as proof of compliance with government regulatory and pre-departure requirements for the purpose of promoting trafficking in persons;

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3.

To advertise, publish, print, broadcast or distribute, or cause the advertisement, publication, printing, broadcasting or distribution by any means, including the use of information technology and the internet, of any brochure, flyer, or any propaganda material that promotes trafficking in persons; 4. To assist in the conduct of misrepresentation or fraud for purposes of facilitating the acquisition of clearances and necessary exit documents from government agencies that are mandated to provide pre-departure registration and services for departing persons for the purpose of promoting trafficking in persons; 5. To facilitate, assist or help in the exit and entry of persons from/to the country at international and local airports, territorial boundaries and seaports who are in possession of unissued, tampered or fraudulent travel documents for the purpose of promoting trafficking in persons; 6. To confiscate, conceal, or destroy the passport, travel documents, or personal documents or belongings of trafficked persons in furtherance of trafficking or to prevent them from leaving the country or seeking redress from the government or appropriate agencies; 7. To knowingly benefit from, financial or otherwise, or make use of, the labor or services of a person held to a condition of involuntary servitude, forced labor, or slavery. 8. To tamper with, destroy, or cause the destruction of evidence, or to influence or attempt to influence witnesses, in an investigation or prosecution of a case under this Act; 9. To destroy, conceal, remove, confiscate or possess, or attempt to destroy, conceal, remove, confiscate or possess, any actual or purported passport or other travel, immigration or working permit or document, or any other actual or purported government identification, of any person in order to prevent or restrict, or attempt to prevent or restrict, without lawful authority, the person’s liberty to move or travel in order to maintain the labor or services of that person; or 10. To utilize his or her office to impede the investigation, prosecution or execution of lawful orders in a case under this Act." Qualified Trafficking in Persons (Section 6, RA 9208, as amended by RA 10364): 1. When the trafficked person is a child; 2. When the adoption is effected through RA 8043, otherwise known as the "Inter-Country Adoption Act of 1995" and said adoption is for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage;

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3.

4.

5. 6. 7.

8.

9.

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When the crime is committed by a syndicate, or in large scale. Trafficking is deemed committed by a syndicate if carried out by a group of 3 or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against 3 or more persons, individually or as a group; When the offender is a spouse, an ascendant, parent, sibling, guardian or a person who exercises authority over the trafficked person or when the offense is committed by a public officer or employee; When the trafficked person is recruited to engage in prostitution with any member of the military or law enforcement agencies; When the offender is a member of the military or law enforcement agencies; When by reason or on occasion of the act of trafficking in persons, the offended party dies, becomes insane, suffers mutilation or is afflicted with Human Immunodeficiency Virus (HIV) or the Acquired Immune Deficiency Syndrome (AIDS); When the offender commits one or more violations of Section 4 over a period of sixty (60) or more days, whether those days are continuous or not; and When the offender directs or through another manages the trafficking victim in carrying out the exploitative purpose of trafficking.

Any person who buys or engages the services of trafficked persons for prostitution shall be penalized as follows (Section 11, RA 9208): 1. First offense - 6 months of community service as may be determined by the court and a fine of P50,000; 2. Second and subsequent offenses - imprisonment of 1 year and a fine of P100,000. Use of Trafficked Persons (Sec. 11, RA 9208, as amended by RA 10364) – Any person who buys or engages the services of a trafficked person for prostitution shall be penalized with the following: Provided, That the Probation Law (Presidential Decree No. 968) shall not apply: 1. Prision Correccional in its maximum period to prision mayor or six (6) years to twelve (12) years imprisonment and a fine of not less than Fifty thousand pesos (P50,000.00) but not more than One hundred thousand pesos (P100,000.00): Provided, however, That the following acts shall be exempted thereto: a. If an offense under paragraph (a) involves sexual intercourse or lascivious conduct with a child, the penalty shall be reclusion temporal in its medium period to reclusion

2.

3.

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perpetua or seventeen (17) years to forty (40) years imprisonment and a fine of not less than Five hundred thousand pesos (P500,000.00) but not more than One million pesos (P1,000,000.00); b. If an offense under paragraph (a) involves carnal knowledge of, or sexual intercourse with, a male or female trafficking victim and also involves the use of force or intimidation, to a victim deprived of reason or to an unconscious victim, or a victim under twelve (12) years of age, instead of the penalty prescribed in the subparagraph above the penalty shall be a fine of not less than One million pesos (P1,000,000.00) but not more than Five million pesos (P5,000,000.00) and imprisonment of reclusion perpetua or forty (40) years imprisonment with no possibility of parole; except that if a person violating paragraph (a) of this section knows the person that provided prostitution services is in fact a victim of trafficking, the offender shall not be likewise penalized under this section but under Section 10 as a person violating Section 4; and if in committing such an offense, the offender also knows a qualifying circumstance for trafficking, the offender shall be penalized under Section 10 for qualified trafficking. If in violating this section the offender also violates Section 4, the offender shall be penalized under Section 10 and, if applicable, for qualified trafficking instead of under this section; Deportation. – If a foreigner commits any offense described by paragraph (1) or (2) of this section or violates any pertinent provision of this Act as an accomplice or accessory to, or by attempting any such offense, he or she shall be immediately deported after serving his or her sentence and be barred permanently from entering the country; and Public Official. – If the offender is a public official, he or she shall be dismissed from service and shall suffer perpetual absolute disqualification to hold public, office, in addition to any imprisonment or fine received pursuant to any other provision of this Act."

Trafficked persons shall be recognized as victims of the act or acts of trafficking and as such shall not be penalized for crimes directly related to the acts of trafficking enumerated in this Act or in obedience to the order made by the trafficker in relation thereto. In this regard, the consent of a trafficked person to the intended exploitation set forth in this Act shall be irrelevant. (Section 17, RA 9208)

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Note on Section 17: Persons trafficked (including prostitutes) are exempt from criminal liability. Note also: Under RA 9208, persons who hire trafficked persons are criminally liable (Section 11). Not so in Art 202 RPC. Under RA 10364, it is provided that victims of trafficking for purposes of prostitution as defined under Section 4 of this Act are not covered by Article 202 of the Revised Penal Code and as such, shall not be prosecuted, fined, or otherwise penalized under the said law. Prostitution is definedas any act, transaction, scheme or design involving the use of a person by another, for sexual intercourse or lascivious conduct in exchange for money, profit or any other consideration. RA 10364 also added new sections on attempted trafficking of persons (Sec. 4-A), accomplice liability (Sec. 4-B) and accessories (Sec. 4-C).

CRIMINAL LAW

Accomplice – knowingly aids, abets, cooperates in the execution of the offense by previous or simultaneous acts defined in this Act Accessories – Whoever has the knowledge of the commission of the crime, and without having participated therein, either as principal or as accomplices, take part in its commission in any of the following manners: 1. By profiting themselves or assisting the offender to profit by the effects of the crime; 2. By concealing or destroying the body of the crime or effects or instruments thereof, in order to prevent its discovery; 3. By harboring, concealing or assisting in the escape of the principal of the crime, provided the accessory acts with abuse of his or her public functions or is known to be habitually guilty of some other crime.

Attempted Trafficking in Persons. – Where there are acts to initiate the commission of a trafficking offense but the offender failed to or did not execute all the elements of the crime, by accident or by reason of some cause other than voluntary desistance, such overt acts shall be deemed as an attempt to commit an act of trafficking in persons. As such, an attempt to commit any of the offenses enumerated in Section 4 of this Act shall constitute attempted trafficking in persons. In cases where the victim is a child, any of the following acts shall also be deemed as attempted trafficking in persons: 1. Facilitating the travel of a child who travels alone to a foreign country or territory without valid reason therefor and without the required clearance or permit from the Department of Social Welfare and Development, or a written permit or justification from the child’s parent or legal guardian; 2. Executing, for a consideration, an affidavit of consent or a written consent for adoption; 3. Recruiting a woman to bear a child for the purpose of selling the child; 4. Simulating a birth for the purpose of selling the child; and 5. Soliciting a child and acquiring the custody thereof through any means from among hospitals, clinics, nurseries, daycare centers, refugee or evacuation centers, and low-income families, for the purpose of selling the child.

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c.

Art. 225: Escape of Prisoner under the Custody of a Person Not a Public Officer Art. 226: Removal, Concealment, or Destruction of Documents Art. 227: Officer Breaking Seal Art. 228: Opening of Closed Documents Art. 229: Revelation of Secrets by an Officer Art. 230: Public Officers Revealing Secrets of Private Individuals

G.Title VII. Crimes Committed by Public Officers

d. e. f. g. h.

1.

Chapter I: Preliminary Provisions a. Art. 203: Who Are Public Officers

2.

Chapter II: Malfeasance and Misfeasance in Office a. Art. 204: Knowingly Rendering Unjust Judgment b. Art. 205: Judgment Rendered Through Negligence c. Art. 206: Unjust Interlocutory Order d. Art. 207: Malicious Delay in the Administration of Justice e. Art. 208: Prosecution of Offenses; Negligence and Tolerance f. Art. 209: Betrayal of Trust by an Attorney or a Solicitor - Revelation of Secrets g. Art. 210: Direct Bribery h. Art. 211: Indirect Bribery i. Art. 211-A: Qualified Bribery j. Art. 212: Corruption of Public Officials k. Art. 214: Other Frauds

3.

Chapter III: Frauds and Illegal Exactions and Transactions a. Art. 213: Fraud against the Public Treasury and Similar Offenses b. Art. 215: Prohibited Transactions c. Art. 216: Possession of Prohibited Interest by a Public Officer

4.

Chapter IV: Malversation of Public Funds and Properties a. Art. 217: Malversation of Public Funds or Property - Presumption of Malversation b. Art. 218: Failure of Accountable Officer to Render Accounts c. Art. 219: Failure of a Responsible Public Officer to Render Accounts Before Leaving the Country d. Art. 220: Illegal Use of Public Funds or Property e. Art. 221: Failure to Make Delivery of Public Funds or Property f. Art. 222: Officers Included in the Preceding Provisions

5.

Chapter V: Infidelity of Public Officers a. Art. 223: Conniving With or Consenting to Evasion b. Art. 224: Evasion through Negligence

6.

Chapter VI: Other Offenses and Irregularities by Public Officers a. Art. 231: Open Disobedience b. Art. 232: Disobedience to the Order of Superior Officer When Said Order Was Suspended by Inferior Officer c. Art. 233 - Refusal of Assistance d. Art. 234: Refusal to Discharge Elective Office e. Art. 235: Maltreatment of Prisoners f. Art. 236: Anticipation of Duties of a Public Officer g. Art. 237: Prolonging Performance of Duties and Powers h. Art. 238: Abandonment of Office or Position i. Art. 239: Usurpation of Legislative Powers j. Art. 240: Usurpation of Executive Functions k. Art. 241: Usurpation of Judicial Functions l. Art. 242: Disobeying Request for Disqualification m. Art. 243: Orders or Request by Executive Officer to Any Judicial Authority n. Art. 244: Unlawful Appointments o. Art. 245: Abuses against Chastity

Note: This is one of the instances where the Revised Penal Code may be given extra-territorial application under Article 2 (5) thereof. Crimes under this title can be committed by public officers or a non-public officer, when the latter becomes a conspirator with a public officer, or an accomplice, or accessory to the crime. The public officer has to be the principal.

1. Chapter I: Preliminary

Provisions

a. Art. 203 – Who Are Public Officers Requisites: 1. Taking part in the performance of public functions in the government;

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Performing in said government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class; His authority to take part in the performance of public functions or to perform public duties must be – a. By direct provision of the law; b. By popular election; or c. By appointment by competent authority

“Public official” includes elective and appointive officials and employees, permanent or temporary, whether in career or non-career service, including military and police personnel, whether or not they receive compensation, regardless of amount. (Sec. 3(b), RA 6713)

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Misfeasance Improper performance of (see Arts 204-207: some act which might acts by a judge) lawfully be done Nonfeasance (Prosecution)

Omission of some act which ought to be performed

a. Article 204 – Knowingly Rendering Unjust Judgment Elements: 1. Offender is a judge; 2. He renders a judgment in a case submitted to him for decision; 3. Judgment is unjust; 4. The judge knows that his judgment is unjust.

"Public officer" includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the government. (Sec. 2(c), RA 3019)

Judgment – the final consideration and determination of a court of competent jurisdiction upon matters submitted to it, in an action or proceeding.

The term “public officers” embraces every public servant from the highest to lowest.

An unjust judgment is one which is contrary to law or is not supported by the evidence, or both.

Dacumos v. Sandiganbayan [G.R. No. 95000 (1991)] expanded the meaning of “official duties”. It included those which may be in one’s capacity to perform by reason of his office.

Defense: Mere error in good faith.

Officers and employees of government owned and controlled corporations included but not those of a sequestered corporation.

The source of an unjust judgment may be either a) error, b) ill will or revenge, or c) bribery.

The better rule is that GOCCs created by law are covered while GOCCs registered with the SEC (including sequestered companies) are not. [Macalino v. Sandiganbayan, G.R. Nos. 140199-200 (2002)] The more recent case of People v. Sandiganbayan [G.R. No. 167304 (2009)] held that, based on RA 8249, presidents, directors, trustees, and managers of all GOCCs, regardless of type, are subject to the jurisdiction of the Sandiganbayan when they are involved in graft and corruption.

2. Chapter II: Malfeasance and

Misfeasance in Office

Malfeasance The performance of an act (Direct Bribery and which ought not to be Indirect Bribery) done

There must be positive evidence imputing an unjust judgment; presumption will not suffice.

The offense refers only to a judgment of an individual judge in his court, and not to the judgment rendered in a collegial court by the members thereof. [In Re: Wenceslao Laureta, G.R. No. L-68635 (1987)] Before a criminal action against a judge for violation of Articles 204 and 205 can be entertained, there must be a trial or authoritative judicial declaration that his decision or order is really unjust which may result from either an action of certiorari or prohibition in a higher court. [De Vera v. Pelayo, G.R. No. 137354 (2000)] Malice or bad faith on the part of the judge in rendering an unjust decision must still be proved and failure on the part of the complainant to prove the same warrants the dismissal of the administrative complaint [Alforte v. Santos, A.M. No. MTJ-94-914 (1995)]

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4.

b. Article 205 – Judgment Rendered Through Negligence Elements: 1. Offender is a judge; 2. He renders a judgment in a case submitted to him for decision; 3. The judgment is manifestly unjust; 4. It is due to his inexcusable negligence or ignorance. A manifestly unjust judgment is one which is so manifestly contrary to law that even a person having basic knowledge of the law cannot doubt the injustice. Abuse of discretion or mere error of judgment, not punishable. The Supreme Court held that a judgment is said to be unjust when it is contrary to the standards of conduct prescribed by law. The test to determine whether an order or judgment is unjust may be inferred from the circumstances that it is contrary to law or is not supported by evidence. [Louis Vuitton S.A. v. Judge Villanueva, A.M. No. MTJ92-643 (1992)]

c. Article 206 – Unjust Interlocutory Order Elements: 1. Offender is a judge; 2. He performs any of the following acts: a. Knowingly rendering an unjust interlocutory order or decree; or b. Rendering a manifestly unjust interlocutory order or decree through inexcusable negligence or ignorance. If the order leaves something to be done in the trial court with respect to the merits of the case, it is interlocutory. If it does not, it is final. The unjust interlocutory order must have been issued by the judge with deliberate intent to cause damage to the party concerned.

d. Article 207 – Malicious Delay in the Administration of Justice Elements: 1. Offender is a judge; 2. There is a proceeding in his court; 3. He delays in the administration of justice;

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The delay is malicious, that is, with deliberate intent to inflict damage on either party in the case.

Malice must be proven. Malice is present where the delay is sought to favor one party to the prejudice of the other. Mere delay without malice is not a felony under this provision.

e. Article 208 – Prosecution of Offenses; Negligence and Tolerance Modes 1. Maliciously refraining from instituting prosecution against violators of the law; 2. Maliciously tolerating the commission of offenses. Elements: 1. Offender is a public officer or officer of the law who has a duty to cause the prosecution of, or to prosecute, offenses; 2. 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. Offender acts with malice and deliberate intent to favor the violator of the law. Public officer – officers of the prosecution department, whose duty is to institute criminal proceedings for felonies upon being informed of their perpetration, i.e. city attorney, fiscal Officer of the law – those who, by reason of the position held by them, are duty-bound to cause prosecution and punishment of offenders, i.e. chief of police, barrio captain Also known as prevaricacion. “Negligence” in the title must be construed to mean neglect of the duties of his office by maliciously failing to move the prosecution and punishment of the delinquent. The crime committed by the law violator must be proved first. [US v. Mendoza, G.R. No. 7540 (1912)] Liability of the public officer who, having the duty of prosecuting the offender, harbored, concealed, or assisted in the escape of the latter, is that of a principal

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in the crime of dereliction of duty in the prosecution of the offense.

f. Article 209 – Betrayal of Trust by an Attorney or a Solicitor – Revelation of Secrets 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 (damage is not necessary); 3. Undertaking the defense of the opposing party in the same case, without the consent of his first client, a. after having undertaken the defense of said first client, or b. after having received confidential information from said client. When the attorney acts with malicious abuse of his employment or inexcusable negligence or ignorance, there must be damage to his client. Communications made with prospective clients to a lawyer with a view to engaging his professional services are already privileged even though the clientlawyer relationship did not eventually materialize.

5.

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Undertaking the defense of the opposite party in a case without the consent of the first client whose defense has already been undertaken.

The Supreme Court held that not all information received by counsel from the client is classified as privileged. A distinction must be made between confidential communications relating to past crimes already committed, and future crimes intended to be committed by the client. The attorney-client privilege only covers past crimes. [People v. Sandiganbayan, supra.]

g. Article 210 – Direct Bribery Modes 1. Agreeing to perform, or performing, in consideration of any offer, promise, gift or present; an act constituting a crime, in connection with the performance of his official duties; 2. Accepting a gift in consideration of the execution of an act which does not constitute a crime, in connection with the performance of his official duty; 3. Agreeing to refrain, or by refraining, from doing something which is his official duty to do, in consideration of gift or promise.

Modes of Commission: 1. Maliciously causing damage to his client through a breach of his professional duty.

Elements: 1. Offender is a public officer within the scope of Article 203; 2. Offender accepts an offer or a promise or receives a gift or present by himself or through another; 3. Such offer or promise be accepted, or gift or present received by the public officer – a. With a view to committing some crime; or b. In consideration of the execution of an act which does not constitute a crime, but the act must be unjust; or c. To refrain from doing something which it is his official duty to do. 4. The act which offender agrees to perform or which he executes be connected with the performance of his official duties.

Note: The breach of professional duty must be malicious. If it is just incidental, it would not give rise to criminal liability, although it may be the subject of administrative discipline;

The crime of bribery has no frustrated stage. If one party does not concur, then there is no agreement and not all the acts necessary to commit the crime were present.

Through gross ignorance, causing damage to the client; Inexcusable negligence; Revelation of secrets learned in his professional capacity;

Temporary performance of public functions is sufficient to constitute a person a public officer.

The confidential matters or information must be confided to the lawyer in the latter’s professional capacity. Mere malicious breach without damage is not a violation of Article 209; at most he will be liable administratively as a lawyer, e.g., suspension or disbarment under the Code of Professional Responsibility.

2. 3. 4.

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Bribery exists when the gift is: 1. voluntarily offered by a private person; 2. solicited by the public officer and voluntarily delivered by the private person; 3. solicited by the public officer but the private person delivers it out of fear of the consequences should the public officer perform his functions (here the crime by the giver does not fall under corruption of public officials due to the involuntariness of the act). In the FIRST MODE of bribery, actual receipt of the gift is not necessary. An accepted offer or promise of a gift is sufficient. However, if the offer is not accepted, only the person offering the gift is liable for attempted corruption of a public officer. In the SECOND MODE of bribery, the gift must be accepted by the public officer. The GIFT must have a value or capable of pecuniary estimation. It could be in the form of money, property or services. It cannot consist of a mere offer or promise of a gift. If the act required of the public officer amounts to a crime and he commits it, he shall be liable for the penalty corresponding to the crime.

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acceptance of a promise or offer or receipt of a gift or present is required in direct bribery. Moreover, the ambit of Section 3(b) of RA 3019 is specific. It is limited only to contracts or transactions involving monetary consideration where the public officer has the authority to intervene under the law. Direct bribery, on the other hand, has a wider and more general scope: (a) performance of an act constituting a crime; (b) execution of an unjust act which does not constitute a crime and (c) agreeing to refrain or refraining from doing an act which is his official duty to do. [Merencillo v. People, G.R. No. 142369-70, (2007)]

h. Article 211 – Indirect Bribery Elements: 1. Offender is a public officer; 2. He accepts gifts; 3. The gifts are offered to him by reason of his office. The principal distinction between direct and indirect bribery is that in the former, the officer agrees to perform or refrain from doing an act in consideration of the gift or promise. In the latter case, it is not necessary that the officer do any act. It is sufficient that he accepts the gift offered by reason of his office.

The THIRD MODE of bribery and prevaricacion (Art 208) are similar offenses, both consisting of omission of an act required to be performed.

If after receiving the gift, the officer does any act in favor of the giver which is unfair to the others, the crime continues to be indirect bribery. Precisely the evil of indirect bribery is in its tendency to produce future, unspecified, and unwarranted favors from the official.

In direct bribery however, a gift or promise is given in consideration of the omission. This is not necessary in prevaricacion.

This is always in the consummated stage. There is no attempted much less frustrated stage in indirect bribery.

Direct bribery does not absorb Art. 208 (dereliction of duty). See Qualified Bribery (211-A)

There must be clear intention on the part of the public officer: 1. to take the gift offered; and 2. consider the property as his own for that moment.

Police Sergeant Malfrosque asked and accepted money in exchange for the recovery of the reported stolen gas tanks to the owners. This made him liable under the 2nd mode of Art 210 since the act of returning the gas tanks to the owners does not constitute a crime; he demanded money and said act was in connection with the performance of his duty as a policeman. [Marifosque v. People, G.R. No. 156685 (2004)] Distinguished from Sec 3(b) of RA 3019 Whereas the mere request or demand of a gift, present, share, percentage or benefit is enough to constitute a violation of Section 3(b) of RA 3019,

Mere physical receipt unaccompanied by any other sign, circumstance or act to show such acceptance is not sufficient to convict the officer. “Gift" refers to a thing or a right to dispose of gratuitously, or any act or liberality, in favor of another who accepts it, and shall include a simulated sale or an ostensibly onerous disposition thereof. It shall not include an unsolicited gift of nominal or insignificant value not given in anticipation of, or in

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exchange for, a favor from a public official or employee. [Sec. 3(c), RA 6713] “Receiving any gift" includes the act of accepting directly or indirectly a gift from a person other than a member of the public officer's immediate family, in behalf of himself or of any member of his family or relative within the fourth civil degree, either by consanguinity or affinity, even on the occasion of a family celebration or national festivity like Christmas, if the value of the gift is under the circumstances manifestly excessive. [Section 2(c), RA 3019]

i. Article 211-A – Qualified Bribery Elements: 1. Offender is a public officer entrusted with law enforcement; 2. He refrains from arresting or prosecuting an offender who has committed a crime punishable by reclusion perpetua and/or death; 3. Offender refrains from arresting or prosecuting in consideration of any offer, promise, gift, or present. The crime of qualified bribery may be committed only by public officers “entrusted with enforcement” (those whose official duties authorize them to arrest or prosecute offenders). The penalty is qualified if the public officer is the one who asks or demands such present. If the penalty imposed is lower than reclusion perpetua and/or death had the offender been arrested or the crime prosecuted, the crime is direct bribery. The dereliction of the duty punished under Article 208 of the Revised Penal Code is absorbed in Qualified Bribery.

j. Article 212 – Corruption of Public Officials Elements: 1. Offender makes offers or promises or gives gifts or presents to a public officer; 2. The offers or promises are made or the gifts or presents given to a public officer, under circumstances that will make the public officer liable for direct bribery or indirect bribery. The offender is the giver of the gift or the offeror of the promise. The act may or may not be accomplished.

CRIMINAL LAW

Whenever any public officer or employee has acquired during his incumbency an amount of property which is manifestly out of proportion to his salary as such public officer or employee and to his other lawful income and the income from legitimately acquired property, said property shall be presumed prima facie to have been unlawfully acquired. If the respondent is unable to show to the satisfaction of the court that he has lawfully acquired the property in question, then the court shall declare such property, forfeited in favor of the State. [R.A. 1379] The following shall be exempt from prosecution or punishment for the offense with reference to which his information and testimony was given: 1. Any person who voluntarily gives information about any violation of a. Articles 210, 211, and 212 of the RPC; b. R.A. 3019, as amended; c. Section 345 of the Internal Revenue Code and Section 3604 of the Tariff and Customs Code and other provisions of the said Codes penalizing abuse or dishonesty on the part of the public officials concerned; d. Other laws, rules and regulations punishing acts of graft, corruption and other forms of official abuse; 2. Any person who willingly testifies against any public official or employee for such violation. (Section 1, PD 749) RA 3019: ANTI-GRAFT AND CORRUPT PRACTICES ACT CORRUPT OFFICERS

PRACTICES

OF

PUBLIC

Sec. 3(a) Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense. Sec. 3(b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other party, wherein the public officer in his official capacity has to intervene under the law. Elements: 1. the offender is a public officer;

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who requested or received a gift, a present, a share, a percentage, or benefit; on behalf of the offender or any other person; in connection with a contract or transaction with the government; in which the public officer, in an official capacity under the law, has the right to intervene. [CadiaoPalacios v. People, G.R. No. 168544 (2009)]

Bar question: May a public officer charged under Section 3(b) of Republic Act No. 3019 ["directly or indirectly requesting or receiving any gift, present, share, percentage or benefit, for himself or for any other person, in connection with any contract or transaction between the government and any other party, wherein the public officer in his official capacity has to intervene under the law"] also be simultaneously or successively charged with direct bribery under Article 210 of the Revised Penal Code? Suggested answer: Violation of Section (b) of RA 3019 (Graft) and Article 210 of RPC do not preclude each other and may be simultaneously or successively charged Whether or not the public officer demanded for gifts or benefits is immaterial, for the Act uses the words “requesting or receiving”. This section refers to a public officer whose official intervention is required by law in a contract or transaction. [Jaravata v. Sandiganbayan, G.R. No. L56170 (1984)] Sec. 3(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. Elements: 1. the offender is a public officer; 2. he has secured or obtained, or would secure or obtain, for a person any government permit or license; 3. he directly or indirectly requested or received from said person any gift, present or other pecuniary or material benefit for himself or for another; and 4. he requested or received the gift, present or other pecuniary or material benefit in consideration for help given or to be given

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Sec. 3(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. Sec. 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 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. Elements: 1. The accused is a public officer discharging administrative, judicial or official functions; 2. he must have acted with manifest partiality, evident bad faith, or inexcusable negligence; and 3. his action has caused any undue injury to any party, including the Government, or has given any party unwarranted benefit, advantage or preference in the discharge of his functions. [Fonacier v. Sandiganbayan G.R. No. L-50691 (1994)] Manifest Partiality "Partiality" is synonymous with "bias" which "excites a disposition to see and report matters as they are wished for rather than as they are." Evident Bad Faith "Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud." Inexcusable Negligence “Gross negligence has been so defined as negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but wilfully and intentionally with a conscious indifference to consequences in so far as other persons may be affected. It is the omission of that care which even inattentive and thoughtless men never fail to take on their own property." These definitions prove all too well that the three modes are distinct and different from each other. Proof of the existence of any of these modes in connection with the prohibited acts under Section

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3(e) should suffice to warrant conviction. [Fonacier v. Sandiganbayan, G.R. No. L-50691 (1994)] The fact that the damage was caused when the accused was no longer in the discharge his official functions will not remove his classification as a public officer. It is precisely the taking advantage of his official position which showed evident bad faith and caused undue injury. The last sentence of paragraph (e) is intended to make clear the inclusion of officers and employees of offices or government corporations which, under the ordinary concept of “public officers” may not come within the term. It is a strained construction of the provision to read it as applying exclusively to public officers charged with the duty of granting licenses or permits or other concessions [Mejorada v. Sandiganbayan, G.R. Nos. L-51065-72 (1987)] Sec. 3(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. Sec. 3(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.

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. Sec. 3(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. Sec. 3(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. Prohibition on private individuals (Sec. 4) 1. Taking advantage of family or close personal relation with any public official, by directly or indirectly requesting or receiving any present or pecuniary advantage from any person having some business, transaction, application, request or contract with the government, in which such public official has to intervene. Family relation: includes the spouse or relatives by consanguinity or affinity in the third civil degree.

Sec. 3(h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest. A mayor who has divested himself of shares in a corporation which had a contract with the government before his assumption to office, even if the divestment was to a relative, is not liable under 3 (h). What the law wants to prevent is actual intervention in a transaction in which the public official has financial or pecuniary interest. [Trieste v. Sandiganbayan, G.R. No. 70332-43 (1986)] Sec. 3(i) Directly or indirectly becoming interested, for personal gain, or having a material interest in any

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Close personal relation: includes close personal friendship, social and fraternal connections, and professional employment all giving rise to intimacy which assures free access to such public officer. 2.

Knowingly inducing or causing any public official to commit any of the offenses defined in Sec. 3.

Prohibition on certain relatives (Sec. 5) The spouse or any relative, by consanguinity or affinity, within the third civil degree, of the President, Vice-President, President of the Senate, or Speaker of the House of Representatives is prohibited from intervening directly or indirectly, in any business, transaction, contract or application with the Government.

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3.

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Exception Unsolicited gifts or presents of small or insignificant value offered or given as a mere ordinary token of gratitude or friendship according to local customs or usage, shall be excepted from the provisions of this Act. [Sec. 14 RA 3019]

Person – includes any natural or juridical person, unless the context indicates otherwise. Ill-gotten wealth – any asset, property, business enterprise or material possession of any person within the purview of Section 2 (Plunder), acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes: a. Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; b. By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned; c. By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or -controlled corporations and their subsidiaries; d. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including promise of future employment in any business enterprise or undertaking; e. 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 f. 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. 1, RA 7080]

RA 7080: AN ACT DEFINING AND PENALIZING THE CRIME OF PLUNDER (ANTI-PLUNDER ACT)

RA 7659 (The Death Penalty Law) amended Section 2 of RA 7080, and lowered the amount to fifty million pesos and increased the imposable penalty to death.

DEFINITION OF TERMS 1. Public Officer – any person holding any public office in the Government of the Republic of the Philippines by virtue of an appointment, election or contract. 2. Government – includes the National Government, and any of its subdivisions, agencies or instrumentalities, including GOCCs and their subsidiaries.

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. 4, RA 7080]

Exceptions: 1. Any person who, prior to the assumption of office of those officials to whom he is related, has been already dealing with the Government along the same line of business, nor to any transaction, contract or application already existing or pending at the time of such assumption of public office. 2. Any application filed by him the approval of which is not discretionary on the part of the official or officials concerned but depends upon compliance with requisites provided by law, or rules or regulations issued pursuant to law; 3. Any act lawfully performed in an official capacity or in the exercise of a profession. Prohibition on Members of Congress (Sec. 6) 1. A member of Congress during the term for which he has been elected, to acquire or receive any personal pecuniary interest in any specific business enterprise which will be directly and particularly favored or benefited by any law or resolution authored by him previously approved or adopted by Congress during the same term. 2. Any other public officer who recommended the initiation in Congress of the enactment or adoption of any law or resolution, and acquires or receives any such interest during his incumbency. 3. A member of Congress or other public officer, who, having such interest prior to the approval of such law or resolution authored or recommended by him, continues for thirty days after such approval to retain such interest.

4.

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Combination – refers to at least 2 acts falling under different categories of enumeration in Sec. 1 (d) i.e. raids on the public treasury under subpar. 1 and fraudulent conveyance of assets belonging to the National Government under subpar. 3. [Estrada v. Sandiganbayan, supra.] Series – refers to at least 2 or more overt or criminal acts falling under the same category of enumeration in Sec. 1 (d) i.e. misappropriation, malversation and raids on the public treasury under subparagraph 1. [Estrada v. Sandiganbayan, supra.] Pattern – consists of at least a combination or series of overt or criminal acts enumerated in subsections (1) to (6) of Section 1(d). It is a general plan of action or method which the principal accused and the public officer and others conniving with him follow to achieve the unlawful scheme or conspiracy to achieve a common goal. [Estrada v. Sandiganbayan, supra.] Plunder is a crime malum in se, and the element of mens rea must be proven in a prosecution for plunder. [Estrada v. Sandiganbayan, supra.] Difference between wheel conspiracy and chain conspiracy In the American jurisdiction, the presence of several accused in multiple conspiracies commonly involves two structures: (1) the so-called wheel or circle conspiracy, in which there is a single person or group (the hub) dealing individually with two or more other persons or groups (the spokes); and (2) the chain conspiracy, usually involving the distribution of narcotics or other contraband, in which there is successive communication and cooperation in much the same way as with legitimate business operations between manufacturer and wholesaler, then wholesaler and retailer, and then retailer and consumer. [Estrada v. Sandiganbayan, supra.] PD 46 : Making It Punishable for Public Officials and Employees to Receive, and for Private Persons to Give, Gifts on Any Occasion, Including Christmas It is punishable for any public official or employee, whether of the national or local governments, to receive, directly or indirectly, and for private persons to give, or offer to give, any gift, present or other valuable thing on any occasion, including Christmas, when such gift, present or other valuable thing is given by reason of his official position, regardless of whether or not the same is for past favor or favors or the giver hopes or expects to receive a favor or better treatment in the future from the public official or employee concerned in the discharge of his official

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functions. Included within the prohibition is the throwing of parties or entertainments in honor of the official or employee or his immediate relatives.

3. Chapter III: Frauds and

Illegal Exactions and Transactions

a. Article 213 – Fraud against the Public Treasury and Similar Offenses Modes: 1. Entering into an agreement with any interested party or speculator or making use of any other scheme, to defraud the government, in dealing with any person with regard to furnishing supplies, the making of contracts, or the adjustment or settlement of accounts relating to public property or funds; 2. Demanding, directly or indirectly, the payment of sums different from or larger than those authorized by law, in collection of taxes, licenses, fees, and other imposts; 3. Failing voluntarily to issue a receipt, as provided by law, for any sum of money collected by him officially, in the collection of taxes, licenses, fees and other imposts; 4. Collecting or receiving, directly or indirectly, by way of payment or otherwise, things or objects of a nature different from that provided by law, in the collection of taxes, licenses, fees and other imposts. Elements of Fraud against Public Treasury (par.1): 1. Offender is a public officer 2. He should have taken advantage of his public office, that is, he intervened in the transaction in his official capacity 3. He entered into an agreement with any interested party or speculator or made use of any other scheme with regard to: a. Furnishing supplies b. The making of contracts or c. The adjustment or settlement of accounts relating to public property or funds 4. Accused had intent to defraud the Government. Consummated by merely entering into agreement with any interested party or speculator or by merely making use of other scheme to defraud the government.

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It is not necessary that the Government is actually defrauded by the reason of the transaction

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b. Article 214 – Other Frauds

Elements of Illegal Exactions (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 the following acts or omissions: a. Demanding directly or indirectly, the payment of sums different from or larger than those authorized by law; b. Failing voluntarily to issue a receipt as provided by law, for any sum of money collected by him officially; or c. Collecting or receiving, directly or indirectly, by way of payment or otherwise, things or object of a nature different from that provided by law

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 Article 315 to 318 (estafa, other forms of swindling, swindling a minor, other deceits).

This can only be committed principally by a public officer whose official duty is to collect taxes, license fees, import duties and other dues payable to the government.

Elements: 1. Offender is an appointive public officer; 2. He becomes interested, directly or indirectly, in any transaction of exchange or speculation; 3. The transaction takes place within the territory subject to his jurisdiction; 4. He becomes interested in the transaction during his incumbency.

Mere demand of a larger or different amount is sufficient to consummate the crime. The essence is the improper collection (damage to government is not required). The act of receiving payment due the government without issuing a receipt will give rise to illegal exaction even though a provisional receipt has been issued. What the law requires is a receipt in the form prescribed by law, which means official receipt. If sums are received without demanding the same, a felony under this article is not committed. However, if the sum is given as a sort of gift or gratification, the crime is indirect bribery. When there is deceit in demanding a greater fee than those prescribed by law, the crime committed is estafa and not illegal exaction. Illegal exaction may be complexed with malversation if illegal exaction was committed as a necessary means to commit malversation. Officers and employees of the BIR or Customs are not covered by the article. The NIRC or the Revised Administrative Code is the applicable law.

Additional penalty of temporary special disqualification in its maximum period to perpetual special disqualification, apart from the penalties imposed in Arts 315-318.

c. Art. 215 – Prohibited Transactions

Examples of transactions of exchange or speculation are: buying and selling stocks, commodities, land etc wherein one hopes to take advantage of an expected rise or fall in price. Purchasing of stocks or shares in a company is simple investment and not a violation of the article. However, regularly buying securities for resale is speculation. The offender may also be held liable under RA 3019 Sec 3(i).

d. Article 216 – Possession of Prohibited Interest by a Public Officer Persons liable: 1. Public officer who, directly or indirectly, became interested in any contract or business in which it was his official duty to intervene; 2. Experts, arbitrators, and private accountants who, in like manner, took part in any contract or transaction connected with the estate or property in the appraisal, distribution or adjudication of which they had acted; 3. Guardians and executors with respect to the property belonging to their wards or the estate.

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Fraud is not necessary. Intervention must be by virtue of the public office held. The basis here is the possibility that fraud may be committed or that the officer may place his own interest above that of the government or party he represents.

4. Chapter IV: Malversation of

Public Funds or Property

a. Article 217 – Malversation of Public Funds or Property Presumption of Malversation Modes: 1. Appropriating public funds or property; 2. Taking or misappropriating the same; 3. Consenting, or through abandonment or negligence, permitting any other person to take such public funds or property; and 4. Being otherwise guilty of the misappropriation or malversation of such funds or property. Elements common to all modes: 1. Offender is a public officer; 2. He had the custody or control of funds or property by reason of the duties of his office; 3. Those funds or property were public funds or property for which he was accountable; 4. He appropriated, took, misappropriated or consented or, through abandonment or negligence, permitted another person to take them. Malversation is also called embezzlement. Appropriation – Every attempt to dispose of public funds or property without a right to do so. The public officer must have official custody or the duty to collect or receive funds due the government, or the obligation to account for them, because this provision presupposes abuse of office. The nature of the duties of the public officer, not the name of the office, is controlling. Thus, a clerk who receives money or property belonging to the government, in the course of his employment, for which he is bound to account, may be liable under Article 217. If the public officer is not accountable for the funds or property but someone else is, the crime committed

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is theft or qualified theft if there is an abuse of confidence. It is not necessary that the offender profited for as long as the accountable officer was remiss in his duty of safekeeping public funds or property. He is liable for malversation if such funds were lost or otherwise misappropriated by another. Negligence – the omission of reasonable care and caution which an ordinary prudent person would have used in the same situation. The measure of negligence is the standard of care commensurate with the occasion. It can be committed either with malice or through negligence or imprudence. This is one crime in the Revised Penal Code where the penalty is the same whether committed with dolo or through culpa. The funds or property must be received in an official capacity. Otherwise, the crime committed is estafa. Returning the malversed funds is not exempting, it is only mitigating. A person whose negligence made possible the commission of malversation by another can be held liable as a principal by indispensable cooperation. Demand as well as damage to the government are not necessary elements. Demand merely raises a prima facie presumption that missing funds have been put to personal use. Damage to the government is immaterial because the penalty is based on the amount involved. An accountable public officer may be convicted of malversation even in the absence of direct evidence of personal misappropriation, where he has not been able to explain satisfactorily the absence of the public funds involved. [Estepa v. Sandiganbayan, G.R. No. 59670 (1990)] A private person may also commit malversation under the following situations: 1. Conspiracy with a public officer in committing malversation; 2. When he has become an accomplice or accessory to a public officer who commits malversation; 3. When the private person is made the custodian in whatever capacity of public funds or property, whether belonging to national or local government, and he misappropriates the same (Article 222); 4. When he is constituted as the depositary or administrator of funds or property seized or

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attached by public authority even though said funds or property belong to a private individual (Article 222). Technical malversation (Article 220) is not included in the crime of malversation. Presumption of Misappropriation When a demand is made upon an accountable officer and he cannot produce the fund or property involved, there is a prima facie presumption that he had converted the same to his own use. There must be indubitable proof that thing unaccounted for exists. Audit should be made to determine if there was shortage. Audit must be complete and trustworthy. If there is doubt, presumption does not arise. The accused incurred shortage (P1.74) mainly because the auditor disallowed certain cash advances the accused granted to employees. But on the same date that the audit was made, the partly reimbursed the amount and paid it in full three days later. The Supreme Court considered the circumstances as negative of criminal intent. The cash advances were made in good faith and out of good will to coemployees which was a practice tolerated in the office. There was no negligence, malice, nor intent to defraud. [Quizo v. Sandiganbayan, G.R. No. 77120 (1987)] There is malversation even if there is no direct evidence of misappropriation and the only evidence is unexplainable shortage. [Perez v People, 544 SCRA 532] Malversation (Art. 217)

Estafa with Abuse of Confidence (Art. 315)

Funds or property usually Funds/property public always private

are

Offender is a private Offender is usually a individual or even a public officer who is public officer who is not accountable for the accountable for public public funds/property funds/property Crime is committed by appropriating, taking, or misappropriating/consen ting or through abandonment or negligence, permitting any other person to take the public funds/property

Crime is committed by misappropriating, converting, or denying having received money, goods or other personal property

No element of damage.

There is damage.

Demand not necessary.

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There is a need for prior demand.

A routine government audit was conducted in WaAcon’s office and it was discovered that the sacks of rice entrusted to him for safekeeping were missing. Art 217 no longer requires proof by the State that the accused actually appropriated, took, or misappropriated public funds or property; instead, a presumption, though disputable and rebuttable, was installed upon demand by any duly authorized officer, the failure of a public officer to have duly forthcoming any public funds or property which said officer is accountable for should be prima facie evidence that he had put such missing funds or properties to personal use. [People v. Wa-Acon, G.R. No. 164575 (2006)] When estafa not malversation If petitioner, being a public officer, embezzled public funds for which he is accountable, his crime would be malversation through falsification. But since he misappropriated public funds for which he is not accountable, his crime is estafa through falsification. [Ilumin v. Sandiganbayan, 241 SCRA 586 (1995)]

b. Article 218 – Failure of Accountable Officer to Render Accounts Elements: 1. Offender is public officer, whether in the service or separated therefrom by resignation or any other cause; 2. He is an accountable officer for public funds or property; 3. He is required by law or regulation to render account 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. Demand for accounting is not necessary. It is also not essential that there be misappropriation because if present, the crime would be malversation.

c. Article 219 – Failure of a Responsible Public Officer to Render Accounts Before Leaving the Country Elements: 1. Offender is a public officer;

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He is an accountable officer for public funds or property; He unlawfully leaves or attempts to leave the Philippine Islands without securing a certificate from the Commission on Audit showing that his accounts have been finally settled.

The act of leaving the country must be unauthorized or not permitted by law. The purpose of the law is to discourage responsible or accountable officers from leaving without first liquidating their accountability. It is not necessary that they really misappropriated public funds.

d. Article 220 – Illegal Use of Public Funds or Property Elements: 1. Offender is a public officer; 2. There are public funds or property under his administration; 3. Such fund or property were appropriated by law or ordinance; 4. He applies such public fund or property to any public use other than for which it was appropriated for. Illegal use of public funds or property is also known as technical malversation. The term technical malversation is used because in this crime, the fund or property involved is already appropriated or earmarked for a certain public purpose. Despite the public purpose, the act is punished because it remains a violation of the appropriations law. Regardless of damage or embarrassment to the public service. Malversation (Art. 217)

Technical malversation (Art. 220)

The offender misappropriates public funds or property for his own personal use, or allows any other person to take such funds or property for the latter’s own personal use.

The public officer applies the public funds or property under his administration to another public use different from that for which the public fund was appropriated by law or ordinance.

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e. Article 221 - Failure to Make Delivery of Public Funds or Property Modes 1. Failing to make payment by a public officer who is under obligation to make such payment from government funds in his possession; 2. Refusing to make delivery by a public officer who has been ordered by competent authority to deliver any property in his custody or under his administration. Elements: 1. Public officer has government funds in his possession; 2. He is under obligation to either: a. make payment from such funds; b. to deliver any property in his custody or under his administration 3. He maliciously fails to make the payment or refuses to make delivery.

f. Article 222 – Officers Included in the Preceding Provisions These officers are include any: 1. Private individual who, in any capacity, have charge of any national, provincial or municipal funds, revenue, or property 2. Administrator or depositary of funds or property that has been attached, seized or deposited by public authority, even if owned by a private individual. Sheriffs and receivers fall under the term “administrator.” A judicial administrator in charge of settling the estate of the deceased is not covered by the article. Conversion of effects in his trust makes him liable for estafa. Private property is included, provided it is (1) attached, (2) seized or (3) deposited by public authority. Technical malversation is malum prohibitum. This is one exception to the rule that crimes defined in the RPC are mala in se. Hence, good faith is not a defense in technical malversation. (Ysidoro v. People, 685 SCRA 637). In contrast, see Garcia v. CA, 484 SCRA 617), where the SC held that tampering/falsification of election returns is mala in se even if a special penal law, Omnibus Election Code, penalizes it. The act of cheating is inherently immoral.

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The fact that the public officer recaptured the prisoner who had escaped from his custody does not afford complete exculpation.

5. Chapter V: Infidelity of

Public Officers

SECTION ONE – INFIDELITY IN THE CUSTODY OF PRISONERS

a. Article 223 – Conniving With or Consenting to Evasion Elements: 1. Offender is a public officer; 2. He had in his custody or charge a prisoner, either detention prisoner or prisoner by final judgment; 3. Such prisoner escaped from his custody; 4. He was in connivance with the prisoner in the latter’s escape. (“shall consent to the escape”) Classes of prisoners involved 1. Those who have been sentenced by final judgment to any penalty; 2. Detention prisoners who are temporarily held in legal custody, arrested for and charged with violation of some law or municipal ordinance. Leniency, laxity, and release of a detention prisoner who could not be delivered to judicial authorities within the time fixed by law is not infidelity in the custody of a prisoner. But there is real actual evasion of service of a sentence when the custodian permits the prisoner to obtain a relaxation in his imprisonment and to escape the punishment of being deprived of his liberty, thus making the penalty ineffectual, although the convict may not have fled. This includes allowing prisoners to sleep and eat in the officer’s house or utilizes the prisoner’s services for domestic chores.

The liability of an escaping prisoner: 1. If he is a prisoner by final judgment, he is liable for evasion of service (Art. 157) 2. If he is a detention prisoner, he does not incur criminal liability (unless cooperating with the offender). Policeman Rodillas escorted detained prisoner Sacris to the court. After the court adjourned he let her eat lunch with her family, permitted her to go to the ladies washroom unescorted and after her escape, did not report it immediately to his superiors, instead he went around looking for her. SC held that he is guilty of the crime in Art 224 for being negligent in the performance of his duties which made the escape of Sacris possible. [Rodillas v. Sandiganbayan, G.R. No. L58652 (1988)]

c. Article 225 – Escape of Prisoner under the Custody of a Person Not a Public Officer Elements: 1. Offender is a private person; 2. The conveyance or custody of a prisoner or person under arrest is confided to him; 3. The prisoner or person under arrest escapes; 4. Offender consents to the escape, or that the escape takes place through his negligence. If the offender who aided or consented to the prisoner’s escaping from confinement, whether the prisoner is a convict or a detention prisoner, is not the custodian, the crime is delivering prisoners from jail under Article 156. The party who is not the custodian but who conspired with the custodian in allowing the prisoner to escape does not commit infidelity in the custody of the prisoner.

b. Article 224 – Evasion through Negligence Elements: 1. Offender is a public officer; 2. He is charged with the conveyance or custody of a detention prisoner or prisoner by final judgment; 3. Such prisoner escapes through negligence

Art. 225 is not applicable if a private person was the one who made the arrest and he consented to the escape of the person he arrested.

This covers only positive carelessness and definite laxity which amounts to deliberate non-performance of duties.

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2.

SECTION TWO – INFIDELITY IN THE CUSTODY OF DOCUMENTS

d. Article 226 – Removal, Concealment, or Destruction of Documents Elements: 1. Offender is a public officer; 2. He abstracts, destroys or conceals a document or papers; 3. Said document 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 has been caused. Can only be committed by the public officer who is made the custodian of the document in his official capacity. If the offender is a private individual, estafa is committed; if there is no damage, malicious mischief. If the officer was placed in possession of the document but it is not his duty to be the custodian thereof, this crime is not committed. The document must be complete and one by which a right could be established or an obligation could be extinguished. If the writings are mere forms, there is no crime. Damage to public interest is necessary. However, material damage is not necessary. Removal is consummated upon taking or secreting away of the document from its usual place. It is immaterial whether or not the illicit purpose of the offender has been accomplished. This could cover failure on the part of the post office to forward the letters to their destination. Damage in this article may consist in mere alarm to the public or in the alienation of its confidence in any branch of the government service.

e. Article 227 – Officer Breaking Seal Elements: 1. Offender is a public officer;

3. 4.

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He is charged with the custody of papers or property; These papers or property are sealed by proper authority; He breaks the seal or permits them to be broken.

In "breaking of seal", the word "breaking" should not be given a literal meaning. The custodian is liable even if the seal was not actually broken because the custodian managed to open the parcel without breaking the seal. The element of damage is not required.

Revelation Of Secrets By An Officer (Art. 229)

Removal, Concealment or Destruction of Documents (Art. 226)

The papers contain secrets and therefore should not be published, and the public officer having charge thereof removes and delivers them wrongfully to a third person.

The papers do not contain secrets but their removal is for an illicit purpose.

f. Article 228 – Opening of Closed Documents 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. The act should not fall under Art 227. Damage is also not necessary.

g. Article 229 – Revelation of Secrets by an Officer Mode 1: Revealing any secrets known to the offending public officer by reason of his official capacity; Elements: 1. Offender is a public officer; 2. He knows of a secret by reason of his official capacity; 3. He reveals such secret without authority or justifiable reasons;

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Damage, great or small, is caused to the public interest.

Mode 2: Wrongfully delivering papers or copies of papers of which he may have charge and which should not be published. Elements: 1. Offender is a public officer; 2. He has charge of papers; 3. Those papers should not be published; 4. He delivers those papers or copies thereof to a third person; 5. The delivery is wrongful; 6. Damage is caused to public interest. Espionage is not contemplated in this article since revelation of secrets of the State to a belligerent nation is already defined in Art 117 and CA 616. Secrets must affect public interest. Secrets of private persons are not included. “Charge” - means custody or control. If he is merely entrusted with the papers and not with the custody thereof, he is not liable under this article. If the papers contain secrets which should not be published, and the public officer having charge thereof removes and delivers them wrongfully to a third person, the crime is revelation of secrets. On the other hand, if the papers do not contain secrets, their removal for an illicit purpose is infidelity in the custody of documents. Damage is essential to the act committed.

h. Article 230 – Public Officers Revealing Secrets of Private Individuals Elements: 1. Offender is a public officer; 2. He knows of the secrets of a private individual by reason of his office; 3. He reveals such secrets without authority or justifiable reason. Revelation to one person is sufficient. When the offender is a public attorney or a solicitor, the act of revealing the secret should not be covered by Art 209 (Betrayal of Trust). Damage to private individual is not necessary.

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The reason for this provision is to uphold faith and trust in public service.

6. Chapter VI: Other Offenses

or Irregularities by Public Officers

SECTION ONE – DISOBEDIENCE, REFUSAL OF ASSISTANCE, MALTREATMENT OF PRISONERS

AND

a. Article 231 – Open Disobedience Elements: 1. Officer is a judicial or executive officer; 2. There is a judgment, decision or order of a superior authority; 3. Such judgment, decision or order was made within the scope of the jurisdiction of the superior authority and issued with all the legal formalities; 4. He, without any legal justification, openly refuses to execute the said judgment, decision or order, which he is duty bound to obey.

b. Article 232 – Disobedience to the 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. This does not apply if the order of the superior is illegal.

c. Article 233 – Refusal of Assistance Elements: 1. Offender is a public officer; 2. A competent authority demands from the offender that he lend his cooperation towards the administration of justice or other public service; 3. Offender maliciously fails to do so.

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The request must come from one public officer to another. If he receives consideration therefore, bribery is committed. But mere demand will fall under the prohibition under the provision of Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act). Applies whether or not serious damage to the public interest was committed. If the offender is a private individual, he may be held liable for contempt.

d. 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 said office; 3. There is no legal motive for such refusal to be sworn in or to discharge the duties of said office. Once an individual is elected to an office by the will of the people, discharge of duties becomes a matter of duty, not only a right. This only applies for elective, not appointive officers.

e. 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 in either of the following manners: a. By overdoing himself in the correction or handling of a prisoner or detention prisoner under his charge either b. By the imposition of punishment not authorized by the regulations; c. By inflicting such punishments (those authorized) in a cruel and humiliating manner; d. By maltreating such prisoners to extort a confession or to obtain some information from the prisoner. This is committed only by such public officer charged with direct custody of the prisoner.

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Offender may also be held liable for physical injuries or damage caused. If the public officer is not the custodian of the prisoner, and he manhandles the latter, the crime is physical injuries. The offended party can either be a convict by final judgment or a detention prisoner. To be considered a detention prisoner, the person arrested must be placed in jail even for just a short while. The maltreatment does not really require physical injuries. Any kind of punishment not authorized or although authorized if executed in excess of the prescribed degree is covered. If the maltreatment was done in order to extort confession, the penalty is qualified to the next higher degree. If the acts of maltreatment constitute torture, there is a separate criminal liability from the crime under the RPC. Torturous acts are not absorbed in, nor do they absorb other crimes. [Section 15, RA 9745] RA 9372: HUMAN SECURITY ACT Failure to Deliver Suspect to the Proper Judicial Authority within Three Days (Section 20): 1. The offender is a police or law enforcement personnel who has apprehended or arrested, detained and taken custody of a person; 2. The person detained is charged with or suspected of the crime of terrorism or conspiracy to commit terrorism; 3. The offender fails to deliver such charged or suspected person to the proper judicial authority within the period of 3 days. Exception (Section 19): In the event of an actual or imminent terrorist attack, suspects may be detained for more than 3 days upon the written approval of: 1. Municipal, city, provincial or regional official of the Human Rights Commission; 2. Judge of the MTC, RTC, or Sandiganbayan; or 3. Justice of the CA nearest the place of arrest. The written approval must be procured within 5 days after the date of detention. Provided that within 3 days after detention, suspects whose connection with the terror attack or threat is not established, shall be released immediately.

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If the arrest is made during Saturdays, Sundays, holidays or after office hours, the arresting police or law enforcement personnel shall bring the person thus arrested to the residence of any of the officials mentioned above that is nearest the place where the accused was arrested Infidelity in the Custody of Detained Persons (Section 44): 1. The offender is any public officer who has direct custody of a detained person liable under the provisions of this Act; 2. The offender causes or allows the escape of such detained person by his deliberate act, misconduct, or inexcusable negligence; The offender shall suffer the penalty of: 1. 12 years and 1 day to 20 years of imprisonment, if the detained person has already been convicted and sentenced in a final judgment of a competent court; 2. 6 years and 1 day to 12 years of imprisonment, if the detained person has not been convicted and sentenced in a final judgment of a competent court. The public officer is punished under the Human Security Act and not under infidelity in the custody of prisoners in the RPC (Articles 223-224), if the detained person is charged with or suspected of the crime of terrorism or conspiracy to commit terrorism. False Prosecution (Section 50): Upon acquittal, any person who is accused of terrorism shall be entitled to the payment of damages in the amount of P500,000 for every day that he/she has been detained or deprived of liberty or arrested without a warrant as a result of such an accusation. The amount of damages shall be automatically charged against the appropriations of the police agency or the Anti-Terrorism Council that brought or sanctioned the filing of the charges against the accused. It shall also be released within 15 days from the date of the acquittal of the accused. The award of damages mentioned above shall be without prejudice to the right of the acquitted accused to file criminal or administrative charges against those responsible for charging him with the case of terrorism. Any officer, employee, personnel, or person who delays the release or refuses to release the amounts awarded to the individual acquitted of the crime of terrorism as directed in the paragraph immediately

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preceding shall suffer the penalty of 6 months of imprisonment. SECTION TWO – ANTICIPATION, PROLONGATION, AND ABANDONMENT OF THE DUTIES AND POWERS OF PUBLIC OFFICE

f. Article 236 – Anticipation of Duties of a Public Officer Elements: 1. Offender is entitled to hold a public office or employment, either by election or appointment; 2. The law requires that he should first be sworn in and/or should first give a bond; 3. He assumes the performance of the duties and powers of such office; 4. He has not taken his oath of office and/or given the bond required by law.

g. Article 237 – Prolonging Performance of Duties and Powers Elements: 1. Offender is holding a public office; 2. The period provided by law, regulations or special provision for holding such office, has already expired; 3. He continues to exercise the duties and powers of such office. The offenders here can be those suspended, separated, declared over-aged, or dismissed.

h. Article 238 – Abandonment of Office or Position Elements: 1. Offender is a public officer; 2. He formally resigns from his position; 3. His resignation has not yet been accepted; 4. He abandons his office to the detriment of the public service. For the resignation to be formal, it has to be in written form. The offense is qualified when the purpose of the abandonment is to evade the discharge of duties of preventing, prosecuting, or punishing any of the crimes falling within Title One and Chapter One of Title Three of book two of the RPC.

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Abandonment of Office or Position (Art. 238) Committed by public officer

Dereliction of Duty (Art. 208)

Committed only by public officers who have the duty any to institute prosecution for the punishment of violations of the law

There is actual abandonment through resignation to evade the discharge of duties

Public officer does not abandon his office but merely fails to prosecute a violation of the law.

SECTION THREE – USURPATION OF POWERS AND UNLAWFUL APPOINTMENTS

i. Article 239 – Usurpation of Legislative Powers Elements: 1. Offender is an executive or judicial officer; 2. He: a. makes general rules or regulations beyond the scope of his authority; or b. attempts to repeal a law; or c. suspends the execution thereof. Arts. 239-241 punish interference by public officers of the executive or judiciary with the functions of another department of government to keep them within legitimate confines of their respective jurisdictions. Legislative officers are not liable for usurpation of powers. The remedy is to file a petition for prohibition or injunction.

j. Article 240 – Usurpation of Executive Functions Elements: 1. Offender is a judge; 2. That he: a. assumes a power pertaining to the executive authorities, or b. obstructs the executive authorities in the lawful exercise of their powers. Legislative officers are not liable for usurpation of powers

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k. Article 241 – Usurpation of Judicial Functions Elements: 1. Offender is an officer of the executive branch of the government; 2. That he: a. assumes judicial powers, or b. obstructs the execution of any order or decision rendered by any judge within his jurisdiction.

l. Article 242 – Disobeying Request for Disqualification Elements: 1. Offender is a public officer; 2. A proceeding is pending before such public officer; 3. There is a question brought before the proper authority regarding his jurisdiction, which is not yet decided; 4. He has been lawfully required to refrain from continuing the proceeding; 5. He continues the proceeding. The disobedient officer is liable even if the jurisdictional question is resolved in his favor.

m. Article 243 – Orders or Request by Executive Officer to Any Judicial Authority Elements: 1. Offender is an executive officer; 2. He addresses any order or suggestion to any judicial authority; 3. The order or suggestion relates to any case or business coming within the exclusive jurisdiction of the courts of justice. The purpose is to maintain the independence of the judiciary from executive dictations.

n. 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 qualifications therefore;

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Offender knows that his nominee or appointee lacks the qualification at the time he made the nomination or appointment.

This can also be covered by RA 3019. Recommending, knowing that the person recommended is not qualified is not a crime.

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Solicit – to propose earnestly and persistently something unchaste and immoral to a woman. The advances must be immoral or indecent. Proof of solicitation is not necessary when there is sexual intercourse. Abuse against chastity is not absorbed in rape because the basis of penalizing the acts is different from each other

There must be a law providing for the qualifications of a person to be nominated or appointed to a public office.

o. Article 245 – Abuses against Chastity Modes: 1. Soliciting or making immoral or indecent advances to a woman interested in matters pending before the offending officer for decision, or with respect to which he is required to submit a report to or consult with a superior officer; 2. Soliciting or making immoral or indecent advances to a woman under the offender’s custody; 3. Soliciting or making immoral or indecent advances to the wife, daughter, sister or relative within the same degree by affinity of any person in the custody of the offending warden or officer. Elements: 1. Offender is a public officer; 2. He solicits or makes immoral or indecent advances to a woman; 3. Such woman is – a. interested in matters pending before the offender for decision, or with respect to which he is required to submit a report to or consult with a superior officer; or b. under the custody of the offender who is a warden or other public officer directly charged with the care and custody of prisoners or persons under arrest; or c. the wife, daughter, sister or relative within the same degree by affinity of the person in the custody of the offender. The crime is consummated by mere proposal. The mother of the person in the custody of the public officer is not included. If the offender were not the custodian, then crime would fall under Republic Act No. 3019.

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H. Title VIII. Crimes against Persons 1.

1.

c.

Chapter I: Destruction of Life a. Article 246: Parricide b. Article 247: Death or Physical Injuries Under Exceptional Circumstances c. Article 248: Murder d. Article 249: Homicide e. Article 250: Penalty for Frustrated Parricide, Murder or Homicide f. Article 251: Death Caused in Tumultuous Affray g. Article 252: Physical Injuries Caused in Tumultuous Affray h. Article 253: Giving Assistance to Suicide i. Article 254: Discharge of Firearms j. Article 255: Infanticide k. Article 256: Intentional Abortion l. Article 257: Unintentional Abortion m. Article 258: Abortion Practiced by the Woman Herself or by Parents n. Article 259: Abortion by a Physician or Midwife and Dispensing of Abortives o. Article 260: Responsibility of Participants in a Duel p. Article 261: Challenging to a Duel Chapter II: Physical Injuries a. Article 262: Mutilation b. Article 263: Serious Physical Injuries c. Article 264: Administering Injurious Substances or Beverages d. Article 265: Less Serious Physical Injuries e. Article 266: Slight Physical Injuries and Maltreatment f. Article 266-A: Rape (amended by RA 8353)

About this Title: The essence of crimes involves the taking of human life, destruction of the fetus, or inflicting injuries.

1. Chapter I: Destruction of

Life

a. Article 246 – Parricide Elements: 1. Person is killed; 2. Deceased is killed by the accused; 3. Deceased is the accused's a. legitimate/illegitimate father b. legitimate/illegitimate mother

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legitimate/illegitimate child (should not be less than 3 days old, otherwise crime is infanticide) d. other legitimate ascendant e. other legitimate descendant f. legitimate spouse Relationship This is the essential element of this crime – relationship of offender with the victim; except for spouses, only relatives by blood and in direct line. Hence, adopted children are not included. [Reyes] It must be alleged in the information. Wife of victim cannot be convicted of parricide if charged only with murder. However, relationship must be considered aggravating even if not alleged. [People v. Jumawan, G.R. No. 187495 (2014)] Spouse must be legitimate. Muslim husbands with several wives can be convicted of parricide only in case the first wife is killed. [People v. Subano, G.R. No. L-20338 (1967)] A stranger who cooperates and takes part in the commission of the crime of parricide is not guilty of parricide but only homicide or murder, as the case may be. [People v. Patricio, G.R. No. L-20651 (1923); People v. Echaluce, G.R. No. L-29776 (1975)] The law does not require knowledge of relationship between offender and victim. [Reyes] Parricide shall not be punished by reclusion perpetua to death in the following cases: 1. Reckless or simple imprudence [Art. 365] 2. Parricide by mistake [Art. 49] 3. Parricide under exceptional circumstances [Art. 247]

b. Article 247 – Death or Physical Injuries Under Exceptional Circumstances Elements: 1. A legally married person, or a parent, surprises his spouse or his daughter, the latter under 18 years of age and living with him in the act of sexual intercourse with another person; 2. 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. 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.

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Not a Felony This article does not define a felony, rather it serves as a defense for a person charged with parricide, homicide or serious physical injuries. If all the requisites have been met, the defendant will be sentenced to destierro instead of the severe penalty for the aforementioned crimes. If less serious or slight physical injuries are inflicted, there is no criminal liability. [Reyes] Spouse The wife is also entitled to the benefits of this article. The phrase “any legally married person” and the word “spouse” include the wife. This does not apply if the accused is a common-law spouse. Parents Parents need not be legitimate. “Living with parent(s)” – understood to be in their own dwelling. If done in a motel, article does not apply. Purpose This means “to unexpectedly.”

come

upon

suddenly

and

If the accused did not surprise the supposed offenders in the very act of committing adultery but thereafter, he cannot invoke the privilege of Art. 247. [People v. Gonzales, G.R. No. 46310 (1939)] Justice Laurel’s Dissent: Must the offended husband look on in the meantime and wait until the very physical act of coition take place? This interpretation is far from being rational and certainly does violence to the reason and purpose of the law. Immediately Thereafter There is no set time as jurisprudence has held 1 hour or even 4 hours as “immediately thereafter”. However, the act done must be a direct result of the outrage of the cuckolded spouse, and a continuous act from the moment of the surprising. Article does not apply: 1. If the surprising took place before any actual sexual intercourse could be done. 2. If the daughter is married. Although the article does not use the word “unmarried,” this article applies only when the daughter is single because while under 18 and single, she is still under parental authority. If she is married, her husband alone can claim the benefits of this article.

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Evidence of the victim’s promiscuity is inconsequential to the killing. The offender must prove that he actually surprised his wife and [her paramour] in flagrante delicto, and that he killed the man during or immediately thereafter. [People v. Puedan, G.R. No. 139576 (2002)] LIABILITY FOR PHYSICAL INJURIES SUFFERED BY THIRD PERSONS In one case, two other persons suffered physical injuries as they were caught in the crossfire when the accused shot the victim. A complex crime of double frustrated murder was not committed as the accused did not have the intent to kill the two victims. Here, the accused did not commit murder when he fired at the paramour of his wife. No aberratio ictus because he was acting lawfully. Inflicting death under exceptional circumstances is not murder. [People v. Abarca, G.R. No. 74433 (1987)]

c. Article 248 – Murder Elements: 1. Person was killed; 2. Accused killed him; 3. Killing attended by any of the following qualifying circumstances a. with treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense, or of means or persons to insure or afford impunity; b. in consideration of a price, reward or promise; c. 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; d. on occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic, or any other public calamity; e. with evident premeditation; f. with cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse. 4. The killing is not parricide or infanticide. Murder – The unlawful killing of any person which is not parricide or infanticide with any of the circumstance mentioned in Art. 248.

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QUALIFYING CIRCUMSTANCES One attendant qualifying circumstance is enough. If there are more than one alleged in the information for murder, only one will qualify the killing to murder and the other circumstances will be taken as generic aggravating circumstance.

murder. If the primordial criminal intent of the offender is to destroy property with the use of pyrotechnics and incidentally, somebody within the premises is killed, the crime is arson with homicide, a single indivisible crime penalized under Art. 326, which is death as a consequence of arson.

Any of the qualifying circumstances enumerated in Art. 248 must be alleged in the information. When the other circumstances are absorbed or included in one qualifying circumstance, they cannot be considered as generic aggravating.

Intent to kill must be present for the use of fire to be appreciated as a qualifying circumstance. [People v. Pugay, G.R. No. L-74324 (1988)]

TREACHERY Treachery absorbs the aggravating circumstance of abuse of superior strength and aid of armed men. [People v. Sespeñe, G.R. No. L-9346 (1957)] The essence of treachery is that the offended party was denied the chance to defend himself because of the means, methods, or forms of attack deliberately adopted by the offender were not merely incidental to the killing. Killing of a person with treachery is murder even if there was no intent to kill. [People v. Cagoco, G.R. No. L-38511 (1933)] Killing of a child of tender age is qualified by treachery. [People v. Valerio, G.R. No. L-4116 (1982)] INTENT TO KILL When the victim is already dead, intent to kill becomes irrelevant. It is important only if the victim did not die to determine if the felony is physical injury or attempted or frustrated homicide. “Employing means or persons to insure or afford impunity” – means are employed by the accused to prevent his being recognized or to secure himself against detection and punishment PRICE, REWARD, OR PROMISE The person who received the price or reward or who accepted a promise of price or rewards and would not have killed the victim were it not for that price, reward, or promise is a principal by direct participation.

POISON Treachery and evident premeditation are inherent in murder by poison only if the offender has the intent to kill the victim by use of poison. EVIDENT PREMEDITATION Act of the offender manifestly indicating that he clung to his determination to kill his victim. It is absorbed in price, reward or promise, if without the premeditation the inductor would not have induced the other to commit the act but not as regards the one induced. The prosecution must prove (1) the time when the offender determined (conceived) to kill his victim; (2) an act of the offender manifestly indicating that he clung to his determination to kill his victim; and (3) a sufficient lapse of time between the determination and the execution of the killing. CRUELTY Under Article 14, the generic aggravating circumstance of cruelty requires that the victim be alive, when the cruel wounds were inflicted and, therefore, there must be evidence to that effect. Injuries or wounds, not necessary for the killing of the victim, must be inflicted deliberately by the offender. Yet, in murder, aside from cruelty, any act that would amount to scoffing or decrying the corpse of the victim will qualify the killing to murder. Outraging – to commit an extremely vicious or deeply insulting act Scoffing – to jeer; implies a showing of irreverence

The person who gave the price or reward or who made the promise is a principal by induction. FIRE When a person is killed by fire, the primordial criminal intent of the offender is considered. If the primordial criminal intent of the offender is to kill and fire was only used as a means to do so, the crime is only

d. Article 249 – Homicide Elements: 1. Person was killed; 2. Offender killed him without any justifying circumstances;

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Offender had the intention to kill, which is presumed; Killing was not attended by any of the qualifying circumstances of murder, or by that of parricide or infanticide

Corpus delicti – means the actual commission of the crime charged In all crimes against persons in which the death of the victim is an element of the offense, there must be satisfactory evidence of (1) the fact of death and (2) the identity of the victim INTENT TO KILL Intent to kill is conclusively presumed when death resulted. Evidence of intent to kill is important only in attempted or frustrated homicide. In attempted or frustrated homicide, there is intent to kill. In physical injuries, there is none. However, if as a result of the physical injuries inflicted, the victim died, the crime will be homicide because the law presumes intent to kill and punishes the result, and not the intent of the act. The accused will, however, be entitled to the mitigating circumstance of lack of intent to commit so grave a wrong. No offense of frustrated homicide through imprudence. The element of intent to kill in frustrated homicide is incompatible with negligence or imprudence. [People v. Castillo, C.A. No. 227 (1946)] OTHER NOTES: Physical injuries sufficient to cause death are one of the essential elements of frustrated homicide. In accidental homicide wherein death of a person is brought about by a lawful act performed with proper care and skill and without homicidal intent, there is no liability. Use of unlicensed firearm is an aggravating circumstance in homicide.

e. Article 250 - Penalty for Frustrated Parricide, Murder or Homicide Courts may impose a penalty: 1. 2 degrees lower for frustrated parricide, murder, or homicide 2. 3 degrees lower for attempted parricide, murder, or homicide.

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For frustrated parricide, homicide or murder, the courts, in view of the facts of the case, may impose a penalty lower by one degree than that imposed under Art. 50. Art. 50 provides that the penalty next lower in degree than that prescribed by law for the consummated felony shall be imposed upon a principal in a frustrated felony. Thus, under Art. 50, the court can impose a penalty of TWO DEGREES LOWER for frustrated parricide, murder, or homicide. For attempted parricide, homicide, or murder, the courts, in view of the facts of the case may impose a penalty by one degree than that imposed under Art. 51. Art. 51 provides that the penalty lower by two degrees than that prescribed by law for the consummated felony shall be imposed upon the principal in an attempted felony. Thus, under Art. 250, the court can impose a penalty of THREE DEGREES LOWER for attempted parricide, murder, or homicide. Note: Any attempt on, or conspiracy against, the life of the Chief Executive of the Philippines or that of any member of his family, or against the life of any member of his cabinet or that of any member of the latter’s family, shall suffer the penalty of death.

f. Article 251 - Death Caused in Tumultuous Affray Elements: 1. There are several persons; 2. They do not compose groups organized for the common purpose of assaulting and attacking each other reciprocally; 3. These several persons quarreled and assaulted one another in a confused and tumultuous manner; 4. Someone was killed in the course of the affray; 5. It cannot be ascertained who actually killed the deceased; 6. The person or persons who inflicted serious physical injuries or who used violence can be identified. Tumultuous affray – is a commotion in a confused manner to an extent that it would not be possible to identify who the killer is if death results, or who inflicted the serious physical injury, but the person or persons who used violence are known. It exists when at least four persons took part [Reyes]. • The groups must not be organized to mutually assault or fight each other, otherwise the

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hostilities would not be considered as a tumultuous affray. [People v. Abiog, G.R. No. L12747 (1917)] Who are liable? 1. The person or persons who inflicted the serious physical injuries 2. If it is not known who inflicted the serious physical injuries on the deceased, all persons who used violence upon the person of the victim are liable. If there is conspiracy, this crime is not committed. The crime would be murder or homicide. The crimes committed might be disturbance of public order, or if participants are armed, it could be tumultuous disturbance, or if property was destroyed, it could be malicious mischief.

2.

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Lending his assistance to another to commit suicide to the extent of doing the killing himself.

Giving assistance to suicide means giving means (arms, poison, etc.) or whatever manner of positive and direct cooperation (intellectual aid, suggestions regarding the mode of committing suicide, etc.). If the person does the killing himself, the penalty is similar to that of homicide, which is reclusion temporal. The relation of the offender to the person committing suicide is not material. The law does not distinguish. Hence, penalty would be the same if the offender is the father, mother or child. There can be no qualifying circumstance because the determination to die must come from the victim. The person attempting suicide is not liable. Reason: He should be pitied, not punished.

g. Article 252 - Physical Injuries Caused in Tumultuous Affray Elements: 1. There is a tumultuous affray; 2. A participant or some participants thereof suffered serious physical injuries or physical injuries of a less serious nature only; 3. The person responsible thereof cannot be identified; 4. All those who appear to have used violence upon the person of the offended party are known. Unlike in Article 251, the injured party in this article must be one or some of the participants in the affray. All those who appear to have used violence shall suffer the penalty next lower in degree than that provided for the serious physical injuries inflicted. For less serious physical injuries, the penalty is arresto mayor from five to fifteen days. Physical injury should be serious or less serious. No crime of physical injuries resulting from a tumultuous affray if the physical injury is only slight because slight physical injury is considered as inherent in a tumultuous affray.

A pregnant woman who tried to commit suicide by means of poison, but instead of dying, the fetus in her womb was expelled, is not liable for abortion. In order to incur criminal liability for the result not intended, one must be committing a felony [Art. 4; Reyes]. Euthanasia – commonly known as mercy-killing; the practice of painlessly putting to death a person suffering from some incurable disease. • This article does not contemplate euthanasia where the crime is murder (if without consent; with consent, covered by Article 253). Euthanasia is not lending assistance to suicide. In euthanasia, the victim is not in a position to commit suicide. • A doctor who resorts to euthanasia of his patient may be liable for murder. But if the patient himself asks to be killed by his doctor, this Article applies. [Reyes]

i. Article 254 - Discharge of Firearms

h. Article 253 - Giving Assistance to Suicide

Elements: 1. Offender discharges a firearm against or at another person. 2. Offender has no intention to kill that person.

Modes: 1. Assisting another to commit suicide, whether the suicide is consummated or not;

No crime if firearm is not discharged. It is essential for prosecution to prove that the discharge of firearm was directed precisely against the offended party.

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The crime is the discharge of firearm, even if the gun was not pointed at the offended party when it fired, as long as it was initially aimed by the accused at or against the offended party If there is intention to kill, it may be classified as attempted parricide, murder, or homicide. No presumed intent to kill if the distance is 200 meters. Intent to kill or animus inteficendi cannot be automatically drawn from the mere fact that the use of firearms is dangerous to life. Animus interficendi must be established with the same degree of certainty as is required of the other elements of the crime. The inference of intent to kill should not be drawn in the absence of circumstances sufficient to prove such intent beyond reasonable doubt. [Dado v. People G.R. No. 131421(2002)] There is a special complex crime of illegal discharge of firearm with serious or less serious physical injuries.

j. Article 255 – Infanticide Elements: 1. A child was killed by the accused; 2. The deceased child was less than 3 days old (72 hours). Infanticide – the killing of any child less than three days of age, whether the killer is the parent or grandparent, any other relative of the child, or a stranger. If the offender is the parent and the victim is less than three days old, the crime is infanticide and not parricide. A stranger who cooperates in the perpetration of infanticide committed by the mother or grandparent on the mother’s side, is liable for infanticide, but he must suffer the penalty prescribed for murder. It is necessary that the child be born alive and viable (capable of independent existence). [US v. Vedra, G.R. No. 4779 (1908)] There is no infanticide when the child was born dead, or although born alive, it could not sustain an independent life when it was killed. Only the mother and maternal grandparents of the child are entitled to the mitigating circumstance of concealing the dishonor. Concealment of dishonor is

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not an element of infanticide, it merely lowers the penalty. If the child is abandoned without any intent to kill and death results as a consequence, the crime committed is not infanticide but abandonment under Article 276.

k. Article 256 - Intentional Abortion Elements: 1. There is a pregnant woman; 2. Violence is exerted, or drugs or beverages administered, or that the accused otherwise acts upon such pregnant woman; 3. As a result of the use of violence or drugs or beverages upon her, or any other act of the accused, the fetus dies, either in the womb or after having been expelled therefrom; 4. The abortion is intended. Abortion – the willful killing of the foetus in the uterus or the violent expulsion of the foetus from the maternal womb which results in the death of the foetus. [Reyes citing Guevarra] Ways of committing intentional abortion • Using any violence upon the person of the pregnant woman; • Acting, but without using violence, without the consent of the woman. (By administering drugs or beverages upon such pregnant woman without her consent.) • Acting (by administering drugs or beverages), with the consent of the pregnant woman. Abortion v. Infanticide Abortion

Infanticide

Fetus could sustain an Fetus could not sustain independent life after independent life. No separation from the legal viability. mother’s womb. If the mother as a consequence of abortion suffers death or physical injuries, there is a complex crime of murder or physical injuries and abortion. In intentional abortion, the offender must know of the pregnancy because the particular criminal intent is to cause an abortion. If the woman turns out not to be pregnant and someone performs an abortion upon her, he is liable for an impossible crime if the woman suffers no physical injury.

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If she dies or suffers injuries, the crime will be homicide, serious physical injuries, etc. FRUSTRATED ABORTION committed if the fetus that is expelled is viable and, therefore, not dead as abortion did not result despite the employment of adequate and sufficient means to make the pregnant woman abort.

l. Article 257 - Unintentional Abortion Elements: 1. There is a pregnant woman; 2. Violence is used upon such pregnant woman without intending an abortion; 3. The violence is intentionally exerted; 4. Result of violence – fetus dies, either in the womb or expelled therefrom Unintentional abortion requires physical violence inflicted deliberately and voluntarily by a third person upon the pregnant woman, without intention to cause the abortion. If the pregnant woman was killed by violence by her husband, the crime committed is the complex crime of parricide with unintentional abortion. Unintentional abortion may be committed through negligence as it is enough that the use of violence be voluntary. In one case, the accused was declared guilty of the crime of unintentional abortion through reckless imprudence for having bumped a calesa which resulted in a pregnant woman bumping her abdomen against the wall of the calesa and eventually led to an abortion. [Reyes citing a Decision of the Supreme Court of Spain] If the act of violence is not felonious, that is, act of self-defense, and there is no knowledge of the woman’s pregnancy, there is no liability. Mere boxing of the stomach taken together with the immediate strangling of the victim in a fight, is not sufficient proof to show an intent to cause abortion. [People v. Salufrania, G.R. No. L-50884 (1988)] For the crime of abortion, even unintentional, to be held committed, the accused must have known of the pregnancy. [People v. Carnaso, CA, 61 O.G. 3420]

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m. Article 258 - Abortion Practiced by the Woman Herself or by Parents Elements: 1. There is a pregnant woman who has suffered an abortion; 2. Abortion is intended; 3. Abortion is caused by – a. The pregnant woman herself; b. Any other person, with her consent; or c. Any of her parents, with her consent for the purpose of concealing her dishonour. If the purpose of abortion is to conceal dishonor, mitigation applies only to pregnant woman and not to parents of pregnant woman, unlike in infanticide. If the purpose of parents is not to conceal dishonor, the crime is intentional abortion.

n. Article 259 - Abortion by a Physician or Midwife and Dispensing of Abortives Elements: 1. There is a pregnant woman who has suffered an abortion; 2. The abortion is intended; 3. Offender, who must be a physician or midwife, caused or assisted in causing the abortion; 4. Said physician or midwife took advantage of his or her scientific knowledge or skill. The penalties provided for intentional abortion shall be imposed in the maximum period for physicians and midwives violating this article. Reason: heavier guilt in making use of their knowledge for the destruction of human life, when it should be used only for its preservation. [Reyes citing Albert] If the abortion is produced by a physician to save the life of the mother, there is no liability. Elements (for pharmacists): 1. The offender is a pharmacist; 2. There is no proper prescription from a physician; 3. The offender dispenses any abortive. This article punishes a pharmacist who merely dispenses with an abortive without the proper prescription of a physician.

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It is not necessary that the pharmacist knows that the abortive would be used to cause an abortion. What is punished is the dispensing of the abortive without the proper prescription. It is not necessary that the abortive be actually used either. If pharmacist knew that the abortive would be used for abortion, he would be liable as an accomplice in the crime of abortion.

o. Article 260 - Responsibility of Participants in a Duel

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If one challenges another to a duel by shouting “Come down, Olympia, let us measure your prowess. We will see whose intestines will come out. You are a coward if you do not come down”, the crime of challenging to a duel is not committed. What is committed is the crime of light threats under Article 285, paragraph 1. [People v. Tacomoy, G.R. No. L-4798 (1951)]

2. Chapter II: Physical Injuries a. Article 262 – Mutilation

Modes: 1. Killing one’s adversary in a duel; 2. Inflicting upon such adversary physical injuries; 3. Making a combat although no physical injuries have been inflicted.

First Mode - Mutilation Intentionally mutilating another by depriving him, either totally or partially, of some essential organ for reproduction; (Mutilation)

Persons liable 1. The person who killed or inflicted physical injuries upon his adversary, or both combatants in any other case, as principals. 2. The seconds, as accomplices.

Elements: 1. There be a castration, that is, mutilation of organs necessary for generation, such as the penis or ovarium; 2. The mutilation is caused purposely and deliberately

Duel – a formal or regular combat previously consented to by two parties in the presence of two or more seconds of lawful age on each side, who make the selection of arms and fix all the other conditions of the fight to settle some antecedent quarrel.

Second Mode - Mayhem Intentionally making other mutilation, that is, by lopping or clipping off any part of the body of the offended party, other than the essential organ for reproduction, to deprive him of that part of his body.

If these are not the conditions of the fight, it is not a duel in the sense contemplated in the RPC. It will be a quarrel and anyone who killed the other will be liable for homicide or murder, as the case may be.

The offender must have the intention to deprive the offended party of a part of his body. If there is no such intention, the crime will be serious physical injuries.

There is no such crime nowadays because people hit each other even without entering into any preconceived agreement. This is an obsolete provision.

Mutilation – the lopping or clipping off of some part of the body Castration – intentionally mutilating another by depriving him, either totally or partially, of some essential organ for reproduction

p. Article 261 - Challenging to a Duel Modes: 1. Challenging another to a duel; 2. Inciting another to give or accept a challenge to a duel; 3. Scoffing at or decrying another publicly for having refused to accept a challenge to fight a duel. Persons Responsible: 1. Challenger 2. Instigators

Mayhem – Basically, other intentional mutilation. It is intentionally making mutilation other than some essential organ for reproduction and to deprive him of that part of the body

b. Article 263 - Serious Physical Injuries Modes of Commission: 1. By wounding; 2. By beating; 3. By assaulting; or

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4.

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By administering injurious substance. (Art. 264)

What are serious physical injuries? They are when the injured person, in consequence of the physical injuries inflicted— 1. becomes insane, imbecilic, impotent or blind 2. (a) loses the use of speech or the power to hear or to smell, or loses an eye, a hand, a foot, an arm, or a leg, or (b) loses the use of any such member; or (c) becomes incapacitated for the work in which he was theretofore habitually engaged, in consequence of the physical injuries inflicted; 3. (a) becomes deformed; or (b) loses any other member of his body; or (c) loses the use thereof; or (d) becomes ill or incapacitated for the performance of the work in which he was habitually engaged for more than 90 days; 4. becomes ill or incapacitated for labor for more than 30 days (but must not be more than 90 days). In physical injuries, there must be no intent to kill, otherwise the crime is frustrated/attempted murder or homicide as the case may be. Physical Injuries v. Attempted or Frustrated Homicide Attempted or Frustrated Physical Injuries Homicide May be committed even if no No intent to kill physical injuries are inflicted offended party Offender has intent to kill party UNDER THE FIRST TYPE 1. Impotence means an inability to copulate. It includes sterility. 2. Penalty is one degree higher when the victim is under 12 years of age. 3. Blindness under this type must be of two eyes while blindness under the second type requires the loss of an eye only. Mere weakness of vision is not contemplated. UNDER THE SECOND TYPE 1. Loss of power to hear must be of both ears. If hearing in only one ear is lost, it falls under the third type. 2. Loss of the use of hand or incapacity for work must be permanent. 3. All the body parts mentioned are principal members of the body (eye, hand, foot etc.)

UNDER THE THIRD TYPE 1. It covers any other part of the body which is not a principal member of the body. 2. Fingers of the hand are not principal members and the loss of such fall under the third type. However, if it is proven that the loss of the fingers resulted in the loss of the use of the hand itself, it would fall under the second type. [US v. Punsalan, G.R. No. 7539 (1912)] Deformity – physical ugliness, permanent and definite abnormality. It must be conspicuous and visible. Elements of deformity: 1. physical ugliness, 2. permanent and definite abnormality, and 3. it must be conspicuous and visible. All these elements must concur. Illustrations: 1. Loss of molar tooth – This is not deformity as it is not visible. 2. Loss of permanent front tooth – This is deformity as it is visible and permanent. 3. Loss of milk front tooth – This is not deformity as it is visible but will be naturally replaced. Deformity by loss of teeth refers to injury which cannot be repaired by the action of nature. Loss of both outer ears is a deformity. Loss of the lobule of the ear is a deformity. Loss of index and middle fingers only is either deformity or loss of a member, not a principal one, of his body or use of the same. Loss of power to hear of right ear only is loss of use of other part of body. UNDER THE FOURTH TYPE Illness – when the wound inflicted did not heal with a certain period of time. Note that under serious physical injuries of the fourth type, illness or incapacity is required, NOT medical attendance. Paragraphs 2 and 3 refers to the “work in which he was theretofore habitually engaged” Must the injured party have a vocation at the time of the injury? YES, insofar as these two paragraphs are concerned. Incapacity therefore must relate to a certain kind of work only.

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However, in paragraph 4, incapacity for any kind of work is acceptable, because the phrase “incapacity for labor” is used. Injury requiring hospitalization for more than thirty days is serious physical injuries under paragraph 4. When the category of the offense of serious physical injuries depends on the period of illness or incapacity for labor, there must be evidence of the length of that period; otherwise, the offense is only slight physical injuries. Lessening of efficiency due to injury is NOT incapacity. Distinguished from mutilation: In mutilation, the body parts should have been purposely and deliberately lopped or clipped off. This intention is not present in serious physical injuries. No attempted or frustrated crime of physical injuries This felony is defined by the gravity of the injury. It is a crime of result. As long as there is no injury, there can be no attempted or frustrated stage thereof. Classification of physical injuries: 1. Between less serious physical injuries and serious physical injuries, do not consider the period of medical treatment. Only consider the period when the offended party is rendered incapacitated for labor. 2. When the injury created a deformity upon the offended party, disregard the healing duration or the period of medical treatment involved. At once, it is considered serious physical injuries. Serious physical injuries is punished with higher penalties in the following cases: 1. If it is committed against any of the persons referred to in the crime of parricide under Article 246; 2. If any of the circumstances qualifying murder attended its commission.

c. Article 264 - Administering Injurious Substances or Beverages

3.

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No intent to kill.

If the accused did not know of the injurious nature of the substances administered, he is not liable under this article.

d. Article 265 - Less Serious Physical Injuries Elements: 1. Offended party is incapacitated for labor for 10 days or more (but not more than 30 days), or needs medical attendance for the same period of time; 2. The physical injuries must not be those described in the preceding articles. Qualified as to penalty 1. A fine not exceeding P 500.00, in addition to arresto mayor, when a. There is a manifest intent to insult or offend the injured person; or b. There are circumstances adding ignominy to the offense. 2. A higher penalty is imposed when the victim is either – a. The offender’s parents, ascendants, guardians, curators or teachers; or b. Persons of rank or person in authority, provided the crime is not direct assault.

e. Article 266 - Slight Physical Injuries and Maltreatment Modes 1. Physical injuries incapacitated the offended party for labor from 1-9 days, OR required medical attendance during the same period; 2. Physical injuries which did not prevent the offended party from engaging in his habitual work or which did not require medical attendance; 3. Ill-treatment of another by deed without causing any injury. This involves even ill-treatment where there is no sign of injury requiring medical treatment.

Elements: 1. Offender inflicted upon another any serious physical injury; 2. It was done by knowingly administering to him any injurious substance or beverages or by taking advantage of his weakness of mind or credulity;

Slapping the offended party is a form of ill-treatment which is a form of slight physical injuries. But if the slapping is done to cast dishonor upon the person slapped, or to humiliate or embarrass the offended party out of a quarrel or anger, the crime is slander by deed.

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Between slight physical injuries and less serious physical injuries, not only the healing duration of the injury will be considered but also the medical attendance required to treat the injury. So the healing duration may be one to nine days, but if the medical treatment continues beyond nine days, the physical injuries would already qualify as less serious physical injuries. The medical treatment may have lasted for nine days, but if the offended party is still incapacitated for labor beyond nine days, the physical injuries are already considered less serious physical injuries. Where there is no evidence of actual injury, it is only slight physical injuries. In the absence of proof as to the period of the offended party’s incapacity for labor or of the required medical attendance, the crime committed is slight physical injuries.

f. Article 266-A – Rape (as amended by RA 8353) FIRST MODE INTERCOURSE

–

RAPE

BY

SEXUAL

Rape through sexual intercourse without consent of the woman Elements: 1. Offender is a man; 2. Offender had carnal knowledge of a woman; 3. Such act is accomplished under any of the following circumstances: a. By using force, threat or intimidation; b. When the woman is deprived of reason or is otherwise unconscious; c. By means of fraudulent machination or grave abuse of authority; d. When the woman is under 12 years of age (Statutory Rape) or is demented. SECOND MODE: RAPE THROUGH SEXUAL ASSAULT Elements: 1. Offender commits an act of sexual assault; 2. The act of sexual assault is committed by any of the following means: a. By inserting his penis into another person's mouth or anal orifice; or

3.

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b. By inserting any instrument or object into the genital or anal orifice of another person; The act of sexual assault is accomplished under any of the following circumstances: a. By using force or intimidation; or b. When the woman is deprived of reason or otherwise unconscious; or c. By means of fraudulent machination or grave abuse of authority; or d. When the woman is under 12 years of age or demented.

CLASSIFICATIONS OF RAPE 1. Rape by sexual intercourse a. Offended party is always a woman b. Offender is always a man. 2. Sexual assault a. Rape can now be committed by a man or a woman, that is, if a woman or a man uses an instrument on anal orifice of male, she or he can be liable for rape. b. Inserting a finger inside the genital of a woman is rape through sexual assault within the context of ‘object’. AGGRAVATING CIRCUMSTANCES: 1. If the victim: a. Is under 18 yrs. old, & the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity w/in the 3rd civil degree, or the common law spouse of the parent of the victim b. Is under the custody of the police / military authorities / law enforcement agency c. Is a religious and such legitimate vocation is known by the offender before or at the time of rape d. is a child below 7 yrs. old; e. suffered permanent or physical mutilation or disability by reason or on the occasion of rape 2. If the offender: a. is afflicted with a sexually transmissible disease & the virus / disease is transmitted to the victim; b. is a member of the AFP / PNP / any law enforcement agency / penal institution, & took advantage of his position; c. knew of the pregnancy of the offended party at the time of the commission of rape; d. knew of the mental disability, emotional disorder, & / or physical handicap of the offended party at the time of the commission of rape 3. If Rape is committed in full view of the spouse, parent, any of the children, or other

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relatives w/in the 3rd civil degree of consanguinity Old Anti-Rape Law v. RA 8353 Old Anti-Rape Law RA 8553 Crime against chastity Crime against persons Under the 2nd type, sexual May be committed by a assault may be committed man against a woman by any person against any only person PRIVATE CRIME Complaint must be filed by the woman or May be prosecuted even if her parents, the woman does not file a grandparents or complaint guardian if the woman was a minor or incapacitated Marriage of the victim w/ one of the offenders benefits not only the principal but also the accomplices and accessories

Marriage extinguishes the penal action only as to the principal (the person who married the victim), and cannot be extended to coprincipals in case of MULTIPLE RAPE

Marital rape recognized

Marital rape recognized

NOT

Complete penetration is NOT necessary. The slightest penetration—contact with the labia—will consummate the rape. There is NO crime of FRUSTRATED RAPE because in rape, from the moment the offender has carnal knowledge of the victim, he actually attains his purpose, all the essential elements of the offense have been accomplished. [People v. Orita, G.R. No. 88724 (1990)] Rape must have specific intent or lewd design. For rape to be consummated, a slight brush or scrape of the penis on the external layer of the vagina will not suffice. Mere touching of the external layer of the vagina without the intent to enter the same cannot be construed as slight penetration. Accused is only liable for ATTEMPTED RAPE. Conviction does not require a medico-legal finding of any penetration on the part of the woman. FORCE, THREAT, OR INTIMIDATION Force employed against the victim of the rape need not be of such character as could be resisted. When the offender has an ascendancy or influence over the girl, it is not necessary that she put up a determined resistance. A rape victim does not have the burden of

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proving resistance. [People v. Metin, G.R. No. 140781 (2003)] It is not necessary that the force employed against the complaining woman in rape to be so great or of such a character as could not be resisted. It is sufficient that the force used is sufficient to consummate the culprit’s purpose of copulating with the offended woman. [People v. Savellano, G.R. No. L-31227 (1974)] Intimidation must be viewed in light of the victim’s perception and judgment at the time of rape and not by any hard and fast rule. It is enough that it produces fear – fear that if the victim does not yield to the bestial demands of the accused, something would happen to her at the moment or thereafter, as when she is threatened with death if she reports the incident. [People v. Metin, supra.] The Supreme Court has ruled that the moral ascendancy or influence exercised by the accused over the victim substitutes for the element of physical force or intimidation such as those committed by: 1. Fathers against their daughters [People v. Bayona, G.R. No. 133343 (2000)] 2. Stepfathers against their stepdaughters [People v. Vitor, G.R. No. 113690 (1995)] 3. A godfather against his goddaughter [People v. Casil, G.R. No. 110836 (1995)] 4. Uncles against their nieces [People v. Betonio, G.R. No. 119165 (1997)] 5. The first cousin of the victim’s mother [People v. Perez, G.R. No. 129213 (1999)] WHEN THE OFFENDED PARTY IS DEPRIVED OF REASON OR IS OTHERWISE UNCONSCIOUS In one case, this was ruled to cover the rape of a 16year old mental retardate with the intellectual capacity of a 9-year-old, notwithstanding the victim’s actual age. “Deprived of reason or unconscious” means that the victim has no will to give consent intelligently and freely. The inquiry should likewise determine whether the victim was fully informed of all considerations so as to make a free and informed decision regarding the grant of consent. Whether the complaint stated that the victim was fast asleep or half-asleep or drowsy or semi-conscious is not determinative of the crime of rape. For he who lies with a woman while the latter is in a state of being drowsy is guilty of rape. Drowsiness is defined as the state of being drowsy, i.e., ready to fall asleep or halfasleep. [People v. Siarza, G.R. No. L-111682 (1997)]

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BY MEANS OF FRAUDULENT MACHINATION OR GRAVE ABUSE OF AUTHORITY Rape by means of fraudulent machinations and grave abuse of authority absorbs the crime of qualified and simple seduction. STATUTORY RAPE 1. Statutory rape is the rape of a woman who is below 12 years of age. Here, the victim is conclusively presumed incapable of giving consent to sexual intercourse with another. [People v. Negosa, G.R. Nos. 142856-7 (2003)] 2. This is consummated when the victim is below 12 yrs. old. Victim’s consent is immaterial, and so is the offender’s knowledge of the victim’s age. 3. Carnal knowledge of a child below 12 yrs. old even if she is engaged in prostitution is still considered statutory rape. Special qualifying circumstances have to be alleged in the information for it to be appreciated. [People v. Gallo] In this case, Gallo was found guilty of the crime of qualified rape with the penalty of death. The information filed against him does not allege his relationship with the victim, his daughter, thus, it CANNOT be considered as a qualifying circumstance. The case was reopened and the judgment is modified from death to reclusion perpetua. Since relationship qualifies the crime of rape, there must be clear proof of relationship. In People v. Berana, G.R. No. 123544 (1999), a 14-year old was raped by her brother-in-law. To effectively prosecute the accused for the crime of rape committed by a relative by affinity w/in the 3rd civil degree, it must be established that: 1. the accused is legally married to the victim’s sister; and 2. the victim and the accused’s wife are full or halfblood siblings. In this case, relationship was not adequately substantiated. RAPE THROUGH SEXUAL ASSAULT The insertion of fingers constitutes consummated rape through sexual assault under RA 8353. The contact of the male’s penis with the woman’s vagina is referred to as ‘rape with sexual intercourse”, while the sexual abuse under par.2 of Art.266-A, RPC is categorized as “rape through sexual assault”. Insertion of penis into the mouth of a 10-year old boy is “Rape by Sexual Assault” punished under par.2, Article 266-A, RPC. [Ordinario v. People, G.R. No. 155415 (2004)]

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Evidence which may be accepted in the prosecution of rape: Any physical overt act manifesting resistance against the act of rape in any degree from the offended party; or Where the offended party is so situated as to render him/her incapable of giving his consent Rape shield rule - means that the character of the offended woman is immaterial in rape. An accused may be convicted of rape on the sole testimony of the offended woman. When several persons conspired to rape a single victim, each shall be liable for the rape committed personally by him, as well as those committed by the others. What Determines the Number of Times the Victim was Raped? In one case, the accused ejaculated twice during the time that he consummated the rape. He did not withdraw his penis to insert it again into the vagina or to touch the labia majora and the labia minora when he ejaculated the second time. It is not the number of times that appellant ejaculated but the penetration or ‘touching’ that determines the consummation of the sexual act. Thus appellant committed only one count of rape. [People v. Ferrer, G.R. No. 142662 (2001); People v. Orilla, G.R. Nos. 148939-40 (2004)] Effect of Pardon 1. Subsequent valid marriage between the offender and the offended party shall extinguish the criminal action or the penalty imposed but only as to the husband 2. When the legal husband is the offender, the subsequent forgiveness by the wife as the offended party shall extinguish the criminal action or the penalty, provided that their marriage is NOT VOID ab initio. Rape with homicide is a special complex crime if it is committed by reason or on the occasion of the rape. Rape may, likewise, be committed in a room adjacent to where the victim's family is sleeping, or even in a room shared with other people. There is no rule that rape can only be committed in seclusion. [People v. Glivano, G.R. No. 177565 (2008)] The force, violence or intimidation in rape is a relative term, depending not only on the age, size, and strength of the parties but also on their relationship with each other. [People v. Tuazon, G.R. No. 168650 (2007)]

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Attempted Rape with Homicide and Rape with Homicide Art 266-B defines and sets forth the composite crimes of attempted rape with homicide and rape with homicide. In both composite crimes, the homicide is committed by reason or on the occasion of rape. As can be noted, each of said composite crimes is punished with a single penalty. The phrase by reason of the rape obviously conveys the notion that the killing is due to the rape, the offense the offender originally designed to commit. The victim of the rape is also the victim of the killing. To understand what homicide may be covered by the phrase on the occasion of the rape, a resort to the meaning the framers of the law intended to convey thereby is helpful. The legislative intent on the import of the phrase on the occasion of the rape to refer to a killing that occurs immediately before or after, or during the commission itself of the attempted or consummated rape, where the victim of the homicide may be a person other than the rape victim herself for as long as the killing is linked to the rape, became evident. [People v. Villaflores, G.R. No. 184926 (2012)]

g. Special Laws RA 9262: Anti-Violence against Women and their Children Act of 2004 Violence against women and their children – refers to any act or series of acts committed by any person against a women who is wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. Battered Woman Syndrome as a Defense – Victim-survivors who are found by the courts to be suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code. In the determination of the state of mind of the woman who was suffering from battered woman syndrome at the time of the commission of the crime,

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the courts shall be assisted by expert psychiatrists/ psychologists. [Sec. 26, RA 9262] Punishable Acts:

Sec. 5. Acts of Violence Against Women and Their Children - The crime of violence against

women and their children is committed through any of the following acts: (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; (4) Preventing the woman in engaging in any legitimate profession, occupation, business or activity or controlling the victim's own money or properties, or solely controlling the conjugal or common money, or properties; (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;

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(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. RA 9775: Anti-Child Pornography Act of 2009

d.

e.

f. g.

Sec. 3. Definition of Terms. a.

b.

c.

"Child" refers to a person below eighteen (18) years of age or over, but is unable to fully take care of himself/herself from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition. For the purpose of this Act, a child shall also refer to: (1) a person regardless of age who is presented, depicted or portrayed as a child as defined herein; and (2) computer-generated, digitally or manually crafted images or graphics of a person who is represented or who is made to appear to be a child as defined herein. "Child pornography" refers to any representation, whether visual, audio, or written combination thereof, by electronic, mechanical, digital, optical, magnetic or any other means, of child engaged or involved in real or simulated explicit sexual activities. "Explicit Sexual Activity" includes actual or simulated – (1) As to form:

h.

i.

j.

k.

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CRIMINAL LAW (i) sexual intercourse or lascivious act including, but not limited to, contact involving genital to genital, oral to genital, anal to genital, or oral to anal, whether between persons of the same or opposite sex; (2) bestiality; (3) masturbation; (4) sadistic or masochistic abuse; (5) lascivious exhibition of the genitals, buttocks, breasts, pubic area and/or anus; or (6) use of any object or instrument for lascivious acts "Internet address" refers to a website, bulletin board service, internet chat room or news group, or any other internet or shared network protocol address. "Internet cafe or kiosk" refers to an establishment that offers or proposes to offer services to the public for the use of its computer/s or computer system for the purpose of accessing the internet, computer games or related services. "Internet content host" refers to a person who hosts or who proposes to host internet content in the Philippines. "Internet service provider (ISP)" refers to a person or entity that supplies or proposes to supply, an internet carriage service to the public. "Grooming" refers to the act of preparing a child or someone who the offender believes to be a child for sexual activity or sexual relationship by communicating any form of child pornography. It includes online enticement or enticement through any other means. "Luring" refers to the act of communicating, by means of a computer system, with a child or someone who the offender believes to be a child for the purpose of facilitating the commission of sexual activity or production of any form of child pornography. "Pandering" refers to the act of offering, advertising, promoting, representing or distributing through any means any material or purported material that is intended to cause another to believe that the material or purported material contains any form of child pornography, regardless of the actual content of the material or purported material. "Person" refers to any natural or juridical entity.

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5. Unlawful or Prohibited Acts It shall be unlawful for any person: 1. To hire, employ, use, persuade, induce or coerce a child to perform in the creation or production of any form of child pornography; 2. To produce, direct, manufacture or create any form of child pornography; 3. To publish offer, transmit, sell, distribute, broadcast, advertise, promote, export or import any form of child pornography; 4. To possess any form of child pornography with the intent to sell, distribute, publish, or broadcast: Provided, That possession of three (3) or more articles of child pornography of the same form shall be prima facie evidence of the intent to sell, distribute, publish or broadcast; 5. To knowingly, willfully and intentionally provide a venue for the commission of prohibited acts as, but not limited to, dens, private rooms, cubicles, cinemas, houses or in establishments purporting to be a legitimate business; 6. For film distributors, theaters and telecommunication companies, by themselves or in cooperation with other entities, to distribute any form of child pornography; 7. For a parent, legal guardian or person having custody or control of a child to knowingly permit the child to engage, participate or assist in any form of child pornography; 8. To engage in the luring or grooming of a child; 9. To engage in pandering of any form of child pornography; 10. To willfully access any form of child pornography; 11. To conspire to commit any of the prohibited acts stated in this section. Conspiracy to commit any form of child pornography shall be committed when two (2) or more persons come to an agreement concerning the commission of any of the said prohibited acts and decide to commit it; and 12. To possess any form of child pornography. Syndicated Child Pornography - The crime of child pornography is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another Who May File a Complaint. 1. Offended party; 2. Parents or guardians; 3. Ascendant or collateral relative within the third degree of consanguinity; 4. Officer, social worker or representative of a licensed child-caring institution;

Officer or social worker of the Department of Social Welfare and Development (DSWD); 6. Local social welfare development officer; 7. Barangay chairman; 8. Any law enforcement officer; 9. At least three (3) concerned responsible citizens residing in the place where the violation occurred; or 10. Any person who has personal knowledge of the circumstances of the commission of any offense under this Act. RA 8049: Anti-Hazing Law, AS AMENDED BY RA 11053 Hazing; definition Hazing, refers to any act that results in physical or psychological suffering, harm, or injury inflicted on a recruit, neophyte, applicant, or member as part of an initiation rite or practice made as a prerequisite for admission or a requirement for continuing membership in a fraternity, sorority, or organization including, but not limited to paddling, whipping, beating, branding, forced calisthenics, exposure to the weather, forced consumption of any food, liquor, beverage, drug or other substance, or any other brutal treatment or forced physical activity which is likely to adversely affect the physical and psychological health of such recruit, neophyte, applicant, or member. This shall also include any activity, intentionally made or otherwise, by one person alone or acting with others, that tends to humiliate or embarrass, degrade, abuse, or endanger, by requiring a recruit, neophyte, applicant, or member to do menial, silly, or foolish tasks. [Sec. 2a RA 11053] Initiation or Initiation Rites shall refer to ceremonies, practices, rituals, or other acts, weather formal or informal, that a person must perform or take part in order to be accepted into fraternity, sorority, organization as a full-fledged member. It includes ceremonies practices , rituals, and other acts in all stages of membership in a fraternity, sorority, or organization. [Sec. 2b RA 11053] The term “organization” refers to an organized body of people which includes, but it is not limited to, any club, association, group, fraternity, and sorority. This term shall include the Armed Forces of the Philippines (AFP), the Philippine National Police (PNP), the Philippine Military Academy (PMA), the Philippine National Police Academy (PNPA), and other similar uniformed service learning institutions. [Sec. 2c RA 11053]

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Prohibition on Hazing All forms of hazing shall be prohibited in fraternities, sororities, and organizations in schools, including citizens' military training and citizens' army training. This prohibition shall likewise apply to all other fraternities, sororities, and organizations that are not school-based, such as community-based and other similar fraternities, sororities and organizations: Provided, That the physical, mental, and practices to determine and enhance the physical, mental, and psychological fitness of prospective regular members of the AFP and the PNP as approved by the Secretary of National Defense and National Police Commission, duly recommended by the Chief of Staff of the AFP and Director General of the PNP, shall not be considered as hazing purposes of this Act: Provided, further, That the exemption provided herein shall likewise apply to similar procedures and practices approved by the respective heads of other uniformed learning institutions as to their prospective members, nor shall this provision apply to any customary athletic events or other similar contests or competitions or any activity or conduct that furthers a legal and legitimate objective, subject to prior submission of a medical clearance or certificate. In no case shall hazing be made a requirement for employment in any business or corporation. [Sec. 3 RA 11053] Regulation of School-Based Initiation Rites Only initiation rites or practices that do not constitute hazing shall be allowed, wherein: 1. A written application to conduct initiation rites shall be made to the proper authorities of the school not later than seven (7) days prior to scheduled initiation date; 2. The written application shall indicate the place and date of the initiation rites and the names of the recruits, neophytes, or applicants to be initiated and the manner by which they will conduct the initiation rites; 3. Such written application shall further contain an undertaking that no harm of any kind shall be committed by anybody during the initiation rites; 4. The initiation rites shall not last more than three (3) days; 5. The application shall contain the names of the incumbent officers of the fraternity, sorority, or organization and any person or persons who will take charge in the conduct of the initiation rites; 6. The application shall be under oath with a declaration that it has been posted in the official school bulletin board, the bulletin board of the office of the fraternity, sorority, or organization,

7.

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and two (2) other conspicuous places in the school or in the premises of the organization; and The application shall be posted from the time of submission of the written notice to the school authorities or head of organization and shall only be removed from its posting three (3) days after the conduct of the initiation rites.

Sec. 4 RA 11053 The head of the school or an authorized representative must assign at least two (2) representatives of the school to be present during the initiation. It is the duty of the school representatives to see to it that no hazing is conducted during the initiation rites and to document the entire proceedings. Thereafter, said representatives who were present during the initiation shall make a report of the initiation rites to the appropriate officials of the school regarding the conduct of the said initiation: Provided, That if hazing is still committed despite their presence, no liability shall attach to them unless it is proven that they failed to perform an overt act to prevent or stop the commission thereof. [Sec. 5 RA 11053] Who Are Liable / Punishable Acts The penalty of reclusion perpetua and a fine of Three million pesos (P3,000,000.00) shall be imposed upon those who actually planned or participated in the hazing if, as a consequence of the hazing, death, rape, sodomy, or mutilation results therefrom; The penalty of reclusion perpetua and a fine of Two million pesos (P2,000,000.00) shall be imposed upon: 1. All persons who actually planned or participated in the conduct of the hazing; 2. All officers of the fraternity, sorority, or organization who are actually present during the hazing; 3. The adviser of a fraternity, sorority, or organization who is present when the acts constituting the hazing were committed and failed to take action to prevent the same from occurring or failed to promptly report the same to the law enforcement authorities if such adviser or adviser or advisers can do so without peril to their person or their family; 4. All former officers, nonresident members, or alumni of the fraternity, sorority, or organization who are also present during the hazing: Provided, That should the former officer, nonresident member, or alumnus be a member of the Philippine Bar, such member shall immediately be subjected to disciplinary proceedings by the Supreme Court pursuant to its power to discipline members of the Philippine

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Bar: Provided, further, That should the former officer, nonresident member, or alumnus belong to any other profession subject to regulation by the Professional Regulation Commission (PRC), such professional shall immediately be subjected to disciplinary proceedings by the concerned Professional Regulatory Board, the imposable penalty for which shall include, but is not limited to, suspension for a period of not less than three (3) or revocation of the professional license. A suspended or revoked professional license pursuant to this section may be reinstated upon submission of affidavits from at least three (3) disinterested persons, good moral certifications from different unaffiliated and credible government, religious, and socio-civic organizations and such other relevant evidence to show that the concerned professional has become morally fit for readmission into the profession: Provided, That said readmission into the profession shall be subject to the approval of the respective Professional Regulatory Board; Officers or members of a fraternity, sorority, or organization who knowingly cooperated in carrying out the hazing by inducing the victim to be present thereat; and Members of the fraternity, sorority, or organization who are present during the hazing when they are intoxicated or under the influence of alcohol or illegal drugs;

The penalty of reclusion temporal in its maximum period and a fine of One million pesos (P1,000,000.00) shall be imposed upon all persons who are present in the conduct of the hazing. The penalty of reclusion temporal and fine of One million pesos (P1,000,000.00) shall be imposed upon former officers, nonresident member, alumni of the fraternity, sorority, or organization who, after the commission of any of the prohibited acts proscribed herein, will perform any act to hide, conceal, or otherwise hamper or obstruct any investigation that will be conducted thereafter: Provided, That should the former officer, nonresident member, or alumnus be a member of the Philippine Bar, such member shall immediately be subjected to disciplinary proceedings by the Supreme Court pursuant to its power to discipline members of the Philippine Bar: Provided, further, That should the former officer, nonresident members, or alumnus belong to any other profession subject to regulation by the PRC, such professional shall immediately be subjected to disciplinary proceedings by the concerned Professional Regulatory Board, the imposable penalty for which shall include, but is not limited to, suspension for a period of not less than three (3) years or revocation

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of the professional license pursuant to this section may be reinstated upon submission of affidavits from at least three (3) disinterested persons, good moral certifications from different unaffiliated and credible government, religious, and socio-civic organizations, and such other relevant evidence to show that the concerned professional has become morally fit for readmission into the profession: Provided, That said readmission into the profession shall be subject to the approval of the respective Professional Regulatory Board. The penalty of prision correcional in its minimum period shall be imposed upon any person who shall intimidate, threaten, force, or employ, or administer any form of vexation against another person for the purpose of recruitment in joining or promoting a particular fraternity, sorority, or organization. The persistent and repeated proposal or invitation made to a person who had twice refused to participate or join the proposed fraternity, sorority, or organization, shall be prima facie evidence of vexation for purposes of this section. A fine of One million pesos (P1,000,000.00) shall be imposed on the school if the fraternity, sorority, or organization filed a written application to conduct an initiation which was subsequently approved by the school and hazing occurred during the initiation rites or when no representatives from the school were present during the initiation as provided under Section 5 of this Act: Provided, That if hazing has been committed in circumvention of the provisions of this Act, it is incumbent upon school officials to investigate motu propio and take an active role to ascertain factual events and identity witnesses in order to determine the disciplinary sanctions it may impose, as well as provide assistance to police authorities. The owner or lessee of the place where hazing is conducted shall be liable as principal and penalized under paragraphs (a) or (b) of this section, when such owner or lessee has actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring or failed to promptly report the same to the law enforcement authorities if they can do so without peril to their person or their family. If the hazing is held in the home of one of the officers or members of the fraternity, sorority, or organization, the parents shall be held liable as principals and penalized under paragraphs (a) or (b) hereof when they have actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring or failed to promptly report the same to the law enforcement authorities if such parents can do so without peril to their person or their family.

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Child Prostitution/Punishable Acts The school authorities including faculty members as well as barangay, municipal, or city officials shall be liable as an accomplice and likewise be held administratively accountable for hazing conducted by the fraternities, sororities, other organizations, if it can be shown that the school or barangay, municipal, or city officials allowed or consented to the conduct of hazing, but such officials failed to take any action to prevent the same from occurring or failed to promptly report to the law enforcement authorities if the same can be done without peril to their person or their family. The presence of any person, even if such person is not a member of the fraternity, sorority, or organization, during the hazing is prima facie evidence of participation therein as a principal unless such person or persons prevented the commission of the acts punishable herein or promptly reported the same to the law enforcement authorities if they can do so without peril, to their person or their family. The incumbent officers of the fraternity, sorority, or organization concerned shall be jointly liable with those members who actually participated in the hazing. Any person charged under the Act shall not be entitled to the mitigating circumstances that there was no intention to commit so grave a wrong. This section shall apply to the president, manager, director, or other responsible officer of businesses or corporations engaged hazing as a requirement for employment in the manner provided herein. Any conviction by final judgement shall be reflected on the scholastic record, personal, or employment record of the person convicted, regardless of when the judgment conviction has become final. [Sec. 14 RA 11053]

RA 7610: Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act Coverage "Children" - person below 18 years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition.

Section 5. Child Prostitution and Other Sexual Abuse. – Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: (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 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. The elements of sexual abuse under Section 5, Article III of R.A. No. 7610 are: 1. The accused commits the act of sexual intercourse or lascivious conduct;

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The said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and The child, whether male or female, is below 18 years of age.[Imbo v. People, G.R. No. 197712 (2015)]

If the victim of sexual intercourse is below 12 years of age, the offender should not be prosecuted for sexual abuse but for statutory rape under Article 266-A(1)(d) of the RPC. On the other hand, if the victim is 12 years or older, the offender should be charged with either sexual abuse under Section 5(b) of RA 7610 or rape under Article 266-A (except paragraph 1[d]) of the RPC. However, the offender cannot be accused of both crimes for the same act because his right against double jeopardy will be prejudiced. [People v. Matias, G.R. No. 186469 (2012)]

Section 6. Attempt To Commit Child Prostitution. – There is an attempt to commit

child prostitution under Section 5, paragraph (a) hereof when any person who, not being a relative of a child, is found alone with the said child inside the room or cubicle of a house, an 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. There is also an attempt to commit child prostitution, under paragraph (b) of Section 5 hereof when any person is receiving services from a child in a sauna parlor or bath, massage clinic, health club and other similar establishments. A penalty lower by two (2) degrees than that prescribed for the consummated felony under Section 5 hereof shall be imposed upon the principals of the attempt to commit the crime of child prostitution under this Act, or, in the proper case, under the Revised Penal Code. Other Acts Of Neglect, Abuse, Cruelty Or Exploitation And Other Conditions Prejudicial To The Child’s Development/Punishable Acts

Sec. 10. Other Acts Of Neglect, Abuse, Cruelty Or Exploitation And Other Conditions Prejudicial To The Child's Development. – (a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or to be responsible for other conditions prejudicial to the child's development including those covered by

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Article 59 of Presidential Decree No. 603, as amended, but not covered by the RPC, as amended, shall suffer the penalty of prision mayor in its minimum period. (b) Any person who shall keep or have in his company a minor, twelve (12) years or under or who in ten (10) years or more his junior in any public or private place, hotel, motel, beer joint, discotheque, cabaret, pension house, sauna or massage parlor, beach and/or other tourist resort or similar places shall suffer the penalty of prision mayor in its maximum period and a fine of not less than fifty thousand pesos (P50,000.00): Provided, that this provision shall not apply to any person who is related within the fourth degree of consanguinity or affinity or any bond recognized by law, local custom and tradition or acts in the performance of a social, moral or legal duty. (c) Any person who shall induce, deliver or offer a minor to any one prohibited by this act to keep or have in his company a minor as provided in the preceding paragraph shall suffer the penalty of prision mayor in its medium period and a fine of not less than forty thousand pesos (P40,000.00); Provided, however, that should the perpetrator be an ascendant, stepparent or guardian of the minor, the penalty to be imposed shall be prision mayor in its maximum period, a fine of not less than fifty thousand pesos (P50,000.00), and the loss of parental authority over the minor. (d) Any person, owner, manager or one entrusted with the operation of any public or private place of accommodation, whether for occupancy, food, drink or otherwise, including residential places, who allows any person to take along with him to such place or places any minor herein described shall be imposed a penalty of prision mayor in its medium period and a fine of not less than fifty thousand pesos (P50,000.00), and the loss of the license to operate such a place or establishment. (e) Any person who shall use, coerce, force or intimidate a street child or any other child to: (1) Beg or use begging as a means of living; (2) Act as conduit or middlemen in drug trafficking or pushing; or (3) Conduct any illegal activities, shall suffer the penalty of prision correccional in its medium period to reclusion perpetua. For purposes of this Act, the penalty for the commission of acts punishable under articles 248,

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249, 262, paragraph 2, and 263, paragraph 1 of act no. 3815, as amended, the RPC, for the crimes of murder, homicide, other intentional mutilation, and serious physical injuries, respectively, shall be reclusion perpetua when the victim is under twelve (12) years of age. The penalty for the commission of acts punishable under articles 337, 339, 340 and 341 of act no. 3815, as amended, the RPC, for the crimes of qualified seduction, acts of lasciviousness with the consent of the offended party, corruption of minors, and white slave trade, respectively, shall be one (1) degree higher than that imposed by law when the victim is under twelve (12) years age. The victim of the acts committed under this section shall be entrusted to the care of the department of social welfare and development. RA 9372: Human Security Act of 2007 Punishable Acts of Terrorism/Who are Liable Sec. 3 Terrorism – Any person who commits an act punishable under any of the following provisions of the RPC: (1) Art. 122 (Piracy in General and Mutiny in the High Seas or in Philippine Waters); (2) Art. 134 (Rebellion or Insurrection); (3) Art. 143-A (Coup d’ Etat), including acts committed by private persons; (4) Art. 248 (Murder); (5) Art. 267 (Kidnapping and Serious Illegal Detention); (6) Art. 324 (Crimes Involving Destruction);

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shall be guilty of the crime of terrorism and shall suffer the penalty of forty (40) years of imprisonment, without the benefit of parole as provided for under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended. Sec. 6 Accessory – Any person who, having knowledge of the commission of the crime of terrorism or conspiracy to commit terrorism, and without having participated therein, either as principal or accomplice under Articles 17 and 18 of the RPC, takes part subsequent to its commission in any of the following manner: (a) by profiting himself or assisting the offender to profit by the effects of the crime; (b) by concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent discovery; (c) by harboring, concealing, or assisting in the escape of the principal or conspirator of the crime, shall suffer the penalty of ten (10) years and one day to twelve years of imprisonment. Notwithstanding the above paragraph, the penalties prescribed for accessories shall not be imposed upon those who are such with respect to their spouses, ascendants, descendants, legitimate, natural and adopted brothers and sisters, or relatives by affinity within the same degree, with the single exception of accessories falling within the provisions of subparagraph (a).

or under these special laws: (1) PD 1613 (The Law on Arson); (2) RA 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990); (3) RA 5207 (Atomic Energy Regulatory and Liability Act of 1968); (4) RA 6235 (Anti-Hijacking Law); (5) PD 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974) and, (6) PD 1866, as amended (Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives) thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand, Page 239 of 309

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I. Title IX. Crimes against Personal Liberty and Security 1.

2.

3.

Chapter I: Crimes against Liberty a. Article 267 - Kidnapping and Serious Illegal Detention b. Article 268 - Slight Illegal Detention c. Article 269 - Unlawful Arrest d. Article 270 - Kidnapping and Failure to Return a Minor e. Article 271 - Inducing a Minor to Abandon His Home f. Article 272 – Slavery g. Article 273 - Exploitation of Child Labor h. Article 274 - Services Rendered Under Compulsion in Payment of Debt Chapter II: Crimes against Security a. Article 275 - Abandonment of Persons in Danger and Abandonment of Own Victim b. Article 276 - Abandoning a Minor c. Article 277 - Abandonment of Minor by Person Entrusted With Custody; Indifference of Parents d. Article 278 - Exploitation of Minors e. Article 280 - Qualified Trespass to Dwelling f. Article 281 - Other Forms of Trespass g. Article 282 - Grave Threats h. Article 283 - Light Threats i. Article 284 - Bond for Good Behavior j. Article 285 - Other Light Threats k. Article 286 - Grave Coercions l. Article 287 - Light Coercions m. Article 288 - Other Similar Coercions n. Article 289 - Formation, Maintenance, and Prohibition of Combination of Capital or Labor through Violence or Threats Chapter III: Discovery and Revelation of Secrets a. Article 290 - Discovering Secrets through Seizure of Correspondence b. Article 291 - Revealing Secrets with Abuse of Office c. Article 292 - Revelation of Industrial Secrets

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1. Chapter I: Crimes against

Liberty

a. Article 267 - Kidnapping and Serious Illegal Detention Elements: 1. Offender is a private individual; 2. He kidnaps or detains another, or in any other manner deprives the latter of his liberty; 3. The act of detention or kidnapping must be illegal; 4. In the commission of the offense, any of the following circumstances is present: a. The kidnapping lasts for more than 3 days; b. It is committed simulating public authority; c. Any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or d. The person kidnapped or detained is a minor, female, or a public officer. The essential element of kidnapping is the deprivation of the offended party’s liberty under any of the four instances enumerated. But when the kidnapping was committed for the purpose of extorting ransom, it is not necessary that one or any of circumstances enumerated be present. If kidnapping be committed under element 4 (b), (c), or (d), it is not necessary that the kidnapping last for more than 3 days. QUALIFYING CIRCUMSTANCES 1. Purpose is to extort ransom. 2. When the victim is killed or dies as a consequence of the detention. 3. When the victim is raped. 4. When victim is subjected to torture or dehumanizing acts. PENALTY: Death The offenders here are private individuals or public officers acting in their private capacity. If they are public officers, they are covered by the crimes under Title 2. When a public officer conspires with a private person in the commission of any of the crimes under Title IX, the crime is also one committed under this title and not under Title II.

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The purpose is immaterial when any of the circumstances in the first paragraph of Art. 267 is present. Ransom Means money, price or consideration paid or demanded for the redemption of a captured person that would release him from captivity. No specific form of ransom is required to consummate the felony as long as the ransom was intended as a bargaining chip in exchange for the victim’s freedom. Whether or not ransom is actually paid to or received by the perpetrator is of no moment. [People v. Jatulan, G.R. No. 171563 (2007)] Actual demand for ransom is not necessary, as long as it can be proven that the kidnapping was done for the purpose of extorting money. It is essential that there be actual confinement or restriction of the person of the offended party. It is not necessary that the victim be placed in an enclosure, as long as he is deprived, in any manner, of his liberty. It suffices that there be actual or manifest restraint on the person or liberty of the victim. Accused were guilty of kidnapping although the victim was found, at the time of her rescue, outside of the house where she was brought, talking to the house owner who was the uncle of the accused. Her failure to attempt to escape was explained by her to be due to her fear and threats of the accused to kill her should she do so. In kidnapping, it is not necessary that the offended party be kept within an enclosure to restrict her freedom of locomotion. [People v. Cortez, et al., G.R. Nos. 13161920 (2000)] The victim’s lack of consent is also a fundamental element of kidnapping and serious illegal detention. The involuntariness of the seizure and detention is the very essence of the crime. Although the victim may have initially consented to go with the offender to a place, but the victim is thereafter prevented, with the use of force, from leaving the place where he was brought to with his consent and is detained against his will, the offender is still guilty of kidnapping and serious illegal detention. [People v. Pickrell, G.R. No. 120409 (2003)] When detention is illegal It is not ordered by competent authority nor permitted by law.

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Special complex crime of Kidnapping with Murder When the victim dies or is killed as a consequence of the detention, which is covered by the last paragraph of Art. 267 as amended. Forcible abduction If a woman is transported from one place to another by virtue of restraining her of her liberty, and that act is coupled with lewd designs. Serious illegal detention If a woman is transported just to restrain her of her liberty. There is no lewd design or lewd intent. Grave coercion If a woman is carried away just to break her will, to compel her to agree to the demand or request by the offender. Illegal Detention Committed by a private individual who unlawfully deprives a person of his liberty Crime against personal liberty

Arbitrary Detention Committed by public officer or employee who detains a person without legal ground Crime against the fundamental laws of the State

Where the evident purpose of taking the victim was to kill him, and from the acts of the accused it cannot be inferred that the latter’s purpose was to actually detain or deprive the victim of his liberty, the subsequent killing of the victim did not constitute the crime of kidnapping. The demand for ransom did not convert the crime into kidnapping, since no deprivation of liberty was involved. [People v Padica, G.R. No. 102645 (1993)] The essence of kidnapping is the actual deprivation of the victim’s liberty coupled with the intent of the accused to effect it. [People v Luartes, G.R. No. 127452 (1999)] Physical detention is not necessary. It is enough that the victim is under the complete control of the perpetrators as in this case when the Japanese victim had to rely on his abductors for survival after he was tricked into believing that the police was after him. It was also held in this case that keeping a person as collateral for payment of an obligation is kidnapping. [People v. Tomio, G.R. No. 74630 (1990)] Leaving a child in a place from which he did not know the way home, even if he had the freedom to roam

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around the place of detention, would still amount to deprivation of liberty, for under such a situation, the child’s freedom remains at the mercy and control of the abductor. [People v Baluya,G.R. No. 181822 (2011)] The elements of kidnapping for ransom under Article 267 of the RPC as amended by RA 7659 warranting the imposition of the death penalty are as follows: 1. intent on the part of the accused to deprive the victim of his liberty; 2. actual deprivation of the victim of his liberty; and 3. motive of the accused, which is extorting ransom for the release of the victim. Neither actual demand for nor payment of ransom is necessary for the consummation of the felony. It is sufficient that the deprivation of liberty was for extorting ransom even if none of the four circumstances mentioned in Article 267 were present in its perpetration. [People v. Cenahonon, G.R. 169962 (2007)] Article 267 has been modified by RA 7659 (an act to impose the death penalty on certain heinous crimes, amending for that purpose the revised penal laws, as amended, other special penal laws, and for other purposes) in the following respects: 1. Illegal detention becomes serious when it shall have lasted for more than three days, instead of five days as originally provided; 2. In paragraph 4, if the person kidnapped or detained was a minor and the offender was anyone of the parents, the latter has been expressly excluded from the provision. The liability of the parent is provided for in the last paragraph of Article 271; 3. A paragraph was added to Article 267, which states: When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture, or dehumanizing acts, the maximum penalty shall be imposed. 4. The amendment introduced in our criminal statutes the concept of "special complex crime" of kidnapping with murder or homicide. 5. It eliminated the distinction drawn by the courts between those cases where the killing of the kidnapped victim was purposely sought by the accused, and those where the killing of the victim was not deliberately resorted to but was merely an afterthought. 6. Although the victim was raped 27 times, there is only one crime of kidnapping with rape, not kidnapping with rape and 26 separate counts of rape. In a way, R.A. 7659 depreciated the seriousness of rape because no matter how many times the victim was raped, like in the present

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case, there is only one crime committed – the special complex crime of kidnapping with rape. [People v. Mirandilla, G.R. No. 186217 (2011)] Kidnapping with Rape Lewd design came after the intent to kidnap the victim It is a special complex crime.

It there is an attempted rape, it shall be considered as a separate crime.

If there are multiple rapes, there is only one special complex crime of Kidnapping with Rape.

Forcible Abduction with Rape At the outset, there is already lewd design It is a complex crime under RPC 48 since forcible abduction is a necessary means of committing the crime of rape. If there is an attempted rape, the crime committed is only forcible abduction, the former being an expression of a lewd design. If there are multiple rapes, only one is complexed with forcible abduction and the rest shall be considered as separate crimes.

b. Article 268 - Slight Illegal Detention Elements: 1. Offender is a private individual; 2. He kidnaps or detains another, or in any other manner deprives him of his liberty. 3. The act of kidnapping or detention is illegal; 4. The crime is committed without the attendance of any of the circumstances enumerated in Article 267. This felony is committed if any of the five circumstances in the commission of kidnapping or detention enumerated in Article 267 is not present. Privileged mitigating circumstances The penalty is lowered if: 1. The offended party is voluntarily released within three days from the start of illegal detention; 2. Without attaining the intended purpose; AND 3. Before the institution of the criminal action. The prevailing rule now is Asistio v. Hon. San Diego [G.R. No. L-21991 (1964)], which provides that voluntary release will only mitigate criminal liability if

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crime was slight illegal detention. If serious, it has no effect. The liability of one who furnishes the place where the offended party is being held captive is that of a principal and not of an accomplice.

Crime is committed by failing to deliver such person to the proper judicial authority within a certain period.

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Committed by making an arrest not authorized by law

d. Article 270 - Kidnapping and Failure to Return a Minor

c. Article 269 - Unlawful Arrest Elements

Offender arrests or detains another person; The purpose of the offender is to deliver him to the proper authorities; The arrest or detention is not authorized by law or there is no reasonable ground therefor.

Elements: 1. Offender is entrusted with the custody of a minor person (whether over or under seven years but less than 18 years of age) 2. He deliberately fails to restore the said minor to his parents or guardians

This felony consists in making an arrest or detention without legal or reasonable ground for the purpose of delivering the offended party to the proper authorities.

If any of the foregoing elements is absent, the kidnapping of the minor will then fall under Article 267.

1. 2. 3.

Generally, this crime is committed by incriminating innocent persons by the offender’s planting evidence to justify the arrest – a complex crime results, that is, unlawful arrest through incriminatory machinations under Article 363. If the arrest is made without a warrant and under circumstances not allowing a warrantless arrest, the crime would be unlawful arrest. If the person arrested is not delivered to the authorities, the private individual making the arrest incurs criminal liability for illegal detention under Article 267 or 268. If the offender is a public officer, the crime is arbitrary detention under Article 124. If the detention or arrest is for a legal ground, but the public officer delays delivery of the person arrested to the proper judicial authorities, then Article 125 will apply. Note: This felony may also be committed by public officers. Unlawful Arrest v. Delay in the Delivery of Detained Persons Delay in the delivery Unlawful Arrest of detained persons (Art. 269) (Art. 125) Detention is for some Detention is not legal ground. authorized by law.

The essential element which qualifies the crime of kidnapping a minor under Art. 270 is that the offender is entrusted with the custody of the minor. If the accused is any of the parents, Article 267 does not apply; Articles 270 and 271 will then apply. If the taking is with the consent of the parents, the crime in Article 270 is committed. What is punished is the deliberate failure of the custodian of the minor to restore the latter to his parents or guardians. The deliberate failure to return a minor under one’s custody constitutes deprivation of liberty. Kidnapping and failure to return a minor is necessarily included in kidnapping and serious illegal detention of a minor under Article 267(4). [People v. Generosa, G.R. No. L-69236 (1986)] Where a minor child was taken by the accused without the knowledge and consent of his parents, the crime is kidnapping and serious illegal detention under Article 267, not kidnapping and failure to return a minor under Article 270. [People v. Mendoza, G.R. No. 180501 (2008)] Art. 270 distinguished from Art. 267 Art. 270 Art. 267 Offender is entrusted The offender is not with the custody of the entrusted with the minor custody of the minor.

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What is punished is the deliberate failure of the offender having custody of the minor to restore him to his parents or guardians

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What is punished is the illegal detaining or kidnapping of the minor

e. Article 271 - Inducing a Minor to Abandon His Home Elements: 1. A minor (whether over or under seven years of age) is living in the home of his parents or guardians or the person entrusted with his custody; 2. Offender induces said minor to abandon such home. Inducement must be (a) actual, and (b) committed with criminal intent.

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The crime is slavery if the offender is not engaged in the business of prostitution. If he is, the crime is white slave trade under Article 341. The employment or custody of a minor with the consent of the parent or guardian, although against the child’s own will, cannot be considered involuntary servitude. But where it is proven that the defendant was obliged to render service in plaintiff’s house as a servant without remuneration whatever and to remain there so long as she has not paid her debt, there is slavery. See Special Law: RA 9208 (Anti-Trafficking of Person Act of 2003)

g. Article 273 - Exploitation of Child Labor

The minor should not leave his home of his own free will. What constitutes the crime is the act of inducing a minor to abandon the home of his guardian, and it is not necessary that the minor actually abandons the home.

Elements: 1. Offender retains a minor in his services; 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.

Father or mother may commit the crimes in Art. 170 and 171 where they are living separately and the custody of the minor children is given to one of them.

The existence of indebtedness constitutes no legal justification for holding a person and depriving him of his freedom to live where he wills.

The law is intended to discourage and prevent disruption of filial relationships and undue interference with the parents’ right and duty to the custody of their minor children and to rear them.

h. Article 274 - Services Rendered Under Compulsion in Payment of Debt

f. Article 272 – Slavery

Elements: 1. Offender compels a debtor to work for him, either as a 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.

Elements: 1. Offender purchases, sells, kidnaps or detains a human being; 2. The purpose of the offender is to enslave such human being. This is committed if anyone shall purchase, kidnap, or detain a human being for the purpose of enslaving him. The penalty is increased if the purpose of the offender is to assign the offended party to some immoral traffic. If the purpose of the kidnapping or detention is to enslave the offended party, slavery is committed.

Service under Compulsion distinguished from Exploitation of Child Labor Service under Exploitation of Child Compulsion Labor Does not distinguish whether or not the Victim must be a minor victim is a minor The minor is compelled The debtor himself is to render services for the one compelled to the supposed debt of work for the offender his parents or guardian Limited to household Service is not limited work or farm labor

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2. Chapter II: Crimes against

Security

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If the life of the minor was in danger because of the abandonment.

The purpose in abandoning the minor under his custody is to avoid the obligation of taking care of said minor.

a. Article 275 - Abandonment of Persons in Danger and Abandonment of Own Victim MODE 1: W/O detriment to self Failing to render assistance to any person whom the offender finds in an uninhabited place, wounded or in danger of dying when he can render such assistance without detriment to himself, unless such omission shall constitute a more serious offense. Elements: 1. The place is not inhabited; 2. Accused found there a person wounded or in danger of dying; 3. Accused can render assistance without detriment to himself; 4. Accused fails to render assistance. MODE 2: accidentally wound another Failing to help or render assistance to another whom the offender has accidentally wounded or injured; MODE 3: abandoning a child < 7 By failing to deliver a child, under seven years of age, whom the offender has found abandoned, to the authorities or to his family, or by failing to deliver him to a safe place. Does not apply: When a person intentionally wounds another and leaves him in an uninhabited place. Immaterial: That the offender did not know that the child is under seven years. The child under seven years of age must be found by the accused in an unsafe place.

b. Article 276 - Abandoning a Minor Elements: 1. Offender has the custody of a child; 2. The child is under seven years of age; 3. He abandons such child; 4. He has no intent to kill the child when the latter is abandoned. Circumstances qualifying the offense: 1. When the death of the minor resulted from such abandonment; or

A permanent, conscious and deliberate abandonment is required in this article. There must be an interruption of the care and protection the minor needs by reason of his age. Intent to kill cannot be presumed from the death of the child. When there is intent to kill, this article does not apply. The ruling that the intent to kill is presumed from the death of the victim of the crime is applicable only to crimes against persons, and not to crimes against security, particularly the crime of abandoning a minor under Art. 276. If the offender is the parent of the minor who is abandoned, he shall be deprived of parental authority. (Art. 332, Civil Code)

c. Article 277 - Abandonment of Minor by Person Entrusted With Custody; Indifference of Parents MODE 1: WITHOUT consent of guardian Delivering a minor to a public institution or other persons without the consent of the one who entrusted such minor to the care of the offender or, in the absence of that one, without the consent of the proper authorities; Elements: 1. Offender has charge of the rearing or education of a minor; 2. He delivers said minor to a public institution or other persons; 3. The one who entrusted such child to the offender has not consented to such act; or if the one who entrusted such child to the offender is absent, the proper authorities have not consented to it. MODE 2: neglecting education Neglecting his (offender’s) children by not giving them the education which their station in life requires and financial condition permits. Elements: 1. Offender is a parent; 2. He neglects his children by not giving them education;

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3.

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His station in life requires such education and his financial condition permits it.

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Obligation to educate children terminates if the mother and children refuse without good reason to live with the accused.

made in consideration of any price, compensation or promise. The offender is engaged in a kind of business that would place the life or limb of the minor in danger, even though working for him is not against the will of the minor.

Failure to give education must be due to deliberate desire to evade such obligation. If the parents cannot give education because they had no means to do so, then they will not be liable under this article.

Nature of the Business: this involves circuses which generally attract children so they themselves may enjoy working there unaware of the danger to their own lives and limbs.

d. Article 278 - Exploitation of Minors

Age: Must be below 16 years. Article 278 has no application if minor is 16 years old and above

2.

Mode 1: Physical strength/contortion Causing any boy or girl under 16 years of age to perform any dangerous feat of balancing, physical strength or contortion, the offender being any person; Mode 2: Exhibition/acrobat/circus Employing children under 16 years of age who are not the children or descendants of the offender in exhibitions of acrobat, gymnast, rope-walker, diver, or wild-animal tamer, the offender being an acrobat, etc., or circus manager or engaged in a similar calling; Mode 3: Descendant employed like mode 2 Employing any descendant under 12 years of age in dangerous exhibitions enumerated in the next preceding paragraph, the offender being engaged in any of the said callings; Mode 4: Delivering child under 16 to be employed like mode 2 Delivering a child under 16 years of age gratuitously to any person following any of the callings enumerated in mode 2, or to any habitual vagrant or beggar, the offender being an ascendant, guardian, teacher or person entrusted in any capacity with the care of such child; Mode 5: Inducing child under 16 to abandon home to be employed like mode 2 Inducing any child under 16 years of age to abandon the home of its ascendants, guardians, curators or teachers to follow any person engaged in any of the callings mentioned in paragraph 2 or to accompany any habitual vagrant or beggar, the offender being any person. Circumstances qualifying the offense: 1. If the delivery of the child to any person following any of the calling of acrobat, gymnast, rope-walker, diver, wild-animal tamer or circus manager or to any habitual vagrant or beggar is

Note: if minor is 16 years old and above the exploitation will be dealt with by RA 7610. If the employer is an ascendant, the crime is not committed, unless the minor is less than 12 years old. If the minor so employed would suffer some injuries as a result of a violation of Article 278, Article 279 provides that there would be additional criminal liability for the resulting felony. Exploitation of Minors (Art. 278, par. 5) Purpose of inducing the minor to abandon his home is to follow any person engaged in any of the callings mentioned Victim is under 16 years of age

Inducing a Minor to Abandon His Home (Art. 271)

No such purpose

Victim is a minor (below 18 years of age)

e. Article 280 - Qualified Trespass to Dwelling Elements 1. Offender is a private person; 2. He enters the dwelling of another; 3. Such entrance is against the latter’s will. Qualifying circumstance: The offense is committed by means of violence or intimidation. DWELLING – This is the place that a person inhabits. It includes the dependencies which have interior communication with the house. It is not necessary that it be the permanent dwelling of the person; hence, a person’s room in a hotel may

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be considered a dwelling. It also includes a room where one resides as a boarder. 3.

If the purpose in entering the dwelling is not shown, trespass is committed. If the purpose is shown, it may be absorbed in the crime as in robbery with force upon things, the trespass yielding to the more serious crime. If the purpose is not shown and while inside the dwelling he was found by the occupants, one whom he subsequently injured if there was a struggle, the crime committed will be trespass to dwelling and frustrated homicide or physical injuries, or if there was no injury, unjust vexation. If the entry is made by a way not intended for entry, it is presumed to be against the will of the occupant (example, entry through a window). It is not necessary that there be a breaking. “Against the will” – This means that the entrance is, either expressly or impliedly, prohibited or the prohibition is presumed. It is a well-settled rule that whoever enters the dwelling of another at late hour of the night after the inmates have retired and closed their doors does so against their will. Prohibition is presumed. [US v Mesina, G.R. No. 6717 (1911); US v Panes, G.R. 7987 (1913)] Prohibition must be in existence prior to or at the time of entrance, but prohibition is not necessary when violence or intimidation is employed by the offender (qualified trespass). Fraudulent entrance may constitute trespass. The prohibition to enter may be made at any time and not necessarily at the time of the entrance. To prove that an entry is against the will of the occupant, it is not necessary that the entry should be preceded by an express prohibition, provided that the opposition of the occupant is clearly established by the circumstances under which the entry is made, such as the existence of enmity or strained relations between the accused and the occupant. If the offender is public officer, the crime is violation of domicile. Examples of trespass by means of violence: 1. Pushing the door violently and maltreating the occupants after entering. 2. Cutting of a ribbon or string with which the door latch of a closed room was fastened. The cutting

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of the fastenings of the door was an act of violence. Wounding by means of a bolo, the owner of the house immediately after entrance

Examples of trespass by means of intimidation: 1. Firing a revolver in the air by persons attempting to force their way into a house. 2. The flourishing of a bolo against inmates of the house upon gaining an entrance In the prosecution for trespass, the material fact or circumstance to be considered is the occurrence of the trespass. The gravamen of the crime is violation of possession or the fact of having caused injury to the right of the possession. [Marzalado v. People, G.R. No. 152997 (2004)] If a person was killed after trespass by the offender, the following crimes are committed: 1. If there was no intent to kill when he entered – separate crimes of homicide or murder qualified by trespass to dwelling 2. If there was intent to kill when he entered – the crime of homicide/murder with dwelling as an aggravating circumstance Trespass may be committed by the owner of a dwelling (i.e. lessor enters the house leased to another against the latter’s will). Cases to which the provision of this article is NOT applicable: 1. If the entrance to another’s dwelling is made for the purpose of preventing some serious harm to himself, the occupants of the dwelling, or a third person. 2. If the purpose is to render some service to humanity or justice. 3. If the place where entrance is made is a café, tavern, inn, and other public house, while the same are open. Note: A person who believes that a crime has been committed against him has every right to go after the culprit and arrest him without any warrant even if in the process he enters the house of another against the latter’s will. [Sec. 6, Rule 113, Rules of Court]

f. Article 281 - Other Forms of Trespass Elements: 1. Offender enters the closed premises or the fenced estate of another;

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2. 3. 4.

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The entrance is made while either of them is uninhabited; The prohibition to enter is manifest; The trespasser has not secured the permission of the owner or the caretaker thereof.

Premises – signifies distinct and definite locality. It may mean a room, shop, building or definite area, but in either case, locality is fixed. Qualified Trespass v. Other Forms of Trespass Qualified Trespass to Other Forms of Dwelling (Art. 280) Trespass (Art. 281) Offender is a private The offender is any person person Offender enters closed Offender enters a premises or fenced dwelling estate Place entered is Place entered is inhabited uninhabited It is the entering the Act constituting the closed premises or the crime is entering the fenced estate without dwelling against the will securing the permission of the owner of the owner or caretaker thereof Prohibition to enter is Prohibition to enter express or implied must be manifest

g. Article 282 - Grave Threats Mode 1: Threatening, even not unlawful Threatening another with the infliction upon his person, honor or property or that of this family of any wrong amounting to a crime and demanding money or imposing any other condition, even though not unlawful, and the offender attained his purpose; Elements: 1. Offender threatens another person with the infliction upon the latter’s person, honor or property, or upon that of the latter’s family, of any wrong. 2. Such wrong amounts to a crime. 3. There is a demand for money or that any other condition is imposed, even though not unlawful. 4. Offender attains his purpose. Mode 2: Threat w/o attaining purpose Making such threat without the offender attaining his purpose; Mode 3: Threat of crime Threatening another with the infliction upon his person, honor or property or that of his family of any

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wrong amounting to a crime, the threat not being subject to a condition. Elements: 1. Offender threatens another person with the infliction upon the latter’s person, honor or property, or upon that of the latter’s family, of any wrong. 2. Such wrong amounts to a crime. 3. Threat is not subject to a condition. Qualifying Circumstance: If threat was made 1. in writing OR 2. through a middleman. It is essential that there be intimidation. As the crime consists in threatening another with some future harm, it is not necessary that the offended party was present at the time the threats were made. It is sufficient that the threats came to the knowledge of the offended party. When consummated: As soon as the threats came to the knowledge of the offended party. Threats made in connection with the commission of other crimes are absorbed by the latter. The offender in grave threats does not demand the delivery on the spot of the money or other personal property demanded by him. When threats are made and money is taken on the spot, the crime may be robbery with intimidation. The penalties for the first two types of grave threats depend upon the penalties for the crimes threatened to be committed. One degree lower if the purpose is attained, and two degrees lower if the purpose is not attained. If the threat is not subject to a condition, the penalty is fixed at arresto mayor and a fine not exceeding 500 pesos. In the first two types, if the threat is made in writing or through a middleman, the penalty is to be imposed in its maximum period. The third type of grave threats must be serious and deliberate; the offender must persist in the idea involved in his threats. The threat should not be made in the heat of anger, because such is punished under Article 285. If the condition is not proved, it is grave threats of the third type.

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h. Article 283 - Light Threats Elements: 1. Offender makes a threat to commit a wrong; 2. The wrong does not constitute a crime; 3. There is a demand for money or that other condition is imposed, even though not unlawful; 4. Offender has attained his purpose or, that he has not attained his purpose. The harm threatened must not be in the nature of crime and there is a demand for money or any other condition is imposed, even though lawful. Blackmailing may be punished under this article. Grave Threats Act threatened amount to a crime

Light Threats Act threatened do not amount to a crime

i. Article 284 - Bond for Good Behavior

Mode 2: Oral threat of crime, in anger Orally threatening another, in the heat of anger, with some harm constituting a crime, without persisting in the idea involved in his threat; Mode 3: Oral threat = not felony Orally threatening to do another any harm not constituting a felony. Under the first type, the subsequent acts of the offender must show that he did not persist in the idea involved in the threat. Threats which are ordinarily grave threats, if made in the heat of anger, may be other light threats. If the threats are directed to a person who is absent and uttered in a temporary fit of anger, the offense is only other light threats. Other Light Threats No demand for money

When a person is required to give bail bond: 1. When he threatens another under the circumstances mentioned in Art. 282 (Grave Threats). 2. When he threatens another under the circumstances mentioned in Art. 283 (Light Threats). Bond for Good Behavior v. Bond to Keep the Peace Bond for Good Bond to Keep the Behavior Peace Applicable only to Not application to any grave threats and light particular case threats If the offender fails to give bond, he shall be detained for a period If offender fails to give not exceeding 6 months bail, he shall be (if prosecuted for sentenced to destierro grave/less grave felony) or not exceeding 30 days (light felony) Not a distinct penalty A distinct penalty

j. Article 285 – Other Light Threats Mode 1: Threat w/weapon in a quarrel Threatening another with a weapon, or by drawing such weapon in a quarrel, unless it be in lawful selfdefense;

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No condition imposed

Threat is not deliberate

Grave Threats and Light Threats In certain cases, demand for money is material In certain cases, imposed condition is material. Threat is deliberate

k. Article 286 - Grave Coercions Mode 1: Preventing w/ violence, something not prohibited by law Preventing another, by means of violence, threats or intimidation, from doing something not prohibited by law; Mode 2: Compelling another to do something v. will Compelling another, by means of violence, threats or intimidation, to do something against his will, whether it be right or wrong. Elements: 1. A person prevented another from doing something not prohibited by law, or that he compelled him to do something against his will; be it right or wrong; 2. The prevention or compulsion be effected by violence, threats or intimidation; and 3. The person that restrained the will and liberty of another had not the authority of law or the right to do so, or in other words, that the restraint shall

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not be made under authority of law or in the exercise of any lawful right.

arising to the owner from the interference, is much greater. (Art. 432, Civil Code)

Two ways of committing Grave Coercion: 1. Preventive – Preventing another, by means of violence, threats, or intimidation, from doing something not prohibited by law 2. Compulsive – Compelling another, by means of violence, threats, or intimidation, to do something against his will, whether it be right or wrong

Neither the crime of threats nor coercion is committed although the accused, a branch manager of a bank made the complainant sign a withdrawal slip for the amount needed to pay the spurious dollar check she had encashed, and also made her execute an affidavit regarding the return of the amount against her better sense and judgment. The complainant may have acted reluctantly and with hesitation, but still, it was voluntary. [Lee v. CA, G.R. No. 90423 (1991)]

Purpose of the Law: To enforce the principle that no person may take the law into his hands, and that our government is one of law, not of men. Arises only if the act which the offender prevented another to do is not prohibited by law or ordinance. If a person prohibits another to do an act because the act is a crime, even though some sort of violence or intimidation is employed, it would not give rise to grave coercion. It may only give rise to threat or physical injuries, if some injuries are inflicted. In case of grave coercion where the offended party is being compelled to do something against his will, whether it be wrong or not, the crime of grave coercion is committed if violence or intimidation is employed in order to compel him to do the act. A public officer who shall prevent by means of violence or threats the ceremonies or manifestations of any religion is guilty of interruption of religious worship (Art. 132). Any person who, by force, prevents the meeting of a legislative body is liable under Art. 143. Any person who shall use force or intimidation to prevent any member of Congress from attending the meetings thereof, expressing his opinions, or casting his vote is liable under Art. 145.

l. Article 287 - Light Coercions Elements: 1. Offender must be a creditor; 2. He seizes anything belonging to his debtor: 3. The seizure of the thing be accomplished by means of violence or a display of material force producing intimidation; 4. The purpose of the offender is to apply the same to the payment of the debt. Deals with light coercions wherein violence is employed by the offender who is a creditor in seizing anything belonging to his debtor for the purpose of applying the same to the payment of the debt. Bar Question: A was caught peeping through a small hole in the bathroom door while a young 16-year-old was taking a bath. A liable for: Light Coercion. Reason: Unjust vexation is defined as any act committed without violence, but which unjustifiably annoys or vexes an innocent person amounts to light coercion. It should include any human conduct which, although not productive of some physical or material harm would, however, unjustifiably annoy or vex an innocent person.

The crime is not grave coercion when the violence is employed to seize anything belonging to the debtor of the offender. It is light coercion under Art. 287.

Unjust Vexation Any act committed without violence, but which unjustifiably annoys or vexes an innocent person amounts to light coercion. It should include any human conduct which, although not productive of some physical or material harm would, however, unjustifiably annoy or vex an innocent person.

Coercion is consummated even if the offended party did not accede to the purpose of coercion.

Unjust Vexation is distinguished from grave coercion by the absence of violence.

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Threats Intimidation is essential Intimidation is future and conditional Intimidation is directed against the victim or his family

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Coercion Intimidation or violence is the essence of the crime Force or violence must be imminent, actual, and immediate Intimidation is directed against the victim only

m. Article 288 - Other Similar Coercions Mode 1: Force/compel to buy commodities from him Forcing or compelling, directly or indirectly, or knowingly permitting the forcing or compelling of the laborer or employee of the offender to purchase merchandise of commodities of any kind from him; Elements: 1. Offender is any person, agent or officer of any association or corporation; 2. He or such firm or corporation has employed laborers or employees; 3. He forces or compels, directly or indirectly, or knowingly permits to be forced or compelled, any of his or its laborers or employees to purchase merchandise or commodities of any kind from him or from said firm or corporation. Mode 2: Wages paid by token or object Paying the wages due his laborer or employee by means of tokens or object other than the legal tender currency of the Philippines, unless expressly requested by such laborer or employee. Elements: 1. Offender pays the wages due a laborer or employee employed by him by means of tokens or object; 2. Those tokens or objects are other than the legal tender currency of the Philippines; 3. Such employee or laborer does not expressly request that he be paid by means of tokens or objects. General rule: wages shall be paid in legal tender and the use of tokens, promissory notes, vouchers, coupons or any other forms alleged to represent legal tender is absolutely prohibited even when expressly requested by the employee. (Section 1, Rule VIII, Book III, Omnibus Rules Implementing the Labor Code)

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No employer shall limit or otherwise interfere with the freedom of any employee to dispose of his wages. He shall not in any manner force, compel, oblige his employees to purchase merchandise, commodities or other property from the employer or from any other person. (Art. 112, Labor Code.)

n. Article 289 - Formation, Maintenance, and Prohibition of Combination of Capital or Labor through Violence or Threats Elements: 1. Offender employs violence or threats, in such a degree as to compel or force the laborers or employers in the free and legal exercise of their industry or work; 2. The purpose is to organize, maintain or prevent coalitions of capital or labor, strike of laborers or lockout of employers. Note: Repealed by the Labor Code.

3. Chapter III: Discovery and

Revelation of Secrets

a. Article 290 - Discovering Secrets through Seizure of Correspondence Elements: 1. Offender is a private individual or even a public officer not in the exercise of his official function; 2. He seizes the papers or letters of another; 3. The purpose is to discover the secrets of such another person; 4. Offender is informed of the contents of the papers or letters seized. This is a crime against the security of one’s papers and effects. The purpose must be to discover its effects. The act violates the privacy of communication. According to Dean Ortega, it is not necessary that the offender should actually discover the contents of the letter. Reyes, citing People v. Singh, CA, 40 OG, Suppl. 5, 35, believes otherwise. The last paragraph of Article 290 expressly makes the provision of the first and second paragraph thereof inapplicable to parents, guardians, or persons entrusted with the custody of minors placed under

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their care or custody, and to the spouses with respect to the papers or letters of either of them.

3. 4.

The teachers or other persons entrusted with the care and education of minors are included in the exceptions.

Secrets must relate to manufacturing processes.

Distinction from estafa, damage to property, and unjust vexation: 1. If the act had been executed with intent to gain, it would be estafa; 2. If, on the other hand, the purpose was not to defraud, but only to cause damage to another, it would merit the qualification of damage to property; 3. If the intention was merely to cause vexation preventing another to do something which the law does not prohibit or compel him to execute what he does not want, the act should be considered as unjust vexation.

b. Article 291 - Revealing Secrets with Abuse of Office Elements: 1. Offender is a manager, employee or servant; 2. He learns the secrets of his principal or master in such capacity; 3. He reveals such secrets. An employee, manager, or servant who came to know of the secret of his master or principal in such capacity and reveals the same shall also be liable regardless of whether or not the principal or master suffered damages. Essence of this crime is that the offender learned of the secret in the course of his employment. He is enjoying a confidential relation with the employer or master so he should respect the privacy of matters personal to the latter. Reason: no one has a right to the personal privacy of another.

c. Article 292 - Revelation of Industrial Secrets Elements: 1. Offender is a person in charge, employee or workman of a manufacturing or industrial establishment; 2. The manufacturing or industrial establishment has a secret of the industry which the offender has learned;

Offender reveals such secrets; Prejudice is caused to the owner.

The act constituting the crime is revealing the secret of the industry which the offender has learned. The revelation of the secret might be made after the employee or workman had ceased to be connected with the establishment. Prejudice is an element of the offense.

d. Special Laws RA 4200 (ANTI WIRE TAPPING ACT) Punishable Acts It shall be unlawful for: 1. Any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dictaphone or walkie-talkie or tape recorder, or however otherwise described: 2. Any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition. Any person who willfully or knowingly does or who shall aid, permit, or cause to be done any of the acts declared to be unlawful in the preceding section or who violates the provisions of the following section or of any order issued thereunder, or aids, permits, or causes such violation shall, upon conviction thereof, be punished by imprisonment for not less than six months or more than six years and with the accessory penalty of perpetual absolute disqualification from public office if the offender be a public official at the time of the commission of the offense, and, if the

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offender is an alien he shall be subject to deportation proceedings. [Sec. 2, RA 4200] Exceptions: Any peace officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful in the two preceding sections in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the RPC, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security: Provided, That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and a showing: 1. that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed; 2. that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any of such crimes; and 3. that there are no other means readily available for obtaining such evidence. Note: RA 9372: Human Security Act

SEC. 7. Surveillance of Suspects and Interception and Recording of Communications. The provisions of RA 4200

(Anti-wire Tapping Law) to the contrary notwithstanding, a police or law enforcement official and the members of his team may, upon a written order of the Court of Appeals, listen to, intercept and record, with the use of any mode, form, kind or type of electronic or other surveillance equipment or intercepting and tracking devices, or with the use of any other suitable ways and means for that purpose, any communication, message, conversation, discussion, or spoken or written words between members of a judicially declared and outlawed

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terrorist organization, association, or group of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism. Provided, That surveillance, interception and recording of communications between lawyers and clients, doctors and patients, journalists and their sources and confidential business correspondence shall not be authorized.

SEC. 8. Formal Application for Judicial Authorization. - The written order of the

authorizing division of the Court of Appeals to track down, tap, listen to, intercept, and record communications, messages, conversations, discussions, or spoken or written words of any person suspected of the crime of terrorism or the crime of conspiracy to commit terrorism shall only be granted by the authorizing division of the Court of Appeals upon an ex parte written application of a police or of a law enforcement official who has been duly authorized in writing by the AntiTerrorism Council created in Section 53 of this Act to file such ex parte application, and upon examination under oath or affirmation of the applicant and the witnesses he may produce to establish: (a) that there is probable cause to believe based on personal knowledge of facts or circumstances that the said crime of terrorism or conspiracy to commit terrorism has been committed, or is being committed, or is about to be committed; (b) that there is probable cause to believe based on personal knowledge of facts or circumstances that evidence, which is essential to the conviction of any charged or suspected person for, or to the solution or prevention of, any such crimes, will be obtained; and, (c) that there is no other effective means readily available for acquiring such evidence.

SEC. 9.Classification and Contents of the Order of the Court. - The written order granted

by the authorizing division of the Court of Appeals as well as its order, if any, to extend or renew the same, the original application of the applicant, including his application to extend or renew, if any, and the written authorizations of the AntiTerrorism Council shall be deemed and are hereby declared as classified information: Provided, That the person being surveilled or whose communications, letters, papers, messages, conversations. Discussions, spoken or written words and effects have been monitored, listened to, bugged or recorded by law enforcement authorities has the right to be informed of the acts

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done by the law enforcement authorities in the premises or to challenge, if he or she intends to do so, the legality of the interference before the Court of Appeals which issued the written order. The written order of the authorizing division of the Court of Appeals shall specify the following: (a) the identity, such as name and address, if known, of the charged or suspected person whose communications, messages, conversations, discussions, or spoken or written words are to be tracked down, tapped, listened to, intercepted, and recorded and, in the case of radio, electronic, or telephonic (whether wireless or otherwise) communications, messages, conversations, discussions, or spoken or written words, the electronic transmission systems or the telephone numbers to be tracked down, tapped, listened to, intercepted, and recorded and their locations or if the person suspected of the crime of terrorism or conspiracy to commit terrorism is not fully known, such person shall be subject to continuous surveillance provided there is a reasonable ground to do so; (b) the identity (name, address, and the police or law enforcement organization) of the police or of the law enforcement official, including the individual identity (names, addresses, and the police or law enforcement organization) of the members of his team, judicially authorized to track down, tap, listen to, intercept, and record the communications, messages, conversations, discussions, or spoken or written words; (c) the offense or offenses committed, or being committed, or sought to be prevented; and, (d) the length of time within which the authorization shall be used or carried out.

SEC. 10. Effective Period of Judicial Authorization. - Only for the length of time

specified in the written order of the authorizing division of the Court of Appeals, which shall not exceed a period of thirty (30) days from the date of receipt of the written order of the authorizing division of the CA by the applicant police or law enforcement official. The authorizing division of the CA may extend or renew the said authorization for another nonextendible period, which shall not exceed 30 days from the expiration of the original period: Provided, That the authorizing division of the CA is satisfied that such extension or renewal is in the public interest: and Provided, further, That the ex parte application for extension or renewal, which must be filed by the original applicant, has been duly authorized in writing by the Anti-Terrorism Council.

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In case of death of the original applicant or in case he is physically disabled to file the application for extension or renewal, the one next in rank to the original applicant among the members of the team named in the original written order of the authorizing division of the CA shall file the application for extension or renewal: Provided, That, without prejudice to the liability of the police or law enforcement personnel under Section 20 hereof, the applicant police or law enforcement official shall have thirty (30) days after the termination of the period granted by the Court of Appeals as provided in the preceding paragraphs within which to file the appropriate case before the Public Prosecutor’s Office for any violation of this Act. If no case is filed within the thirty (30)-day period, the applicant police or law enforcement official shall immediately notify the person subject of the surveillance, interception and recording of the termination of the said surveillance, interception and recording. The penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon the applicant police or law enforcement official who fails to notify the person subject of the surveillance, monitoring, interception and recording as specified above.

SEC. 11. Custody of Intercepted and Recorded Communications. - All tapes, discs, and

recordings made pursuant to the authorization of the authorizing division of the CA, including all excerpts and summaries thereof as well as all written notes or memoranda made in connection therewith, shall, within forty-eight (48) hours after the expiration of the period fixed in the written order of the authorizing division of the CA or within forty-eight (48) hours after the expiration of any extension or renewal granted by the authorizing division of the Court of Appeals, be deposited with the authorizing Division of the CA in a sealed envelope or sealed package, as the case may be, and shall be accompanied by a joint affidavit of the applicant police or law enforcement official and the members of his team. In case of death of the applicant or in case he is physically disabled to execute the required affidavit, the one next in rank to the applicant among the members of the team named in the written order of the authorizing division of the CA shall execute with the members of the team that required affidavit.

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It shall be unlawful for any person, police officer or any custodian of the tapes, discs and recording, and their excerpts and summaries, written notes or memoranda to copy in whatever form, to remove, delete, expunge, incinerate, shred or destroy in any manner the items enumerated above in whole or in part under any pretext whatsoever. Any person who removes, deletes, expunges incinerates, shreds or destroys the items enumerated above shall suffer a penalty of not less than six (6) years and one day to twelve (12) years of imprisonment.

SEC. 12. Contents of Joint Affidavit. - The joint

affidavit of the police or of the law enforcement official and the individual members of his team shall state: (a) the number of tapes, discs, and recordings that have been made, as well as the number of excerpts and summaries thereof and the number of written notes and memoranda, if any, made in connection therewith; (b) the dates and times covered by each of such tapes, discs, and recordings; (c) the number of tapes, discs, and recordings, as well as the number of excerpts and summaries thereof and the number of written notes and memoranda made in connection therewith that have been included in the deposit; and (d) the date of the original written authorization granted by the Anti-Terrorism Council to the applicant to file the ex parte application to conduct the tracking down, tapping, intercepting, and recording, as well as the date of any extension or renewal of the original written authority granted by the authorizing division of the Court of Appeals. The joint affidavit shall also certify under oath that no duplicates or copies of the whole or any part of any of such tapes, discs, and recordings, and that no duplicates or copies of the whole or any part of any of such excerpts, summaries, written notes, and memoranda, have been made, or, if made, that all such duplicates and copies are included in the sealed envelope or sealed package, as the case may be, deposited with the authorizing division of the Court of Appeals. It shall be unlawful for any person, police or law enforcement official to omit or exclude from the joint affidavit any item or portion thereof mentioned in this Section. Any person, police or law enforcement officer who violates any of the acts proscribed in the preceding paragraph shall suffer the penalty of not less than

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ten (10) years and one day to twelve (12) years of imprisonment.

SEC. 13.Disposition of Deposited Materials. -

The sealed envelope or sealed package and the contents thereof, which are deposited with the authorizing division of the Court of Appeals, shall be deemed and are hereby declared classified information, and the sealed envelope or sealed package shall not be opened and its contents (including the tapes, discs, and recordings and all the excerpts and summaries thereof and the notes and memoranda made in connection therewith) shall not be divulged, revealed, read, replayed, or used as evidence unless authorized by written order of the authorizing division of the Court of Appeals, which written order shall be granted only upon a written application of the Department of Justice filed before the authorizing division of the Court of Appeals and only upon a showing that the Department of Justice has been duly authorized in writing by the Anti-Terrorism Council to file the application with proper written notice to the person whose conversation, communication, message discussion or spoken or written words have been the subject of surveillance, monitoring, recording and interception to open, reveal, divulge, and use the contents of the sealed envelope or sealed package as evidence. Any person, law enforcement official or judicial authority who violates his duty to notify in writing the persons subject of the surveillance as defined above shall suffer the penalty of six (6) years and one day to eight (8) years of imprisonment.

SEC. 14.Application to Open Deposited Sealed Envelop or Sealed Package. - The written application with notice to the party concerned to open the deposited sealed envelope or sealed package shall clearly state the purpose or reason: (a) for opening the sealed envelope or sealed package; (b) for revealing or disclosing its classified contents; (c) for replaying, divulging, and or reading any of the listened to, intercepted, and recorded communications, messages, conversations, discussions, or spoken or written words (including any of the excerpts and summaries thereof and any of the notes or memoranda made in connection therewith); and, (d) for using any of said listened to, intercepted, and recorded communications, messages, conversations, discussions, or spoken or written words (including any of the excerpts and summaries thereof and any of the notes or

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memoranda made in connection therewith) as evidence.

personnel who authorization.

Any person, law enforcement official or judicial authority who violates his duty to notify as defined above shall suffer the penalty of six (6) years and one day to eight (8) years of imprisonment.

SEC. 26.Restriction on Travel. – In cases where

SEC. 15.Evidentiary Value of Deposited Materials. - Any listened to, intercepted, and

recorded communications, messages, conversations, discussions, or spoken or written words, or any part or parts thereof, or any information or fact contained therein, including their existence, content, substance, purport, effect, or meaning, which have been secured in violation of the pertinent provisions of this Act, shall absolutely not be admissible and usable as evidence against anybody in any judicial, quasijudicial, legislative, or administrative investigation, inquiry, proceeding, or hearing.

SEC. 16.Penalty for Unauthorized or malicious Interceptions and/or Recordings. - Any police

or law enforcement personnel who, not being authorized to do so by the authorizing division of the Court of Appeals, tracks down, taps, listens to, intercepts, and records in whatever manner or form any communication, message, conversation, discussion, or spoken or written word of a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism shall be guilty of an offense and shall suffer the penalty of ten (10) years and one day to twelve (12) years of imprisonment. In addition to the liability attaching to the offender for the commission of any other offense, the penalty of ten (10) years and one day to twelve (12) years of imprisonment and the accessory penalty of perpetual absolute disqualification from public office shall be imposed upon any police or law enforcement personnel who maliciously obtained an authority from the Court of Appeals to track down, tap, listen to, intercept, and record in whatever manner or form any communication, message, conversation, discussion, or spoken or written words of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism: Provided, That notwithstanding Section 13 of this Act, the party aggrieved by such authorization shall be allowed access to the sealed envelope or sealed package and the contents thereof as evidence for the prosecution of any police or law enforcement

maliciously

procured

said

evidence of guilt is not strong, and the person charged with the crime of terrorism or conspiracy to commit terrorism is entitled to bail and is granted the same, the court, upon application by the prosecutor, shall limit the right of travel of the accused to within the municipality or city where he resides or where the case is pending, in the interest of national security and public safety, consistent with Article III, Section 6 of the Constitution. Travel outside of said municipality or city, without the authorization of the court, shall be deemed a violation of the terms and conditions of his bail, which shall then be forfeited as provided under the Rules of Court. He or she may also be placed under house arrest by order of the court at his or her usual place of residence. While under house arrest, he or she may not use telephones, cellphones, e-mails, computers, the internet or other means of communications with people outside the residence until otherwise ordered by the court. The restrictions abovementioned shall be terminated upon the acquittal of the accused or of the dismissal of the case filed against him or earlier upon the discretion of the court on motion of the prosecutor or of the accused. SEC. 27. Judicial Authorization Required to

Examine Bank Deposits, Accounts, and Records. - The provisions of Republic Act No.

1405 as amended, to the contrary notwithstanding, the justices of the Court of Appeals designated as a special court to handle anti-terrorism cases after satisfying themselves of the existence of probable cause in a hearing called for that purpose that (1) a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, (2) of a judicially declared and outlawed terrorist organization, association, or group of persons, and (3) of a member of such judicially declared and outlawed organization, association, or group of persons, may authorize in writing any police or law enforcement officer and the members of his/her team duly authorized in writing by the antiterrorism council to: (a) examine, or cause the examination of, the deposits, placements, trust accounts, assets and records in a bank or financial institution; and (b) gather or cause the gathering of

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any relevant information about such deposits, placements, trust accounts, assets, and records from a bank or financial institution. The bank or financial institution concerned shall not refuse to allow such examination or to provide the desired information, when so ordered by and served with the written order of the Court of Appeals.

SEC. 28. Application to Examine Bank Deposits, Accounts, and Records. - The written

order of the Court of Appeals authorizing the examination of bank deposits, placements, trust accounts, assets, and records: (1) of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, (2) of any judicially declared and outlawed terrorist organization, association, or group of persons, or (3) of any member of such organization, association, or group of persons in a bank or financial institution, and the gathering of any relevant information about the same from said bank or financial institution, shall only be granted by the authorizing division of the Court of Appeals upon an ex parte application to that effect of a police or of a law enforcement official who has been duly authorized in writing to file such ex parte application by the Anti-Terrorism Council created in Section 53 of this Act to file such ex parte application, and upon examination under oath or affirmation of the applicant and the witnesses he may produce to establish the facts that will justify the need and urgency of examining and freezing the bank deposits, placements, trust accounts, assets, and records: (1) of the person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, (2) of a judicially declared and outlawed terrorist organization, association or group of persons, or (3) of any member of such organization, association, or group of persons.

SEC. 29. Classification and Contents of the Court Order Authorizing the Examination of Bank Deposits, Accounts, and Records. - The

written order granted by the authorizing division of the Court of Appeals as well as its order, if any, to extend or renew the same, the original ex parte application of the applicant, including his ex parte application to extend or renew, if any, and the written authorizations of the Anti Terrorism Council, shall be deemed and are hereby declared as classified information: Provided, That the person whose bank deposits, placements, trust accounts, assets, and records have been examined, frozen, sequestered and seized by law enforcement authorities has the right to be informed of the acts

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done by the law enforcement authorities in the premises or to challenge, if he or she intends to do so, the legality of the interference. The written order of the authorizing division of the Court of Appeals designated to handle cases involving terrorism shall specify: (a) the identity of the said: (1) person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, (2) judicially declared and outlawed terrorist organization, association, or group of persons, and (3) member of such judicially declared and outlawed organization, association, or group of persons, as the case may be, whose deposits, placements, trust accounts, assets, and records are to be examined or the information to be gathered; (b) the identity of the bank or financial institution where such deposits, placements, trust accounts, assets, and records are held and maintained; (c) the identity of the persons who will conduct the said examination and the gathering of the desired information; and, (d) the length of time the authorization shall be carried out.

SEC. 30. Effective Period of Court Authorization to Examine and Obtain Information on Bank Deposits, Accounts, and Records. - The authorization issued or granted by the authorizing division of the Court of Appeals to examine or cause the examination of and to freeze bank deposits, placements, trust accounts, assets, and records, or to gather information about the same, shall be effective for the length of time specified in the written order of the authorizing division of the Court of Appeals, which shall not exceed a period of thirty (30) days from the date of receipt of the written order of the authorizing division of the Court of Appeals by the applicant police or law enforcement official. The authorizing division of the Court of Appeals may extend or renew the said authorization for another period, which shall not exceed thirty (30) days renewable to another thirty (30) days from the expiration of the original period, provided that the authorizing division of the Court of Appeals is satisfied that such extension or renewal is in the public interest, and provided further that the application for extension or renewal, which must be filed by the original applicant, has been duly authorized in writing by the Anti-Terrorism Council. In case of death of the original applicant or in case he is physically disabled to file the application for extension or renewal, the one next in rank to the original applicant among the members of the team

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named in the original written order of the authorizing division of the Court of Appeals shall file the application for extension or renewal: Provided, That, without prejudice to the liability of the police or law enforcement personnel under Section 19 hereof, the applicant police or law enforcement official shall have thirty (30) days after the termination of the period granted by the Court of Appeals as provided in the preceding paragraphs within which to file the appropriate case before the Public Prosecutor’s Office for any violation of this Act. If no case is filed within the thirty (30)-day period, the applicant police or law enforcement official shall immediately notify in writing the person subject of the bank examination and freezing of bank deposits, placements, trust accounts, assets and records. The penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon the applicant police or law enforcement official who fails to notify in writing the person subject of the bank examination and freezing of bank deposits, placements, trust accounts, assets and records. Any person, law enforcement official or judicial authority who violates his duty to notify in writing as defined above shall suffer the penalty of six (6) years and one day to eight (8) years of imprisonment.

SEC. 31. Custody of Bank Data and Information Obtained after Examination of Deposits, Placements, Trust Accounts, Assets and Records. - All information, data, excerpts, summaries, notes, memoranda, working sheets, reports, and other documents obtained from the examination of the bank deposits, placements, trust accounts, assets and records of: (1) a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism, (2) a judicially declared and outlawed terrorist organization, association, or group of persons, or (3) a member of any such organization, association, or group of persons shall, within fortyeight (48) hours after the expiration of the period fixed in the written order of the authorizing division of the Court of Appeals or within fortyeight (48) hours after the expiration of the extension or renewal granted by the authorizing division of the Court of Appeals, be deposited with the authorizing division of the Court of Appeals in a sealed envelope or sealed package, as the case may be, and shall be accompanied by a joint affidavit of the applicant police or law

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enforcement official and the persons who actually conducted the examination of said bank deposits, placements, trust accounts, assets and records.

SEC. 32. Contents of Joint Affidavit. - The joint

affidavit shall state: (a) the identifying marks, numbers, or symbols of the deposits, placements, trust accounts, assets, and records examined; (b) the identity and address of the bank or financial institution where such deposits, placements, trust accounts, assets, and records are held and maintained; (c) the number of bank deposits, placements, trust accounts, assets, and records discovered, examined, and frozen; (d) the outstanding balances of each of such deposits, placements, trust accounts, assets; (e) all information, data, excerpts, summaries, notes, memoranda, working sheets, reports, documents, records examined and placed in the sealed envelope or sealed package deposited with the authorizing division of the Court of Appeals; (f) the date of the original written authorization granted by the Anti-Terrorism Council to the applicant to file the ex parte application to conduct the examination of the said bank deposits, placements, trust accounts, assets and records, as well as the date of any extension or renewal of the original written authorization granted by the authorizing division of the Court of Appeals; and (g) that the items enumerated were all that were found in the bank or financial institution examined at the time of the completion of the examination. The joint affidavit shall also certify under oath that no duplicates or copies of the information, data, excerpts, summaries, notes, memoranda, working sheets, reports, and documents acquired from the examination of the bank deposits, placements, trust accounts, assets and records have been made, or, if made, that all such duplicates and copies are placed in the sealed envelope or sealed package deposited with the authorizing division of the Court of Appeals. It shall be unlawful for any person, police officer or custodian of the bank data and information obtained after examination of deposits, placements, trust accounts, assets and records to copy, to remove, delete, expunge, incinerate, shred or destroy in any manner the items enumerated above in whole or in part under any pretext whatsoever. Any person who copies, removes, deletes, expunges incinerates, shreds or destroys the items enumerated above shall suffer a penalty of not less

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than six (6) years and one day to twelve (12) years of imprisonment.

SEC. 46. Penalty for Unauthorized Revelation of Classified Materials. - The penalty of ten (10)

years and one day to twelve (12) years of imprisonment shall be imposed upon any person, police or law enforcement agent, judicial officer or civil servant who, not being authorized by the Court of Appeals to do so, reveals in any manner or form any classified information under this Act. RA 9208: ANTI-TRAFFICKING IN PERSONS ACT OF 2003

(c)

(d)

(e)

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labor, slavery, involuntary servitude or debt bondage; To offer or contract marriage, real or simulated, for the purpose of acquiring, buying, offering, selling, or trading them to engage in prostitution, pornography, sexual exploitation, forced labor or slavery, involuntary servitude or debt bondage; To undertake or organize tours and travel plans consisting of tourism packages or activities for the purpose of utilizing and offering persons for prostitution, pornography or sexual exploitation; To maintain or hire a person to engage in prostitution or pornography; To adopt or facilitate the adoption of persons for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; To recruit, hire, adopt, transport or abduct a person, by means of threat or use of force, fraud, deceit, violence, coercion, or intimidation for the purpose of removal or sale of organs of said person; and To recruit, transport or adopt a child to engage in armed activities in the Philippines or abroad.

Trafficking in Persons - refers to the recruitment, transportation, transfer or harboring, or receipt of persons with or without the victim's consent or knowledge, within or across national borders by means of threat or use of force, or other forms of coercion, abduction, fraud, deception, abuse of power or of position, taking advantage of the vulnerability of the person, or, the giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation which includes at a minimum, the exploitation or the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery, servitude or the removal or sale of organs.

(f)

The recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation shall also be considered as "trafficking in persons" even if it does not involve any of the means set forth in the preceding paragraph.

facilitate trafficking in persons, shall be unlawful to: (a) knowingly lease or sublease, use or allow to be used any house, building or establishment for the purpose of promoting trafficking in persons; (b) produce, print and issue or distribute unissued, tampered or fake counseling certificates, registration stickers and certificates of any government agency which issues these certificates and stickers as proof of compliance with government regulatory and pre-departure requirements for the purpose of promoting trafficking in persons; (c) advertise, publish, print, broadcast or distribute, or cause the advertisement, publication, printing, broadcasting or distribution by any means, including the use of information technology and the internet, of any brochure, flyer, or any propaganda material that promotes trafficking in persons; (d) assist in the conduct of misrepresentation or fraud for purposes of facilitating the acquisition of clearances and necessary exit documents from government agencies that are mandated to provide pre-departure

Punishable Acts

Section 4. Acts of Trafficking in Persons. - It shall be unlawful for any person, natural or juridical, to commit any of the following acts: (a) To recruit, transport, transfer; harbor, provide, or receive a person by any means, including those done under the pretext of domestic or overseas employment or training or apprenticeship, for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; (b) To introduce or match for money, profit, or material, economic or other consideration, any person or, as provided for under Republic Act No. 6955, any Filipino woman to a foreign national, for marriage for the purpose of acquiring, buying, offering, selling or trading him/her to engage in prostitution, pornography, sexual exploitation, forced

(g)

(h)

Section 5. Acts that Promote Trafficking in Persons.- The following acts which promote or

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registration and services for departing persons for the purpose of promoting trafficking in persons; (e) facilitate, assist or help in the exit and entry of persons from/to the country at international and local airports, territorial boundaries and seaports who are in possession of unissued, tampered or fraudulent travel documents for the purpose of promoting trafficking in persons; (f) confiscate, conceal, or destroy the passport, travel documents, or personal documents or belongings of trafficked persons in furtherance of trafficking or to prevent them from leaving the country or seeking redress from the government or appropriate agencies; and (g) knowingly benefit from, financial or otherwise, or make use of, the labor or services of a person held to a condition of involuntary servitude, forced labor, or slavery.

Section 6. Qualified Trafficking in Persons. The following are considered as qualified trafficking: (a) When the trafficked person is a child; (b) When the adoption is effected through Republic Act No. 8043, otherwise known as the "Inter-Country Adoption Act of 1995" and said adoption is for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; (c) When the crime is committed by a syndicate, or in large scale. Trafficking is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons, individually or as a group; (d) When the offender is an ascendant, parent, sibling, guardian or a person who exercises authority over the trafficked person or when the offense is committed by a public officer or employee; (e) When the trafficked person is recruited to engage in prostitution with any member of the military or law enforcement agencies; (f) When the offender is a member of the military or law enforcement agencies; and (g) When by reason or on occasion of the act of trafficking in persons, the offended party dies, becomes insane, suffers mutilation or is afflicted with Human Immunodeficiency

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Virus (HIV) or the Acquired Immune Deficiency Syndrome (AIDS).

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J. Title X. Crimes against Property 1.

Chapter I: Robbery in General a. Article 293 - Who Are Guilty of Robbery b. Article 294 - With Violence or Intimidation of Persons c. Article 295 - Robbery with Physical Injuries, in an Uninhabited Place and by a Band d. Article 296 - Definition of a Band and Penalty Incurred by the Members Thereof e. Article 297 - Attempted and Frustrated Robbery with Homicide f. Article 298 - Execution of Deeds through Violence or Intimidation g. Article 299 - Robbery in an Inhabited House or Public Building or Edifice Devoted to Worship h. Article 300 - Robbery in an Uninhabited Place and by a Band i. Article 302 - In an Uninhabited Place or Private Building j. Article 303 - Robbery of Cereals, Fruits or Firewood in an Inhabited Place or Private Building k. Article 304 - Possession of Picklock or Similar Tools l. Article 305 - False Keys

2.

Chapter II: Brigandage a. Article 306 - Who Are Brigands b. Article 307 - Aiding and Abetting a Band of Brigands

3.

Chapter III: Theft a. Article 308 - Who Are Liable for Theft b. Article 309 – Penalties c. Article 310 - Qualified Theft d. Article 311 - Theft of the Property of the National Library and National Museum

4.

5. 6.

Chapter IV: Usurpation a. Article 312 - Occupation of Real Property or Usurpation of Real Rights in Property b. Article 313 - Altering Boundaries or Landmarks Chapter V: Culpable Insolvency a. Article 314 - Fraudulent Insolvency Chapter VI: Swindling a. Article 315 – Estafa b. Article 316 - Other Forms of Swindling c. Article 317 - Swindling of a Minor d. Article 318 - Other Deceits

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7.

Chapter VII: Chattel mortgage a. Article 319 - Removal, Sale, or Pledge of Mortgaged Property

8.

Chapter VIII: Arson and other Crimes involving Destruction

9.

Chapter IX: Malicious mischief a. Article 327 - Who Are Responsible b. Article 328 - Special Cases of Malicious Mischief c. Article 329 - Other Mischiefs d. Article 330 - Damage and Obstruction to Means of Communication e. Article 331 - Destroying or Damaging Statues, Public Monuments or Paintings

10. Chapter X: Exemption from Criminal Liability a. Article 332 - Exemption from Criminal Liability in Crimes Against Property

1. Chapter I: Robbery in

General

a. Article 293 - Who Are Guilty of Robbery Elements of Robbery in General 1. That there is personal property belonging to another; 2. That there is unlawful taking of that property; 3. That the taking is with intent to gain; and 4. That there is violence against or intimidation of persons or force upon things. The property taken must be personal, if real property/right is usurped the crime is usurpation (Art. 312). Prohibitive articles may be the subject of robbery, e.g., opium From the moment the offender gains possession of the object, even without the chance to dispose of the same, the unlawful taking is complete. “Taking” – depriving the offended party of possession of the thing taken with the character of permanency. Intent to gain is presumed from the unlawful taking. It cannot be established by direct evidence, except in case of confession.

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It is not necessary that violence or intimidation is present from the beginning. If the violence or intimidation at any time before asportation is complete, the taking of property is qualified to robbery. When is violence committed? General rule: Violence or intimidation must be present BEFORE the taking of personal property is complete. Exception: When violence results in homicide, rape, intentional mutilation, or any of the serious physical injuries penalized in par. 1 and 2 of Art. 263, the taking of the personal property is robbery complexed with any of those crimes under Art. 294, even if the taking was already complete when violence was used by the offender.

7.

becomes ill or incapacitated for labor for more than 30 days. If the violence employed by the offender does not cause any of the serious physical injuries defined in Art. 263, or if the offender employs intimidation only. Violence against or intimidation of person

Use of force upon things

The taking is always robbery

The taking is robbery only if force is used to: 1. enter the building 2. break doors, wardrobes, chests, or any other kind of locked or sealed furniture or receptacle inside the building; OR 3. force them open outside after taking the same from the building (Art. 299 & 302)

Value of the thing taken is immaterial. The penalty depends on: 1. the result of the violence used (homicide, rape, intentional mutilation, serious physical injuries, less serious or slight physical injuries resulted) and 2. the existence of intimidation only

If committed in an inhabited house, public building, or edifice devoted to religious worship, the penalty is based on: 1. the value of the thing taken and 2. whether or not the offenders carry arms

b. Article 294 – Robbery with Violence against or Intimidation of Persons Acts punished under Art 294: 1. When by reason or on occasion of the robbery, Homicide is committed. (Robbery with Homicide) 2. When the robbery is accompanied by Rape or Intentional Mutilation or Arson. (Robbery with Rape, Robbery with Intentional Mutilation, Robbery with Arson) 3. When by reason or on occasion of such robbery, any of the Physical Injuries resulting in insanity, imbecility, impotency, or blindness is inflicted. 4. When by reason or on occasion of robbery, any of the Physical Injuries resulting in the loss of the use of speech or the power to hear or to smell, or the loss of an eye, a hand, a foot, an arm or a leg or the loss of the use of any such member, or incapacity for the work in which the injured person is theretofore habitually engaged is inflicted. 5. If the violence or intimidation employed in the commission of the robbery is carried to a degree clearly unnecessary for the commission of the crime. 6. When in the course of its execution, the offender shall have inflicted upon any person not responsible for the commission of the robbery any of the Physical Injuries in consequence of which the person injured becomes deformed or loses any other member of his body or loses the use thereof or becomes ill or incapacitated for the performance of the work in which he is habitually engaged for labor for more than 90 days or the person injured

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The crime defined in this article is a special complex crime. “On the occasion” and “by reason” mean that homicide or serious physical injuries must be committed in the course or because of the robbery. The violence must be against the person, not upon the thing taken. It must be present before the taking of personal property is complete. “Homicide” is used in its generic sense, as to include parricide and murder. Hence, there is no robbery with murder. The crime is still robbery with homicide even

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if, in the course of the robbery, the person killed was another robber or a bystander. Even if the rape was committed in another place, it is still robbery with rape. When the taking of personal property of a woman is an independent act following defendant’s failure to consummate the rape, there are two distinct crimes committed: attempted rape and theft. Additional rape committed on the same occasion of robbery will not increase the penalty. Absence of intent to gain will make the taking of personal property grave coercion if there is violence used (Art. 286). If both violence/intimidation of persons (294) and force upon things (299/302) co-exist, it will be considered as violation of Art 294 because it is more serious than in Art 299/302. BUT when robbery is under Art 294 par 4 & 5 the penalty is lower than in Art 299 so the complex crime should be imputed for the higher penalty to be imposed without sacrificing the principle that robbery w/ violence against persons is more severe than that w/ force upon things. [Napolis v. CA, G.R No. L28865 (1972)] When the taking of the victim’s gun was to prevent the victim from retaliating, then the crimes committed are theft and homicide not robbery with homicide.

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be committed before, during or after the robbery. But if the primary intent of the accused was to rape and his taking away the belongings of the victim was only a mere afterthought, two separate felonies are committed: Rape and Theft or Robbery depending upon the circumstances surrounding the unlawful taking. [People v. Naag, G.R. No. 1361394 (2001)]

c. Article 295 - Robbery with Physical Injuries, in an Uninhabited Place and by a Band Robbery with violence against or intimidation of persons is qualified when it is committed: 1. In an Uninhabited place, or 2. By a Band, or 3. By Attacking a moving train, street car, motor vehicle, or airship, or 4. By Entering the passengers’ compartments in a train, or in any manner taking the passengers thereof by surprise in the respective conveyances, or 5. On a Street, road, highway, or alley, AND the intimidation is made with the use of Firearms Here, the offender shall be punished by the maximum periods of the proper penalties in Art. 294. The penalty cannot be offset by a generic mitigating circumstance.

These offenses are known as SPECIAL COMPLEX CRIMES. Crimes defined under this article are the following: 1. Robbery with homicide 2. Robbery with rape 3. Robbery with intentional mutilation 4. Robbery with arson 5. Robbery with serious physical injuries

The intimidation with the use of firearm qualifies only robbery on a street, road, highway, or alley.

ROBBERY WITH HOMICIDE; (Absorption Theory applied) Attempted homicide or attempted murder committed during or on the occasion of the robbery, as in this case, is absorbed in the crime of Robbery with Homicide which is a special complex crime that remains fundamentally the same regardless of the number of homicides or injuries committed in connection with the robbery. [People v. Cabbab, Jr., G.R. No. 173479 (2007)]

Outline of Art. 296 (Definition of a Band and Penalty Incurred by the Members Thereof): 1. When at least 4 armed malefactors take part in the commission of a robbery, it is deemed committed by a band. 2. When any of the arms used in the commission of robbery is not licensed, penalty upon all the malefactors shall be the maximum of the corresponding penalty provided by law, without prejudice to the criminal liability for illegal possession of such firearms. 3. Any member of a band who was present at the commission of a robbery by the band, shall be punished as principal of any of the assaults committed by the band, unless it be shown that he attempted to prevent the crime.

ROBBERY WITH RAPE If the intention of the accused was to rob, but rape was committed even before the asportation, the crime is the special complex crime of Robbery with Rape. So long as the intent of the accused is to rob, rape may

Any of these qualifying circumstances must be alleged in the information and proved during the trial.

d. Article 296 – Robbery by a Band

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Requisites for Liability for the acts of the other members: 1. Member of the band. 2. Present at the commission of the robbery. 3. Other members committed an assault. 4. He did not attempt to prevent assault. Conspiracy is presumed when robbery is by band. When the robbery was not committed by a band, the robber who did not take part in the assault by another is not liable for that assault. When the robbery was not by a band and homicide was not determined by the accused when they plotted the crime, the one who did not participate in the killing is liable for robbery only. It is only when the robbery is in band that all those present in the commission of the robbery may be punished for any of the assaults which any of its members might commit. But when there is conspiracy to commit homicide and robbery, all the conspirators, even if less than 4 armed men, are liable for the special complex crime of robbery with homicide. Art 296 is not applicable to principal by inducement, who was not present at the commission of the robbery, if the agreement was only to commit robbery. The article speaks of more than 3 armed malefactors who “takes part in the commission of the robbery” and member of a band “who is present at the commission of a robbery by a band.” Thus, a principal by inducement, who did not go with the band at the place of the commission of the robbery, is not liable for robbery with homicide, but only for robbery in band, there being no evidence that he gave instructions to kill the victim or intended that this should be done. When there was conspiracy for robbery only but homicide was also committed on the occasion thereof, all members of the band are liable for robbery with homicide. Whenever homicide is committed as a consequence of or on the occasion of a robbery, all those who took part in the commission of the robbery are also guilty as principals in the crime of homicide unless it appears that they endeavored to prevent the homicide.

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Proof of conspiracy is not essential to hold a member of the band liable for robbery with homicide actually committed by the other members of the band. There is no crime as “robbery with homicide in band”. Band is only ordinary aggravating circumstance in robbery w/ homicide In order for special aggravating circumstance of unlicensed firearm to be appreciated, it is condition sine qua non that offense charged be robbery by a band under Art 295. Pursuant to Art 295, circumstance of a band is qualifying only in robbery under par 3, 4 & 5 of Art 294. Hence, Art. 295 does not apply to robbery with homicide, or robbery with rape, or robbery with serious physical injuries under par. 1 of Art. 263. Special aggravating circumstance of unlicensed firearm is inapplicable to robbery w/ homicide, or robbery with rape, or robbery with physical injuries, committed by a band. [People v. Apduhan, G.R. No. L19491 (1968)]

e. Article 297 - Attempted and Frustrated Robbery with Homicide Elements: 1. There is attempted or frustrated robbery 2. A homicide is committed on the same occasion “Homicide” includes multiple homicides, murder, parricide, or even infanticide. The penalty is the same, whether robbery is attempted or frustrated. Robbery with homicide and attempted or frustrated robbery with homicide are special complex crimes, not governed by Art. 48, but by the special provisions of Arts. 294 & 297, respectively. There is only one crime of attempted robbery with homicide even if slight physical injuries were inflicted on other persons on the occasion or by reason of the robbery.

f. Article 298 - Execution of Deeds through Violence or Intimidation Elements: 1. Offender has Intent to defraud another

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2. 3.

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Offender Compels him to sign, execute, or deliver any public instrument or document Compulsion is by means of violence or intimidation.

If the violence resulted in the death of the person to be defrauded, crime is robbery with homicide and shall be penalized under Art 294 par. 1. Art. 298 applies to private or commercial document, but it does not apply if document is void. When the offended party is under obligation to sign, execute or deliver the document under the law, it is not robbery but coercion. By Force Upon Things Robbery by the use of force upon things is committed only when either: 1. Offender entered a house or building by any of the means specified in Art. 299 or Art. 302, or 2. Even if there was no entrance by any of those means, he broke a wardrobe, chest, or any other kind of locked or closed or sealed furniture or receptacle in the house or building, or he took it away to be broken or forced open outside.

g. Article 299 - Robbery in an Inhabited House or Public Building or Edifice Devoted to Worship Elements of robbery with force upon things under SUBDIVISION (A): 1. Offender entered a. An inhabited house b. Public building c. Edifice devoted to religious worship 2. Entrance was effected by any of the following means: a. Through an opening not intended for entrance or egress; b. By breaking any wall, roof, or floor, or door or window; c. By using False keys, picklocks or similar tools; or d. By using any Fictitious name or pretending the exercise of public authority. 3. That once inside the building, the offender took personal property belonging to another with intent to gain. There must be evidence that accused entered the dwelling house or building by any of the means enumerated in subdivision (a). In entering the

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building, there must be the intent to take personal property. “Inhabited house” – any shelter, ship, or vessel constituting the dwelling of one or more persons even though the inhabitants thereof are temporarily absent when the robbery is committed. “Public building” – every building owned by the Government or belonging to a private person but used or rented by the Government, although temporarily unoccupied by the same. Any of the four means described in subdivision (a) must be resorted to enter a house or building, not to get out otherwise it is only theft. The whole body of the culprit must be inside the building to constitute entering. Illustration: If the culprit had entered the house through an open door, and the owner, not knowing that the culprit was inside, closed and locked the door from the outside and left, and the culprit, after taking personal property in the house, went out through the window, it is only theft, not robbery. “Breaking” – means entering the building. The force used must be actual, as distinguished constructive force. “False keys” – genuine keys stolen from the owner or any keys other than those intended for use in the lock forcibly opened by the offender. The genuine key must be stolen, not taken by force or with intimidation, from the owner. If false key is used to open wardrobe or locked receptacle or drawer or inside door it is only theft.

Elements of robbery with force upon things under SUBDIVISION (B) of Art. 299: 1.

Offender is inside a dwelling house, public building, or edifice devoted to religious worship, regardless of the circumstances under which he entered it. 2. Offender takes personal property belonging to another, with intent to gain, under any of the following circumstances: a. Breaking of doors, wardrobes, chests, or any other kind of locked or sealed furniture or receptacle; or b. Taking such furniture or objects away to be broken or forced open outside the place of the robbery. Entrance into the building by any of the means mentioned in subdivision (a) is not required in robbery under subdivision (b)

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•

Even if the occupant was absent during the robbery, the place is still inhabited if the place was ordinarily inhabited and intended as a dwelling.

The term “door” in par. 1, subdivision (b) of Art. 299, refers only to “doors, lids or opening sheets” of furniture or other portable receptacles—not to inside doors of house or building. Breaking the keyhole of the door of a wardrobe, which is locked, is breaking a locked furniture. It is theft if the locked or sealed receptacle is not forced open in the building where it is kept or taken from to be broken outside. The penalty depends on the value of property taken and on whether or not offender carries arm. Arms carried must not be used to intimidate. Liability for carrying arms is extended to all those who participated in the robbery, including those without arms. The provision punishes more severely the robbery in a house used as a dwelling than that committed in an uninhabited place, because of the possibility that the inhabitants in the former might suffer bodily harm during the robbery.

“Public building” – every building owned by the Government or belonging to a private person but used or rented by the Government, although temporarily unoccupied by the same. “Dependencies” – all interior courts, corrals, warehouses, granaries or inclosed places contiguous to the building or edifice, having an interior entrance connected therewith, and which form part of the whole (Art. 301, par. 2). Requisites: 1. Contiguous to the building; 2. Interior entrance connected therewith; 3. Form part of the whole. Orchards and lands used for cultivation or production are not included in the term “dependencies” (Art. 301, par. 3).

h. Article 300 – Robbery in an Uninhabited Place and by a Band

j. Article 302 – Robbery In an Uninhabited Place or Private Building

Robbery in an inhabited house, public building or edifice dedicated to religious worship is qualified when committed by a band and located in an uninhabited place.

Elements: 1. Offender entered an uninhabited place or a building which was not a dwelling house, not a public building, or not an edifice devoted to religious worship. 2. That any of the following circumstances was present: a. Entrance was effected through an opening not intended for entrance or egress; b. A wall, roof, floor, or outside door or window was broken c. Entrance was effected through the use of false keys, picklocks or other similar tools; d. A door, wardrobe, chest, or any sealed or closed furniture or receptacle was broken; or e. A closed or sealed receptacle was removed, even if the same be broken open elsewhere. f. With intent to gain, the offender took therefrom personal property belonging to another.

See discussion on Art. 296 for definition of “band.” To qualify Robbery w/ force upon things (Art 299) It must be committed in uninhabited place and by a band (Art 300)

To qualify Robbery w/ violence against or intimidation of persons It must be committed in an uninhabited place or by a band (Art. 295)

i. Article 301 - What is an inhabited House, Public Building Dedicated to Religious Worship and Their Dependencies “Inhabited house” – any shelter, ship, or vessel constituting the dwelling of one or more persons even though the inhabitants thereof are temporarily absent when the robbery is committed.

“Building” – includes any kind of structure used for storage or safekeeping of personal property, such as (a) freight car and (b) warehouse.

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Entrance through an opening not intended for entrance or egress is not necessary, if there is breaking of wardrobe, chest, or sealed or closed furniture or receptacle, or removal thereof to be broken open elsewhere.

2. 3.

Genuine keys stolen from the owner; Any key other than those intended by the owner for use in the lock forcibly opened by the offender.

2. Chapter II: Brigandage

Breaking padlock is use of force upon things. Use of fictitious name or pretending the exercise of public authority is not covered under this article. A receptacle is a container, which must be “closed” or “sealed”. Penalty is based only on value of property taken.

k. Article 303 - Robbery of Cereals, Fruits or Firewood in an Uninhabited Place or Private Building In cases enumerated in Arts. 299 and 302, the penalty is one degree lower when robbery consists in the taking of cereals, fruits, or firewood. Cereals – seedlings which are the immediate product of the soil. The palay must be kept by the owner as “seedling” or taken for that purpose by the robbers.

l. Article 304 - Possession of Picklock or Similar Tools Elements: 1. Offender has in his possession picklocks or similar tools; 2. Such picklock or similar tools are especially adopted to the commission of robbery; 3. Offender does not have lawful cause for such possession. Possession of such tools, without lawful cause, is punished. Actual use is not necessary. Since picking of locks is one way to gain entrance to commit robbery, a picklock is per se specially adapted to the commission of robbery. [People v Lopez, G.R. No. L18766 (1965)]

a. Article 306 - Who Are Brigands Elements of Brigandage: 1. There be at least 4 armed persons 2. They formed a band of robbers 3. The purpose is any of the following: a. To commit robbery in the highway; or b. To kidnap for the purpose of extortion or to obtain ransom; or c. To attain by means of force and violence any other purpose. Presumption of law as to brigandage: All are presumed highway robbers or brigands, if any of them carries unlicensed firearm. The arms carried may be any deadly weapon. The main object of the law is to prevent the formation of band of robbers. The term “highway” includes city streets. The following must be proved: 1. Organization of more than 3 armed persons forming a band of robbers 2. Purpose of the band is any of those enumerated in Art. 306. 3. That they went upon the highway or roamed upon the country for that purpose. 4. That the accused is a member of such band. Brigandage Purpose

If the person who makes such tools is a locksmith, the penalty is higher.

m. Article 305 - False Keys

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Proof

Deemed to include the following: 1. Tools mentioned in Article 304; Page 267 of 309

Commit robbery in a highway 2. Kidnap to extort or get ransom 3. Any other purpose to be achieved by means of force or violence Mere formation of a band for any of the above purposes is

Robbery in Band

1.

Commit robbery, and not necessarily in a highway

It is necessary to prove that the band

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sufficient. There is no requirement that the brigands consummate the crime.

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actually committed the robbery. Conspiracy to commit robbery is not punishable.

b. Article 307 - Aiding and Abetting a Band of Brigands Elements: 1. There is a band of brigands 2. Offender knows the band to be of brigands 3. Offender does any of the following acts: a. He in any manner aids, abets or protects such band of brigands; or b. He gives them information of the movements of the police or other peace officers; or c. He acquires or receives the property taken by such brigands. It is presumed that the person performing any of the acts provided in this article has performed them knowingly, unless the contrary is proven. Any person who aids or protects highway robbers or abets the commission of highway robbery or brigandage shall be considered as an accomplice.

4.

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Those who enter an inclosed estate or field where trespass is forbidden or which belongs to another and, without the consent of its owner, hunt or fish upon the same or gather fruits, cereals, or other forest or farm products.

The theft is consummated & taking completed once the culprit is able to place the thing taken under his control, and in such a situation that he could dispose of it at once. In accordance with the definition in Art 308, there is no frustrated theft. The offender has either complete control of the property (consummated) or without (attempted). Intent to gain is presumed from the unlawful taking of personal property belonging to another. [Valenzuela v. People, G.R. No. 160188 (2007)] If a person takes property of another, believing it to be his own, presumption of intent to gain is rebutted. Hence, he is not guilty of theft. If one takes personal property openly and avowedly under claim of title made in good faith, he is not guilty of theft even though claim of ownership is later found to be untenable. If possession was only material or physical, the crime is THEFT. If possession was juridical, crime is ESTAFA.

3. Chapter III: Theft

Selling share of a partner or co-owner is not theft. Actual or real gain is not necessary in theft.

a. Article 308 - Who Are Liable for Theft

The consent contemplated in this article refers to consent freely given, and not mere lack of opposition by owner of the property taken.

Elements: 1. Taking of personal property 2. Personal property belongs to another 3. Taking was done with intent to gain. 4. Taking was without the consent of the owner. 5. Accomplished without the use of violence against or intimidation of persons or force upon things.

It is not robbery when violence is for a reason entirely foreign to the fact of taking.

Persons liable: 1. Those who, with intent to gain, without violence against or intimidation of persons nor force upon things, take personal property, of another without the latter’s consent. 2. Those who, having found lost property, fail to deliver the same to the local authorities or to its owner. 3. Those who, after having maliciously damaged the property of another, remove or make use of the fruits or object of the damage caused by them.

Gulinao shot Dr. Chua and left. Then he went back & took Dr. Chua’s diamond ring. The crime was Theft and not robbery. Circumstances show that the taking was merely an afterthought. Violence used in killing Dr. Chua had no bearing on the taking of the ring. [People v. Gulinao, G.R. Nos. 82264-66 (1989)] Properties were taken after accused has already carried out his primary criminal intent of killing the victim. Considering that the victim was already heavily wounded when his properties were taken, there was no need to employ violence against or intimidation upon his person. Hence, accused can only be held guilty of the separate offense of theft. [People v. Basao, G.R. No. 128286 (1999)]

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One in possession of part of recently stolen property is presumed to be thief of all.

b. Article 309 – Penalties

“Lost property” – embraces loss by stealing or by act of the owner or by a person other than the owner, or through some casual occurrence.

The basis of the penalty in theft is 1. the value of the thing stolen, or 2. the value and nature of the property taken, or 3. the circumstances that impelled the culprit to commit the crime.

It is necessary to prove the following in order to establish theft by failure to deliver or return lost property: 1. Time of the seizure of the thing 2. It was a lost property belonging to another; and 3. That the accused having had the opportunity to return or deliver the lost property to its owner or to the local authorities, refrained from doing so. The law does not require knowledge of the owner of the property. Elements of hunting, fishing or gathering fruits, etc., in enclosed estate: 1. That there is an enclosed estate or a field, where trespass is forbidden or which belongs to another 2. Offender enters the same 3. Offender hunts or fishes upon the same or gathers fruits, cereals or other forest or farm products in the estate or field; and 4. That the hunting or fishing or gathering of products is without the consent of the owner.

Corpus Delicti

To be caught in possession of the stolen property is not an element of the corpus delicti in theft. Corpus delicti means the “body or substance of the crime, and, in its primary sense, refers to the fact that the crime has been actually committed.” In theft, corpus delicti has two elements, namely: 1. that the property was lost by the owner, and 2. that it was lost by felonious taking. [Gan v. People, G.R. No. 165884 (2007)] Whether snatching is robbery or theft It depends on whether the offender employed violence or intimidation upon persons, or force upon things. Acampado (the victim) herself merely testified that Concepcion (the accused) snatched her shoulder bag which was hanging on her left shoulder. Acampado did not say that Concepcion used violence, intimidation or force in snatching her shoulder bag. Given the facts, Concepcion’s snatching of Acampado’s shoulder bag constitutes the crime of theft, not robbery. [People v. Concepcion, G.R. No. 200922 (2012)]

If there is no evidence of the value of the property stolen, the court should impose the minimum penalty corresponding to theft involving the value of P5.00. The court may also take judicial notice of its value in the proper cases.

c. Article 310 - Qualified Theft Theft is qualified if: 1. Committed by a domestic servant 2. Committed with grave abuse of confidence 3. The property stolen is a. motor vehicle b. mail matter, or c. large cattle 4. The property stolen consists of coconuts taken from the premises of a plantation 5. The property stolen is fish taken from a fishpond or fishery 6. The property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance. The penalty for qualified theft is 2 degrees higher. Theft by domestic servant is always qualified. There is no need to prove grave abuse of confidence. The abuse of confidence must be grave. There must be allegation in the information and proof of a relation, by reason of dependence, guardianship or vigilance, between the accused and the offended party that has created a high degree of confidence between them, which the accused abused. Theft of any material, spare part, product or article by employees and laborers is heavily punished under PD 133. “Motor vehicle” - all vehicles propelled by power, other than muscular power. Theft of motor vehicle may now fall under the Anti-Carnapping law. When the purpose of taking the car is to destroy it by burning it, the crime is arson.

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If a private individual took a letter containing postal money order, it is qualified theft. If it was the postmaster, to whom the letter was delivered, the crime would be infidelity in the custody of documents. Regarding the theft of coconuts and fish, what matters is not the execution, but the location where it is taken. It should be in the plantation or in the fishpond. PD 1612: Anti-Fencing Law Fencing – The act of any person who, with intent to gain for himself or for another, shall buy, receive, keep, acquire, conceal, sell, or dispose of, or shall buy and sell or in any other manner deal in any article, item, object, or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft. Elements: 1. Robbery or theft has been committed. 2. The accused, who is not a principal or accomplice in the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object, or anything of value, which has been derived from the proceeds of the said crime. 3. The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft. 4. There is, on the part of the accused, intent to gain for himself or another. Mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing. [People v. Dizon-Pamintuan, G.R. No. 111426 (1994)] Robbery/theft and fencing are separate and distinct offenses. "Fence" – includes any person, firm, association, corporation or partnership or other organization who/which commits the act of fencing. Presumption of Fencing Mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing. Exception: With Clearance or Permit to Sell

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Section 6. Clearance/Permit to Sell/Used Second Hand Articles. For purposes of this Act,

all stores, establishments or entities dealing in the buy and sell of any good, article, item, object or anything of value obtained from an unlicensed dealer or supplier thereof, shall before offering the same for sale to the public, secure the necessary clearance or permit from the station commander of the Integrated National Police in the town or city where such store, establishment or entity is located. The Chief of Constabulary/Director General, Integrated National Police shall promulgate such rules and regulations to carry out the provisions of this section. Any person who fails to secure the clearance or permit required by this section or who violates any of the provisions of the rules and regulations promulgated thereunder shall upon conviction be punished as a fence. RA 10883: NEW ANTI-CARNAPPING ACT OF 2016 Clearance and Permit

Section 12. Clearance and Permit Required for Assembly or Rebuilding of Motor Vehicles. –

Any person who shall undertake to assemble or rebuild or cause the assembly or rebuilding of a motor vehicle shall first secure a certificate of clearance from the PNP: Provided, That no such permit shall be issued unless the applicant shall present a statement under oath containing the type, make and serial numbers of the engine, chassis and body, if any, and the complete list of the spare parts of the motor vehicle to be assembled or rebuilt together with the names and addresses of the sources thereof. In the case of motor vehicle engines to be mounted on motor boats, motor bancas, water crafts and other light water vessels, the applicant shall secure a permit from the PNP, which office shall in turn furnish the LTO pertinent data concerning the motor vehicle engines including their type, make and serial numbers.

Section 13. Clearance Required for Shipment of Motor Vehicles, Motor Vehicle Engines, Engine Blocks, Chassis or Body. The Philippine Ports Authority (PPA) shall submit a report to the PNP within seven (7) days upon boarding all motor vehicles being boarded the “RORO”, ferry, boat, vessel or ship for interisland and international shipment. The PPA shall not allow the loading of motor vehicles in all interisland and international shipping vessels without a motor vehicle clearance from the PNP,

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except cargo trucks and other trucks carrying goods. Land Transportation Franchising and Regulatory Board (LTFRB)-accredited public utility vehicles (PUV) and other motor vehicles carrying foodstuff and dry goods. Definition of terms/Punishable Acts Carnapping – is the is the taking, with intent to gain, of a motor vehicle belonging to another without the latter’s consent, or by means of violence against or intimidation of persons, or by using force upon things. 1. Any person who is found guilty of carnapping shall, regardless of the value of the motor vehicle taken, be punished by imprisonment for not less than twenty (20) years and one (1) day but not more than thirty (30) years, when the carnapping is committed without violence against or intimidation of persons, or force upon things; and by imprisonment for not less than thirty (30) years and one (1) day but not more than forty (40) years, when the carnapping is committed by means of violence against or intimidation of persons, or force upon things; and the penalty of life imprisonment shall be imposed when the owner, driver, or occupant of the carnapped motor vehicle is killed or raped in the commission of the carnapping. 2. Any person charged with carnapping or when the crime of carnapping is committed by criminal groups, gangs or syndicates or by means of violence or intimidation of any person or persons or forced upon things; or when the owner, driver, passenger or occupant of the carnapped vehicle is killed or raped in the course of the carnapping shall be denied bail when the evidence of guilt is strong. [Sec. 3 RA 10883] Motor vehicle –is any vehicle propelled by any power other than muscular power using the public highways, except road rollers, trolley cars, street sweepers, sprinklers, lawn mowers, bulldozers, graders, forklifts, amphibian trucks, and cranes if not used on public highways; vehicles which run only on rails or tracks; and tractors, trailers and traction engines of all kinds used exclusively for agricultural purposes. Trailers having any number of wheels, when propelled or intended to be propelled by attachment to a motor vehicle, shall be classified as a separate motor vehicle with no power rating; [Sec. 2 (e) RA 10883] Defacing or tampering with a serial number – is the altering, changing, erasing, replacing or scratching of the original factory inscribed serial number on the

CRIMINAL LAW

motor vehicle engine, engine block or chassis of any motor vehicle. Whenever any motor vehicle is found to have a serial number on its engine, engine block or chassis which is different from that which is listed in the records of the Bureau of Customs for motor vehicle imported into the Philippines, that motor vehicle shall be considered to have a defaced or tampered serial number. [Sec 2(b) RA 10883]

Section 4. Concealment of Carnapping. – Any person who conceals carnapping shall be punished with imprisonment of six (6) years up to twelve (12) years and a fine equal to the amount of the acquisition cost of the motor vehicle, motor vehicle engine, or any other part involved in the violation: Provided, That if the person violating any provision of this Act is a juridical person, the penalty herein provided shall be imposed on its president, secretary, and/or members of the board of directors or any of its officers and employees who may have directly participated in the violation.

Any public official or employee who directly commits the unlawful acts defined in this Act or is guilty of gross negligence of duty or connives with or permits the commission of any of the said unlawful acts shall, in addition to the penalty prescribed in the preceding paragraph, be dismissed from the service, and his/her benefits forfeited and shall be permanently disqualified from holding public office.

d. Article 311 - Theft of the Property of the National Library and National Museum Theft of property of the National Museum and National Library has a fixed penalty (arresto mayor of fine of P200-500 or both) regardless of the property's value. But if it was with grave abuse of confidence, the penalty for qualified theft shall be imposed.

4. Chapter IV: Usurpation a. Article 312 - Occupation of Real Property or Usurpation of Real Rights in Property Acts punishable under Art. 312: 1. Taking possession of any real property belonging to another by means of violence against or intimidation of persons

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2.

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Usurping any real rights in property belonging to another by means of violence against or intimidation of persons.

Elements: 1. Offender takes possession of any real property OR usurps any real rights in property 2. Real property or real rights belong to another 3. Violence against or intimidation of persons is used by the offender in occupying real property or usurping real rights in property. 4. There is intent to gain.

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5. Chapter V: Culpable

Insolvency

a. Art. 314 - Fraudulent Insolvency Elements: 1. The offender is a debtor, and he has obligations due and payable 2. He absconds with his property 3. There is prejudice to his creditors

If no violence or intimidation only civil liability exists. Violence or intimidation must be the means used in occupying real property or in usurping real rights.

Actual prejudice, not intention alone, is required. Even if the debtor disposes of his property, unless it is shown that it has actually prejudiced his creditor, conviction will not lie.

Art. 312 does not apply when the violence or intimidation took place subsequent to the entry into the property.

Fraudulent concealment of property is not sufficient if the debtor has some property with which to satisfy his obligation.

Art. 312 does not apply to a case of open defiance of the writ of execution issued in the forcible entry case.

“Abscond” – does not require that the debtor should depart and physically conceal his property. Real property could be the subject matter of Art. 314.

Criminal action for usurpation of real property is not a bar to civil action for forcible entry. RA 947 punishes entering or occupying public agricultural land including lands granted to private individuals. Usurpation Act What is Taken Intent

Occupation or Usurpation Real property or real right To gain

Theft or Robbery Taking or asportation Personal property To gain

b. Article 313 - Altering Boundaries or Landmarks Elements: 1. There are boundary marks or monuments of towns, provinces, or estates, or any other marks intended to designate the boundaries of the same. 2. The offender alters said boundary marks. Provision does not require intent to gain. The word “alter” may include: 1. destruction of stone monument 2. taking it to another place 3. removing a fence

The person prejudiced must be creditor of the offender. Art. 314 Insolvency Law No need for insolvency Crime should be proceedings. committed after the institution of No need to be adjudged insolvency proceedings bankrupt or insolvent

6. Chapter VI: Swindling and

Other Deceits

a. Article 315 - Estafa Elements of Estafa in General: 1. The accused defrauded another a. by abuse of confidence; or b. by means of deceit; and 2. The damage or prejudice capable of pecuniary estimation is caused to the offended party or third person. WITH UNFAITHFULNESS OR ABUSE OF CONFIDENCE (315 PAR. 1(A) (B) (C))

Par 1(a): Altering substance, quantity or quality of object subject of obligation to deliver

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Elements of estafa with unfaithfulness 1. Offender has an onerous obligation to deliver something of value. 2. He alters its substance, quantity, or quality 3. Damage or prejudice is caused to another Deceit is NOT an essential element of estafa with abuse of confidence. Damage or prejudice must be capable of estimation, because it is the basis of the penalty. Delivery of anything of value must be “by virtue of an onerous obligation to do so”. It is not estafa if the thing delivered is not acceptable to the complainant when there is no agreement as to its quality. Estafa may arise even if thing delivered is not subject of lawful commerce, such as opium.

Par.1(b): Misappropriation and Conversion Elements of estafa with abuse of confidence 1. Money, goods, or other personal property is received by the offender in trust, or in commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return, the same; 2. There is misappropriation or conversion of such money or property by the offender, or denial on his part of such receipt; 3. Such misappropriation or conversion or denial is to the prejudice of another; and 4. There is a demand made by the offended party to the offender

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“Juridical possession” – means a possession which gives the transferee a right over the thing which he may invoke even as against the owner. When the delivery of a chattel does not transfer juridical possession/title, it is presumed that the possession/title of the thing remain w/ owner. Failure to turn over to the bank the proceeds of sale of goods covered by trust receipts is estafa. The phrase “or under any obligation involving the duty to make delivery of, or to return the same”, includes quasi-contracts and certain contracts of bailment. The obligation to return the thing must be contractual but without transferring to accused ownership of the thing. When ownership is transferred to recipient, his failure to return it results in civil liability only. Distinction between material or physical possession and juridical possession. (Paramount Insurance Corp. v. Sps. Remonduelaz, 686 SCRA 567) Applicable Civil Code provisions: 1. Art. 1477. The ownership of the thing sold shall be transferred to the vendee upon actual or constructive delivery thereof. 2. Art. 1482. Whenever earnest money is given in a contract of sale, it shall be considered as part of the price and as proof of the perfection of the contract. In estafa with abuse of confidence under par. (b), subdivision 1 of Art. 315, the thing received must be returned if there is an obligation to return it. If no obligation to return there is only civil liability.

The 4th element is not necessary when there is evidence of misappropriation of goods by the defendant.

No estafa when:

Check is included in the word “money”.

2.

Money, goods or other personal property must be received by the offender under certain kinds of transaction transferring juridical possession to him.

3.

The offender acquires both physical possession and juridical possession when the thing is received by the offender from the offended party 1. in trust, or 2. on commission, or 3. for administration,

1.

Transaction sale fails. There is no estafa if the accused refused to return the advance payment. The money or personal property received by accused is not to be used for a particular purpose or to be returned. Thing received under a contract of sale on credit

Payment by students to the school for the value of materials broken is not mere deposit. Novation of contract of agency to one of sale, or to one of loan, relieves defendant from incipient criminal liability under the first contract. He exerted all efforts to retrieve dump truck, albeit belatedly and to no avail. His ineptitude should not be

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confused with criminal intent. Criminal intent is required for the conviction of estafa. Earnest effort to comply with obligation is a defense against estafa. [Manahan, Jr. v. CA, G.R. No. 111656 (1996)] 3 Ways of Committing Estafa With Abuse Of Confidence Under Art. 315 Par. (B): 1. Misappropriating the thing received. 2. Converting the thing received. 3. Denying that the thing was received. “Misappropriating” – means to own, to take something for one's own benefit.

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A co-owner is not liable for estafa, but he is liable if, after the termination of the co-ownership, he misappropriates the thing which has become the exclusive property of the other. Estafa with abuse of confidence With juridical possession of thing misappropriated Offender receives the thing from the victim

Theft Only with physical / material possession of thing misappropriated Offender takes the thing

“Converting” – Using or disposing of another’s property as if it were one’s own.

But when the money or property had been received by a partner for specific purpose and he misappropriated it, there is estafa.

“Conversion” – presupposes that the thing has been devoted to a purpose or use different from that agreed upon.

Under the 4th element of estafa with abuse of confidence demand may be required.

The fact that an agent sold the thing received on commission for a lower price than the one fixed, does not constitute estafa [US v. Torres, 11 Phil. Rep. 606].

In estafa by means of deceit, demand is not needed, because the offender obtains the thing wrongfully from the start. In estafa with abuse of confidence, the offender receives the thing under a lawful transaction.

The law does not distinguish between temporary and permanent misappropriations. No estafa under Art. 315 par (b) when there is neither misappropriation nor conversion. Right of agent to deduct commission from amounts 1. If agent is authorized to retain his commission out of the amounts he collected, there is no estafa. 2. Otherwise he is guilty of estafa, because his right to commission does not make the agent a coowner of money 3rd element of estafa with abuse of confidence is that the conversion, or denial by offender resulted in the prejudice of the offended party. “To the prejudice of another” – not necessarily of the owner of the property. General rule: Partners are not liable for estafa of money or property received for the partnership when the business commenced and profits accrued. Failure of partner to account for partnership funds may give rise to civil obligation only, not estafa. Exception: When a partner misappropriates the share of another partner in the profits, the act constitutes estafa.

Demand is not required by law, but it may be necessary, because failure to account upon demand is circumstantial evidence of misappropriation. Presumption arises only when the explanation of the accused is absolutely devoid of merit. The mere failure to return the thing received for safekeeping or under any other obligation w/ the duty to return the same or deliver the value thereof to the owner could only give rise to a civil action and does not constitute the crime of estafa. There is no estafa through negligence. The gravity of the crime of estafa is based on the amount not returned before the institution of the criminal action. Test to distinguish theft from estafa: In theft, upon the delivery of the thing to the offender, the owner expects a return of the thing to him. General rule: When the owner does not expect the immediate return of the thing he delivered to the accused, the misappropriation of the same is estafa. Exception: When the offender received the thing from the offended party, with the obligation to deliver it to a third person and, instead of doing so,

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misappropriated it to the prejudice of the owner, the crime committed is qualified theft. Sale of thing received to be pledged for owner is theft, when the intent to appropriate existed at the time it was received. Estafa with abuse of Malversation confidence Entrusted with funds or property Both are continuing offenses Funds or property are always private Offender is a private Offender is a public individual or public officer accountable for officer not accountable public funds or for public funds or property property Committed by Committed by misappropriating, misappropriating, or converting or denying thru abandonment or having received money, negligence, letting other other personal property person to take the public funds or property There is no estafa There can be through negligence. malversation through abandonment or negligence. When in prosecution for malversation the public officer is acquitted, the private individual in conspiracy w/ him may be held liable for estafa, depending on the nature of the funds. Misappropriation of firearms received by a police 1. ESTAFA: if it is not involved in the commission of a crime 2. MALVERSATION: if it is involved in the commission of a crime. ESTAFA THROUGH OTHER FRAUDULENT MEANS (315 PAR 3 (A) (B) (C))

Par 3 (a): By inducing another, through deceit, to sign any document Elements: 1. Offender induced the offended party to sign a document. 2. Deceit was employed to make offended party sign the document. 3. Offended party personally signed the document. 4. Prejudice was caused.

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Offender must induce the offended party to sign the document. If offended party is willing from the start to sign the document, because the contents are different from those which the offended told the accused to state in the document, the crime is falsification. There can be no conviction for estafa in the absence of proof that defendant made statements tending to mislead complainant.

Par.3 (b): By resorting to some fraudulent practice to ensure success in a gambling game Par.3 (c): By removing, concealing or destroying any court record, office files, document or any other papers Elements: 1. There are court record, office files, documents or any other papers. 2. The offender removed, concealed or destroyed any of them. 3. The offender had Intent to defraud another. If there is no malicious intent to defraud, the destruction of court record is malicious mischief. Elements of deceit and abuse of confidence may coexist. If there is neither deceit nor abuse of confidence, it is not estafa, even if there is damage. There is only civil liability. Deceit through Fraudulent Means Offender is a private person OR a public person not entrusted w/ documents There is intent to defraud

Infidelity in Custody of Documents Offender is a public person entrusted with the documents Intent to defraud is not required

The element of damage or prejudice capable of pecuniary estimation may consist in: 1. The offended party being deprived of his money or property, as result of the fraud; 2. Disturbance in property right; or 3. Temporary prejudice Payment subsequent to the commission of estafa does not extinguish criminal liability or reduce the penalty.

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The crime of estafa is not obliterated by acceptance of promissory note.

3.

A private person who procures a loan by means of deceit through a falsified public document of mortgage, but paid loan within the period agreed upon, is not guilty of estafa but only falsification of a public document.

4.

Accused cannot be convicted of estafa with abuse of confidence if charged w/ estafa by means of deceit P.D. 115 TRUST RECEIPTS LAW Trust receipt A trust receipt transaction is one where the entrustee has the obligation to deliver to the entrustor the price of the sale, or if the merchandise is not sold, to return the merchandise to the entruster. There are, therefore, two obligations in a trust receipt transaction: the first refers to money received under the obligation involving the duty to turn it over (entregarla) to the owner of the merchandise sold, while the second refers to the merchandise received under the obligation to “return” it (devolvera) to the owner. A violation of any of these undertakings constitutes Estafa defined under Art. 315, par. 1(b) of the RPC, as provided in Sec. 13 of PD 115. [Yang v. People, G.R. No. 195117 (2013)] Loan not a trust receipt transaction Nonetheless, when both parties enter into an agreement knowing fully well that the return of the goods subject of the trust receipt is not possible even without any fault on the part of the trustee, it is not a trust receipt transaction as the only obligation actually agreed upon by the parties would be the return of the proceeds of the sale transaction. This transaction becomes a mere loan. [Yang v. People, supra.] Who is liable If the violation or offense is committed by a corporation, partnership, association or other juridical entities, the penalty provided for in this Decree shall be imposed upon the directors, officers, employees or other officials or persons therein responsible for the offense, without prejudice to the civil liabilities arising from the criminal offense.[Sec 13 PD 115]

Par.1(c): Taking advantage of signature in blank Elements: 1. Paper with the signature of the offended party is in blank. 2. Offended party delivered it to the offender.

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Above the signature of the offended party a document is written by the offender without authority to do so. The document so written creates a liability of, or causes damage to, the offended party or any third person.

ESTAFA BY MEANS OF FALSE PRETENSES OR FRAUDULENT ACTS (315 PAR. 2(A) (B) (C) (D) (E); BP22): Elements of estafa by means of deceit: 1. There is a false pretense, fraudulent act or fraudulent means. 2. Such false pretense, fraudulent act or fraudulent means was made or executed prior to or simultaneously with the commission of the fraud. 3. Offended party relied on the false pretense, fraudulent act, or fraudulent means, that is, he was induced to part with his money or property because of such 4. As a result thereof, the offended party suffered damage. The acts must be fraudulent. Acts must be founded on deceit, trick, or cheat, and such must be made prior to or simultaneously with the commission of the fraud. In false pretenses the deceit consists in the use of deceitful words, in fraudulent acts the deceit consists principally in deceitful acts. The fraudulent acts must be performed prior to or simultaneously with the commission of the fraud. The offender must be able to obtain something from the offended party because of the fraudulent acts. Knowledge of criminal intent of the principal is essential to be convicted as an accomplice in estafa through falsification of commercial document. There must be knowing assistance in the execution of the offense. [Abejuela v. People, G.R. No. 80130 (1991)] In a tenant-landowner relationship, it was incumbent upon the tenant to hold in trust and, eventually, account for the share in the harvest appertaining to the landowner, failing which the tenant could be held liable for misappropriation. In People v. Vanzuela [G.R. No. 178266 (2008)], it was ruled that share tenancy has been outlawed for being contrary to public policy as early as 1963, with the passage of R.A. 3844. What prevails today, under R.A. 6657, is agricultural leasehold tenancy relationship, and all instances of share tenancy have been automatically converted into leasehold tenancy. In

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such a relationship, the tenant’s obligation is simply to pay rentals, not to deliver the landowner’s share. Given this dispensation, the petitioner’s allegation that the respondents misappropriated the landowner’s share of the harvest is untenable. Accordingly, the respondents cannot be held liable under Article 315, paragraph 4, No. 1(b) of the RPC.

Par 2(b): by altering the quality, fineness or weight of anything pertaining to art or business

It is well established in jurisprudence that a person may be convicted of both illegal recruitment and estafa. The reason, therefore, is not hard to discern: illegal recruitment is malum prohibitum, while estafa is malum in se. [Lapasaran v. People, G.R. No. 179907 (2009)]

Person would ask money from another for the alleged purpose of bribing a government employee but just pocketed the money.

Par 2(a): Using fictitious name or false pretenses at power, influence… or other similar deceits

Elements: 1. Offender postdated a check, or issued a check in payment of an obligation; 2. Such postdating or issuing a check was done when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check.

Ways of committing the offense: 1. By using fictitious name; 2. By falsely pretending to possess: a. power, b. influence, c. qualifications, d. property, e. credit, f. agency, g. business or imaginary transactions; 3. By means of other similar deceits.

Par. 2(c): by pretending to have bribed any government employee Manipulation of scale is punished under the Revised Administrative Code.

Par 2(d): By postdating a check or issuing a bouncing check

The check must be genuine, and not falsified. The check must be postdated or for an obligation contracted at the time of the issuance and delivery of the check and not for pre-existing obligation.

For estafa under Art. 315 par. 2(a), it is indispensable that the false statement or fraudulent representation of the accused, 1. be made prior to, or, at least simultaneously with, 2. the delivery of the thing by the complainant. It is essential that such false statement or fraudulent representation constitutes the cause or only motive which induced the complainant to part with the thing. If there be no such prior or simultaneous false statement or fraudulent representation, any subsequent act of the accused, however fraudulent and suspicious it may appear, cannot serve as a basis for prosecution for this class of estafa. A creditor who deceived his debtor is liable for estafa. In estafa by means of deceit under Art. 315 2(a), there must be evidence that the pretense of the accused is false. Without such proof, criminal intent to deceive cannot be inferred. Fraud must be proved with clear and positive evidence. Estafa through false pretenses made in writing is only a simple crime of estafa, not a complex crime of estafa through falsification.

Exception: 1. When postdated checks are issued and intended by the parties only as promissory notes 2. When the check is issued by a guarantor The accused must be able to obtain something from the offended party by means of the check he issues and delivers. The mere fact that the drawer had insufficient or no funds in the bank to cover the check at the time he postdated or issued a check is sufficient to make him liable for estafa. RA 4885 deleted the phrase “the offender knowing at the time he had no funds in the bank”: 1. The failure of the drawer to deposit the amount needed to cover his check 2. Within 3 days from receipt of notice of dishonor of check for lack or insufficiency of funds 3. Shall be prima facie evidence of deceit constituting false pretense or fraudulent act. Good faith is a defense in a charge of estafa by postdating or issuing a check. One who got hold of a check issued by another, knowing that the drawer had no sufficient funds in the bank, and used the same in

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the purchase of goods, is guilty of estafa. [People v. Isleta, G.R. No. L-41873 (1935)] PD 818, which increases the penalty for estafa committed by means of bouncing checks, applies only to estafa under par 2(d) of Art. 315, and does not apply to other forms of estafa. [People v Villaraza, G.R. No. L-426228 (1978)] Hence, the penalty prescribed in PD 818, not the penalty provided for in Art. 315, should be imposed when the estafa committed is covered by par 2(d) of Art. 315. Estafa by issuing a bad check is a continuing crime. B.P. BLG. 22 BOUNCING CHECKS LAW Sec. 1, Par. 1 Elements 1. Making, drawing, and issuance of any check to apply for account or for value 2. Knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment; and 3. Subsequent dishonor of the check by the drawee bank for insufficiency of funds or creditor dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment. [Campos v. People, G.R. No. 187401(2014)] Sec. 1, Par. 2 Elements 1. Making or drawing and issuing a check having sufficient funds in or credit with the drawee bank 2. Failure to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon 3. Check is dishonored by the drawee bank. Evidence of knowledge of insufficient funds General rule: The making, drawing and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit. Exception: Unless maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within (5) banking days after receiving notice that such check has not been paid by the drawee.[Sec 2 B.P. Blg. 22]

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Distinguished from Estafa under Art. 315 2(d) B.P. Blg. 22 Art. 315, par. 2 (d) Deceit and damage are Deceit and damage are not essential elements required Mere issuance of a check that is dishonored gives rise to the presumption of knowledge on the part No such presumption of the drawer that he issued the same without sufficient funds and hence punishable Drawer of a dishonored check may be convicted Such circumstance even if he had issued the negate criminal liability same for a pre-existing obligation Crime against public interest as it does injury Crime against property to the entire banking system Mala in se [Nierras v. Mala prohibita Dacuycuy, G.R. Nos. L59568-76(1990)] Preference of imposition of fine The Judges concerned may, in the exercise of sound discretion, and taking into consideration the peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve the interests of justice or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice. [A.C. NO. 13-2001 clarifying A.C. NO. 12-2000] Notice of dishonor While, indeed, Section 2 of B.P. Blg. 22 does not state that the notice of dishonor be in writing, taken in conjunction, however, with Section 3 of the law, i.e., "that where there are no sufficient funds in or credit with such drawee bank, such fact shall always be explicitly stated in the notice of dishonor or refusal,” a mere oral notice or demand to pay would appear to be insufficient for conviction under the law. The Court is convinced that both the spirit and letter of the Bouncing Checks Law would require for the act to be punished thereunder not only that the accused issued a check that is dishonored, but that likewise the accused has actually been notified in writing of the fact of dishonor. [Cabrera v. CA, G.R. No. 150618 (2003)] Double jeopardy does not apply because estafa in RPC is a distinct crime from BP 22. Deceit and

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damage are essential elements of RPC, which are not required in BP 22. [Nierras vs Dacuycuy , supra.]

b. Article 316 - Other Forms of Swindling and Deceits Par 1. By conveying, selling, encumbering, or mortgaging any real property, pretending to be the owner of the same

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The offended party would not have granted the loan had he known that the property was already encumbered. When the loan had already been granted when defendant offered the property as security for the loan, Art. 316 par. 2 is not applicable. Usurious loan with equitable mortgage is not an encumbrance on the property. If 3rd element not established, there is no crime.

Elements: 1. The thing is immovable, such as a parcel of land or a building. 2. Offender who is not the owner of said property represents that he is the owner thereof. 3. Offender executed an act of ownership (selling, encumbering or mortgaging the real property). 4. The act was made to the prejudice of the owner or a third person.

There must be damage caused. It is not necessary that act prejudice the owner of the land.

The thing disposed of must be real property. If it is chattel, crime is Estafa.

Elements: 1. Offender is the owner of personal property. 2. Said property is in the lawful possession of another. 3. Offender wrongfully takes it from its lawful possessor. 4. Prejudice is thereby caused to the lawful possessor or third person.

There must be existing real property. Even if the deceit is practiced against the second purchaser but damage is incurred by the first purchaser, there is violation of par.1 of Art. 316. Since the penalty is based on the “value of the damage” there must be actual damage caused.

Par. 2. By disposing of real property as free from encumbrance, although such encumbrance be not recorded Elements: 1. The thing disposed of is real property. 2. Offender knew that the real property was encumbered, whether the encumbrance is recorded or not. 3. There was express representation by the offender that the real property is free from encumbrance. 4. Act of disposing of the real property was made to the damage of another. Act constituting the offense is disposing of the real property representing that it is free from encumbrance. “Dispose” – includes encumbering or mortgaging. “Encumbrance” – includes every right or interest in the land which exists in favor of third persons.

The omitted phrase “as free from encumbrance” in par 2 of Art. 316 is the basis of the ruling that silence as to such encumbrance does not involve a crime.

Par. 3. By wrongfully taking by the owner of his personal property from its lawful possessor

Offender must wrongfully take the personal property from the lawful possessor. Wrongfully take does not include the use of violence or intimidation. If the thing is taken by means of violence, without intent to gain, it is not estafa, but grave coercion. If the owner took the personal property from its lawful possessor without the latter’s knowledge and later charged him with the value of the property, the crime is theft. If there is intent to charge the bailee with its value, the crime is robbery. [US v Albao, G.R. No. L-9369 (1914)]

Par. 4. By executing any fictitious contract to the prejudice of another Elements: 1. Offender executes a contract 2. Contract is fictitious 3. Prejudice is caused.

Illustration: A person who simulates a conveyance of his property to another to defraud his creditors. If the conveyance is real and not simulated, the crime is fraudulent insolvency.

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Par. 5. By accepting any compensation for services not rendered or for labor not performed Elements: 1. Offender accepts any compensation for services or labor 2. He did not render any service or perform any labor There must be fraud. Otherwise, it will only be solutio indebiti, with civil obligation to return the wrong payment. If the money in payment of a debt was delivered to a wrong person, Art. 316 par 5 is not applicable.

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Penalty: Life imprisonment to death Large-scale Estafa 1. Estafa or other forms of swindling as defined by Art. 315 and 316 RPC was committed; 2. The swindling is NOT committed by a syndicate as defined above; 3. The defraudation results in the misappropriation of money contributed by stockholders, or members of rural banks, cooperative, “samahang nayon(s)”, or farmers association, or of funds solicited by corporations/associations from the general public; and 4. Amount of fraud exceeds Php. 100,000

In case the person who received it later refused or failed to return it to the owner of the money, Art. 315 subdivision 1(b) is applicable.

Penalty: Reclusion temporal to reclusion perpetua

Par. 6. By selling, mortgaging or encumbering real property or properties with which the offender guaranteed the fulfilment of his obligation as surety

Elements: 1. Offender takes advantage of the inexperience or emotions or feelings of a minor. 2. He induces such minor a. to Assume an obligation, or b. to Give release, or c. to Execute a transfer of any property right. 3. That the consideration is a. some loan of money, b. Credit, or c. Other personal property. 4. That the transaction is to the detriment of such minor.

Elements: 1. Offender is a surety in a bond given in a criminal or civil action. 2. He guaranteed the fulfillment of such obligation with his real property or properties. 3. He sells, mortgages, or, in any other manner encumbers said real property. 4. That such sale, mortgage, or encumbrance is a. Without express authority from the court, or b. Made before the cancellation of his bond, or c. Before being relieved from the obligation contracted by him. There must be damage caused under Art. 316. ESTAFA UNDER PD 1689: INCREASING THE PENALTY FOR CERTAIN FORMS OF SWINDLING OR ESTAFA Syndicated estafa 1. Estafa or other forms of swindling as defined by Art. 315 and 316 RPC was committed; 2. The swindling is committed by a syndicate consisting of five or more persons formed with the intention of carrying the unlawful or illegal act/transaction/enterprise/scheme; and 3. The defraudation results in the misappropriation of money contributed by stockholders, or members of rural banks, cooperative, “samahang nayon(s)”, or farmers association, or of funds solicited by corporations/associations from the general public.

c. Article 317 - Swindling of a Minor

Real property is not included because only money, credit and personal property are enumerated, and because a minor cannot convey real property without judicial authority.

d. Article 318 - Other Deceits Acts punished: 1. By defrauding or damaging another by any other deceit not mentioned in the preceding articles. 2. By interpreting dreams, by making forecasts, by telling fortunes, or by taking advantage of the credulity of the public in any other manner, for profit or gain. Any other kind of conceivable deceit may fall under this article. As in other cases of estafa, damage to the offended party is required. The deceits in this article include false pretenses and fraudulent acts.

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Chattel Mortgage The object of the Chattel Mortgage Law is to give the necessary sanction to the statute, so that mortgage debtors may be deterred from violating its provisions and mortgage creditors may be protected against loss or inconvenience from wrongful removal or sale of mortgaged property.

7. Chapter VII: Chattel

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No felonious intent if transfer of personal property is due to change of residence. If the mortgagee opted to file for collection, not foreclosure, abandoning the mortgage as basis for relief, the removal of property to another province is not a violation of Art 319 par1. In estafa, the property involved is real property. In sale of mortgaged property, it is personal property.

Mortgage

a. Article 319 - Removal, Sale, or Pledge of Mortgaged Property Acts punishable under Art. 319: 1. By knowingly removing any personal property mortgaged under the Chattel Mortgage Law to any province or city other than the one in which it was located at the time of execution of the mortgage, without the written consent of the mortgagee or his executors, administrators or assigns. 2. By selling or pledging personal property already pledged, or any part thereof, under the terms of the Chattel Mortgage Law, without the consent of the mortgagee written on the back of the mortgage and noted on the record thereof in the office of the register of deeds of the province where such property is located. Chattel mortgage must be valid and subsisting. If chattel mortgage does not contain an affidavit of good faith and is not registered, it is void and cannot be prosecuted under Art 319 Elements of knowingly removing mortgaged personal property: 1. Personal property is mortgaged under the Chatter Mortgage Law. 2. Offender knows that such property is so mortgaged. 3. He removes such mortgaged personal property to any province or city other than the one in which it was located at the time of the execution of the mortgage. 4. The removal is permanent. 5. There is no written consent of the mortgagee or his executors, administrators or assigns to such removal.

Elements of selling or pledging personal property already pledged: 1. Personal property is already pledged under the terms of the Chattel Mortgage Law. 2. The offender, who is the mortgagor of such property, sells or pledges the same or any part thereof. 3. There is no consent of the mortgagee written on the back of the mortgage and noted on the record thereof in the office of the register of deeds. The consent of the mortgagee must be 1. in writing, 2. on the back of the mortgage, and 3. noted on the record thereof in the office of the register of deeds. Damage is NOT essential. Chattel mortgage may give rise to estafa by means of deceit. Art. 319 Art. 316 (Estafa) In both, there is a selling of a mortgaged property Property involved is Personal property real property Committed by the mere Committed by selling failure to obtain real property mortgaged consent of the as free, even though the mortgagee in writing, vendor may have even if offender should obtained the consent of inform the purchaser the mortgagee in that the thing sold is writing mortgaged Purpose: to protect the Purpose: to protect the mortgagee purchaser

A person other than the mortgagor who removed the property to another province, knowing it to be mortgaged, may be liable. The removal of the mortgaged personal property must be coupled with intent to defraud. Page 281 of 309

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1.

8. Chapter VIII: Arson and

Other Crimes Involving Destruction

2.

a. Articles 320-326-B have been repealed by PD 1613 (Amending the Law on Arson) There are actually two categories of arson, namely: Destructive Arson under Article 320 of the RPC and Simple Arson under P.D. No. 1316. Said classification is based on the kind, character and location of the property burned, regardless of the value of the damage caused. Article 320 contemplates the malicious burning of structures, both public and private, hotels, buildings, edifices, trains, vessels, aircraft, factories and other military, government or commercial establishments by any person or group of persons. On the other hand, P.D. No. 1316 covers houses, dwellings, government buildings, farms, mills, plantations, railways, bus stations, airports, wharves and other industrial establishments. Simple Arson Any person who burns or sets fire to the property of another shall be punished by Prision Mayor. The same penalty shall be imposed when a person sets fire to his own property under circumstances which expose to danger the life or property of another.[Sec. 1 P.D. No. 1613] The penalty of Reclusion Temporal to Reclusion Perpetua shall be imposed if the property burned is any of the following: 1. Any building used as offices of the government or any of its agencies; 2. Any inhabited house or dwelling; 3. Any industrial establishment, shipyard, oil well or mine shaft, platform or tunnel; 4. Any plantation, farm, pastureland, growing crop, grain field, orchard, bamboo grove or forest; 5. Any rice mill, sugar mill, cane mill or mill central; and 6. Any railway or bus station, airport, wharf or warehouse.[Sec. 2 P.D. No. 1613] Destructive Arson The penalty of reclusion temporal in its maximum period to death shall be imposed upon any person who shall burn:

3.

4. 5.

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One (1) 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; Any building of public or private ownership, devoted to the public in general or where people usually gather or congregate for a definite purpose such as but not limited to official governmental function or business, private transaction, commerce, trade workshop, meetings and conferences, or merely incidental to a definite purpose such as but not limited to hotels, motels, transient dwellings, public conveyance or stops or terminals, regardless of whether the offender had knowledge that there are persons in said building or edifice at the time it is set on fire and regardless also of whether the building is actually inhabited or not. Any train or locomotive, ship or vessel, airship or airplane, devoted to transportation or conveyance, or for public use, entertainment or leisure. Any building, factory, warehouse installation and any 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 evidence of another violation of law, or for the purpose of concealing bankruptcy or defrauding creditors or to collect from insurance.[Art. 320]

By two or more persons Irrespective of the application of the above enumerated qualifying circumstances, the penalty of death shall likewise be imposed when the arson is perpetrated or committed by two (2) or more persons or by a group of 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 or another violation of law.[Art. 320] The penalty of reclusion temporal in its maximum period to death shall also 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. In an inhabited place, any storehouse or factory of inflammable or explosive materials. Arson resulting in death If as a consequence of his commission of any of the acts penalized under this Article (320), death or injury results, or any valuable documents, equipment, machineries, apparatus, or other valuable properties

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were burned or destroyed, the mandatory penalty of death shall be imposed.[Art. 320]

3.

If by reason of or on the occasion of the arson death results, the penalty of Reclusion Perpetua to death shall be imposed.[Sec. 5 P.D. No. 1613] Arson and homicide/murder [I]n cases where both burning and death occur, in order to determine what crime/crimes was/were perpetrated whether arson, murder or arson and homicide/murder, it is de rigueur to ascertain the main objective of the malefactor: Main objective Burning of the building or edifice, but death results by reason or on the occasion of arson To kill a particular person who may be in a building or edifice, when fire is resorted to as the means to accomplish such goal To kill a particular person, and in fact the offender has already done so, but fire is resorted to as a means to cover up the killing

Crime/s committed

4. 5.

6.

Arson (the resulting homicide is absorbed) 7. Murder

Two separate and distinct crimes are committed: 1) homicide/murder, and 2) arson [People v. Baluntong, G.R. No. 182061 (2010)]

Special Aggravating Circumstances in Arson The penalty in any case of arson shall be imposed in its maximum period; 1. If committed with intent to gain; 2. If committed for the benefit of another; 3. If the offender is motivated by spite or hatred towards the owner or occupant of the property burned; 4. If committed by a syndicate. The offense is committed by a syndicate if it is planned or carried out by a group of three (3) or more persons.[Sec. 4 P.D. No. 1613] Prima facie evidence of arson Any of the following circumstances shall constitute prima facie evidence of arson: 1. If the fire started simultaneously in more than one part of the building or establishment. 2. If substantial amount of flammable substances or materials are stored within the building note necessary in the business of the offender nor for household us.

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If gasoline, kerosene, petroleum or other flammable or combustible substances or materials soaked therewith or containers thereof, or any mechanical, electrical, chemical, or electronic contrivance designed to start a fire, or ashes or traces of any of the foregoing are found in the ruins or premises of the burned building or property. If the building or property is insured for substantially more than its actual value at the time of the issuance of the policy. If during the lifetime of the corresponding fire insurance policy more than two fires have occurred in the same or other premises owned or under the control of the offender and/or insured. If shortly before the fire, a substantial portion of the effects insured and stored in a building or property had been withdrawn from the premises except in the ordinary course of business. If a demand for money or other valuable consideration was made before the fire in exchange for the desistance of the offender or for the safety of the person or property of the victim.[Sec. 6 P.D. No. 1613]

Conspiracy to commit Arson Conspiracy to commit arson shall be punished by Prision Mayor in its minimum period.[Sec. 7 P.D. No. 1613]

9. Chapter IX: Malicious

Mischief

Malicious Mischief – It is the willful causing of damage to another’s property for the sake of causing damage because of hate, revenge or other evil motive.

a. Article 327 - Who Are Responsible Elements of malicious mischief: 1. Offender deliberately caused damage to the property of another. 2. Such act does not constitute arson or other crimes involving destruction 3. The act of damaging another’s property was committed merely for the sake of damaging it. If there is no malice in causing damage, the obligation to pay for the damages is only civil (Art. 2176. Civil Code) Damage means not only loss but also diminution of what is a man’s own. Thus, damage to another’s house

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includes defacing it. [People v Asido, G.R. No. L-32529 (1978)]

b. Article 328 - Special Cases of Malicious Mischief Special cases of malicious mischief: (qualified

malicious mischief) 1. 2. 3. 4.

Causing damage to obstruct the performance of public functions Using any poisonous or corrosive substance Spreading infection or contagion among cattle Causing damage to property of the National Museum or National Library, or to any archive or registry, waterworks, road, promenade, or any other thing used in common by the public.

c. Article 329 - Other Mischiefs

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If there is intent to kill, and damaging the railways was the means to accomplish the criminal purpose, the crime is murder

e. Article 331 – Destroying or Damaging Statues, Public Monuments or Paintings Acts punished: 1. Destroying or damaging statues or any other useful or ornamental public monument 2. Destroying or damaging any useful or ornamental painting of a public nature. The penalty is lower if the thing destroyed is a public painting, rather than a public monument.

10. Chapter X: Exemption from

Other mischiefs not included in Art. 328 are punished based on value of the damage caused. If the amount involved cannot be estimated, the penalty of arresto menor or fine not exceeding P200 is fixed by law. When several persons scattered coconut remnants which contained human excrement on the stairs and floor of the municipal building, including its interior, the crime committed is malicious mischief under Art. 329. [People v Dumlao, G.R. No. 168918 (2009)]

Criminal Liability

a. Article 332 - Exemption from Criminal Liability in Crimes Against Property Crimes involved in the exemption: 1. Theft 2. Swindling (estafa) 3. Malicious mischief If the crime is robbery, exemption does not lie.

d. Article 330 - Damage and Obstruction to Means of Communication Committed by damaging any railway, telegraph, or telephone lines. If the damage shall result in any derailment of cars, collision, or other accident, a higher penalty shall be imposed. (Qualifying Circumstance) Telegraph/phone lines must pertain to railways. Q: What is the crime when, as a result of the damage caused to railway, certain passengers of the train are killed? A: It depends. Art. 330 says “without prejudice to the criminal liability of the offender for other consequences of his criminal act.” If there is no intent to kill, the crime is “damages to means of communication” with homicide because of the first paragraph of Art. 4 and Art. 48.

Persons exempt from criminal liability: 1. Spouses, ascendants and descendants, or relatives by affinity in the same line. 2. The widowed spouse with respect to the property which belonged to the deceased spouse before the same passed into the possession of another. 3. Brothers and sisters and brothers-in-law and sisters-in-law, if living together. The law recognizes the presumed co-ownership of the property between the offender and the offended party. There is no criminal, but only civil liability. Art. 332 does not apply to a stranger who participates in the commission of the crime. Stepfather and stepmother are included as ascendants by affinity. [People v Alvarez; People v Adame] Guevarra: An adopted or natural child should also be considered as included in the term “descendants” and a concubine or paramour within the term “spouses”.

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Art. 332 also applies to common-law spouses. [Art. 144, Civil Code; People v Constantino, CA, 60 OG 3605] See again: RA 9372: Human Security Act on Punishable Acts of Terrorism

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K. Title XI. Crimes against Chastity 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13.

Art. 333: Adultery Art. 334: Concubinage Art. 336: Acts of Lasciviousness Art. 337: Qualified Seduction Art. 338: Simple Seduction Art. 339: Acts of Lasciviousness with the consent of the offended party Art. 340: Corruption of minors Art. 341: White Slave Trade Art. 342: Forcible Abduction Art. 343: Consented Abduction Art. 344: Prosecution of the crimes of Adultery Art. 345: Civil Liability Art. 346: Liability of ascendants, guardians, teachers, or other persons entrusted with custody of the offended party

1. Article 333 – Adultery Elements: a. The woman is married; b. She has sexual intercourse with a man not her husband; c. As regards the man with whom she has sexual intercourse: he knows her to be married. LEGENDS: H – husband; W – wife; M - marriage Offenders: Married woman and/or the man who has carnal knowledge of her, knowing her to be married, even if the M be subsequently declared void. It is not necessary that there be a valid M (i.e. void ab initio) Essence of adultery: violation of the marital vow Gist of the crime: the danger of introducing spurious heirs into the family, where the rights of the real heirs may be impaired and a man may be charged with the maintenance of a family not his own. [US v. Mata. G.R. No. L-6300 (1911)] The offended party must be legally married to the offender at the time of the filing of the complaint, even if the marriage be subsequently declared void. Each sexual intercourse constitutes a crime of adultery. Abandonment without justification is not exempting, but only mitigating. Both defendants are entitled to this mitigating circumstance. Page 285 of 309

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The man, to be guilty of adultery, must have knowledge of the married status of the woman. A married man who is not liable for adultery, because he did not know that the woman is married, may be held liable for concubinage. Acquittal of one of the defendants does not operate as a cause of acquittal of the other. Under the law, there is no accomplice in adultery. Direct proof of carnal knowledge is not necessary. Circumstantial evidence is sufficient. (i.e. love letters signed by the paramour, photos showing intimate relations, testimony of witnesses) Pardon by the H does not exempt the adulterous W and her paramour from criminal liability for adulterous acts committed subsequent to such pardon, because the pardon refers to previous and not to subsequent adulterous acts Effect of Pardon - applies to Concubinage as well: a. The pardon must come before the institution of the criminal prosecution; and b. Both the offenders must be pardoned by the offended party. Act of sexual intercourse subsequent to adulterous conduct is considered as an implied pardon. c. Pardon of the offenders by the offended party is a bar to prosecution for adultery or concubinage. d. Delay in the filing of complaint, if satisfactorily explained, does not indicate pardon. Effect of consent: The husband, knowing that his wife, after serving sentence for adultery, resumed living with her codefendant, did nothing to interfere with their relations or to assert his rights as husband. The second charge of adultery should be dismissed because of consent. [People v. Sensano and Ramos, G.R. No. L-37720 (1933)] Agreement to separate may be used as evidence to show consent by the husband to the infidelity of his wife. Effect of death of paramour: Offending wife may still be prosecuted. The requirement that both offenders should be included in the complaint is absolute only when the two offenders are alive. Effect of death of offended party: The proceedings may continue. Art. 353 seeks to protect the honor and

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reputation not only of the living but of dead persons as well.

2. Article 334 – Concubinage Elements: a. The man is married; b. He is either: 1. keeping a mistress in the conjugal dwelling; 2. Having sexual intercourse under scandalous circumstance with a woman not his wife; 3. Cohabiting with her in any other place; c. As regards the woman, she knows him to be married. Offenders: married man and the woman who knows him to be married. The woman only becomes liable if she knew him to be married prior to the commission of the crime. In the 3rd way of committing the crime, mere cohabitation is sufficient; Proof of scandalous circumstances not necessary. [People v. Pitoc, G.R. No. 18513 (1922)] A married man is not liable for concubinage for mere sexual relations with a woman not his wife. A man would only be guilty of concubinage if he appeared to be guilty of any of the acts punished in Art. 334. A married man who is not liable for adultery because he did not know that the woman was married, may be held liable for concubinage. If the woman knew that the man was married, she may be held liable for concubinage as well. Mistress – a woman taken by the accused to live with him in the conjugal dwelling as his mistress/concubine. Keeping a mistress in the conjugal dwelling – no positive proof of sexual intercourse is necessary Conjugal Dwelling – the home of the husband (H) and the wife (W) even if the wife appears to be temporarily absent on any account. The dwelling of the spouses was constructed from the proceeds of the sale of their conjugal properties. The fact that W never had a chance to reside therein and that H used it with his mistress instead, does not detract from its nature. [People v. Cordova, C.A., G.R. No. 19100-R (1959)] Cohabit – to dwell together as H and W for a period of time (i.e. A week, a month, year or longer)

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Scandalous circumstances – Scandal consists in any reprehensible word or deed that offends public conscience, redounds to the detriment of the feelings of honest persons, and gives occasion to the neighbors’ spiritual damage or ruin. [People v. Santos, 87 Phil. 687 (1950)] It is only when the mistress is kept elsewhere (outside the conjugal dwelling) that “scandalous circumstances” become an element of the crime. [US v. Macabagbag, G.R. No. 10564 (1915)] Qualifying expression: Sexual act which may be proved by circumstantial evidence Scandal produced by the concubinage of H: a. H and mistress live in the same room of a house b. They appear together in public, c. Perform acts in sight of the community which give rise to criticism and general protest among the neighbors. When spies are employed for the purpose of watching the conduct of the accused and it appearing that none of the people living in the vicinity has observed any suspicious conduct, there is no evidence of scandalous circumstances. [US v. Campos Rueda, G.R. No. L-11549 (1916)] Reason: Adultery is punished more severely than concubinage because adultery makes possible the introduction of another man’s offspring into the family so that the offended H may have another man’s son bearing H’s name and receiving support from him.

3. Article 336 - Acts of

Lasciviousness

Elements: a. The offender commits any act of lasciviousness or lewdness; b. The act is committed against a person of either sex; c. It is done under any of the ff. circumstances: 1. By using force or intimidation; or 2. When the offended party is deprived of reason or otherwise unconscious; 3. By means of fraudulent machination or grave abuse of authority 4. When the offended party is under 12 years of age or is demented. Lewd – obscene, lustful, indecent, lecherous; signifies form of immorality which has relation to moral impurity or that which is carried in wanton manner

CRIMINAL LAW

Motive of lascivious acts is not important because the essence of lewdness is in the very act itself. Example: If the kissing etc. was done inside church (which is a public place), absence of lewd designs may be proven, and the crime is unjust vexation only. But if the kissing was done in the house of a woman when she was alone, the circumstances may prove the accused’s lewd designs. Absent any of the circumstances of rape under the 3rd element, the crime is UNJUST VEXATION. (e.g. touching of breast) Lascivious intent is implied from the nature of the act and the surrounding circumstances. Consider the act and the environment to distinguish between Acts of Lasciviousness and Attempted Rape. Desistance in the commission of attempted rape may constitute acts of lasciviousness. There is no attempted or frustrated act of lasciviousness. Acts of Lasciviousness v. Grave Coercion Acts of Grave Coercion Lasciviousness Compulsion or force is Compulsion or force is included in the the very act constituting constructive element of the offense of grave force coercion Moral compulsion Must be accompanied amounting to by acts of lasciviousness intimidation is or lewdness sufficient Acts of Lasciviousness v. Attempted Rape Acts of Attempted Rape Lasciviousness Same means of committing the crime: 1. Force, threat, or intimidation is employed; or 2. By means of fraudulent machination or grave abuse of authority; or 3. The offended party is deprived of reason or otherwise unconscious; or 4. Victim is under 12 yrs. of age or is demented Offended party is a person of either sex. The performance of acts of lascivious character Acts performed clearly Acts performed do not indicate that the indicate that the accused’s purpose was

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accused was to lie w/ the offended party. Lascivious acts are the final objective sought by the offender.

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to lie w/ the offended woman. Lascivious acts are only the preparatory acts to the commission of rape.

Abuses against chastity (Art. 245) v Acts of lasciviousness (Art. 336) Offenses against Abuses against Chastity Chastity Committed by a private Committed by a public individual, in most cases officer only Some act of Mere immoral or lasciviousness should indecent proposal made have been executed by earnestly and the offender. persistently is sufficient. The accused followed the victim, held her, embraced her, tore her dress, and tried to touch her breast. When a complaint for acts of lasciviousness was filed against him, accused claimed that he had no intention of having sexual intercourse with her and that he did the acts only as revenge. TC found the accused guilty of FRUSTRATED ACTS OF LASCIVIOUSNESS. SC held that there is no frustrated crime against chastity which includes acts of lasciviousness, adultery, and rape. [People v. Famularcano, G.R. No. L17163 (1963)] From the moment the offender performs all the elements necessary for the existence of the felony, he actually attains his purpose. Motive of revenge is of no consequence since the element of lewdness is in the very act itself. Example: Compelling a girl to dance naked before a man is an act of lasciviousness, even if the dominant motive is revenge, for her failure to pay a debt.

CRIMINAL LAW

“Lascivious conduct” is defined under Section 2 (h) of the rules and regulations of RA 7610 as: a. The intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, OR the introduction of any object into the genitalia, anus or mouth, of any person, b. whether of the same or opposite sex, c. with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, d. bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person Comparison with Art. 366, RPC Acts of lasciviousness is punished under RA 7610 when performed on a child below 18 years of age exploited in prostitution or subjected to other sexual abuse. See discussion above for other acts of abuse The sweetheart theory applies in acts of lasciviousness and rape, felonies committed against or without the consent of the victim. It operates on the theory that the sexual act was consensual. It requires proof that the accused and the victim were lovers and that she consented to the sexual relations. For purposes of sexual intercourse and lascivious conduct in child abuse cases under RA 7610, the sweetheart defense is unacceptable. A child exploited in prostitution or subjected to other sexual abuse cannot validly give consent to sexual intercourse with another person. [Malto v. People, G.R. No. 164733 (2007)]

4. Article 337 - Qualified

Seduction

Two kinds of seduction: a. Qualified seduction (Art. 337) b. Simple seduction (Art. 338) “Lascivious Conduct” under RA 7610 The elements of sexual abuse under Section 5 (b) of RA 7610 that must be proven in addition to the elements of acts of lasciviousness are as follows: a. The accused commits the act of sexual intercourse or lascivious conduct. b. The said act is performed with a child exploited in prostitution or subjected to other sexual abuse. c. The child, whether male or female, is below 18 years of age. [Navarrete v. People, G.R. No. 147913 (2007)]

Seduction - enticing a woman to unlawful sexual intercourse by promise of marriage or other means of persuasion without use of force. It applies when there is abuse of authority (qualified seduction) or deceit (simple seduction). TWO CLASSES OF QUALIFIED SEDUCTION AND THEIR ELEMENTS: a. Seduction of a virgin over 12 years and under 18 years of age by certain persons such as, a person in authority, priest, teacher or any person who, in any capacity shall be entrusted with the education or custody of the woman seduced.

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Elements: 1. Offended party is a virgin, which is presumed if she is unmarried and of good reputation; 2. She is over 12 and under 18 yrs. of age; (1317 years 11 months 29 days) 3. Offender has sexual intercourse with her; 4. There is abuse of authority, confidence, or relationship on the part of the offender. b.

Seduction of a sister by her brother, or descendant by her ascendant, regardless of her age or reputation. Elements 1. Offended party need not be a virgin or she may be over 18 years old 2. Offender has sexual intercourse with her 3. Offender is her brother or ascendant by consanguinity, whether legitimate or illegitimate.

Virgin - a woman of chaste character and of good reputation. The offended party need not be physically a virgin. If there is no sexual intercourse and only acts of lewdness are performed, the crime is acts of lasciviousness. If any of the circumstances in the crime of rape is present, the crime is not to be punished under Art. 337. The accused charged with rape cannot be convicted of qualified seduction under the same information.

Offenders in Qualified Seduction:

Those who abused their authority: 1. Person in public authority; 2. Guardian; 3. Teacher; b. Person who, in any capacity, is entrusted with the education or custody of the woman seduced. 1. Those who abused confidence reposed in them: 2. Priest; 3. House servant; 4. Domestic c. Those who abused their relationship: 1. Brother who seduced his sister; 2. Ascendant who seduced his descendant. a.

“Domestic” - a person usually living under the same roof, pertaining to the same house. Not necessary that the offender be the teacher of the offended party; it is sufficient that he is a teacher in the same school.

CRIMINAL LAW

Qualified seduction may also be committed by a master to his servant, or a head of the family to any of its members. Qualified seduction of a sister or descendant, also known as INCEST, is punished by a penalty next higher in degree. The age, reputation, or virginity of the sister or descendant is irrelevant. The relationship need not be legitimate. A 15-year old virgin, who was brought by her mother to the house of the accused and his wife to serve as a helper, repeatedly yielded to the carnal desires of the accused, as she was induced by his promises of marriage and frightened by his acts of intimidation. HELD: DECEIT, although an essential element of ordinary or simple seduction, does not need to be proved or established in a charge of qualified seduction. It is replaced by ABUSE OF CONFIDENCE. [People v. Fontanilla, G.R. No. L25354 (1968)] The accused, a policeman, brought a 13-year old girl with low mentality, to the ABC Hall where he succeeded in having sexual intercourse with her. The complaint did not allege that the girl was a virgin. The accused was charged with RAPE but convicted of QUALIFIED SEDUCTION. HELD: Though it is true that virginity is presumed if the girl is over 12 but under 18, unmarried and of good reputation, virginity is still an essential element of the crime of qualified seduction and must be alleged in the complaint. Accused is guilty of RAPE, considering the victim’s age, mental abnormality and deficiency. There was also intimidation with the accused wearing his uniform. [Babanto v. Zosa, G.R. No. L-32895 (1983)] Perez succeeded in having sexual intercourse with Mendoza after he promised to marry her. As he did not make good on said promise, Mendoza filed a complaint for Consented Abduction. Trial Court found that the acts constituted seduction, acquitting him on the charge of Consented Abduction. Mendoza then filed a complaint for Qualified Seduction. Perez moved to dismiss the case on the grounds of double jeopardy. HELD: There are similar elements between consented abduction and qualified seduction, namely: a. the offended party is a virgin, and b. over 12 but under 18 yrs. of age

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However, an acquittal for CONSENTED ABDUCTION will not preclude the filing of a charge for QUALIFIED SEDUCTION because the elements of the two crimes are different. [Perez v. CA, G.R. No. :-80838 (1988)] Note: The fact that the girl gave consent to the sexual intercourse is not a defense.

5. Article 338 - Simple

Seduction

Elements: a. Offended party is over 12 and under 18 years of age; b. She is of good reputation, single or widow; c. Offender has sexual intercourse with her; d. It is committed by means of deceit.

c.

The acts are committed upon a woman who is a virgin or single or widow of good reputation, under 18 yrs. of age but over 12 yrs., or a sister or descendant, regardless of her reputation or age; The offender accomplishes the acts by abuse of authority, confidence, relationship, or deceit.

It is necessary that it be committed under circumstances which would make it qualified or simple seduction had there been sexual intercourse, instead of acts of lewdness only. When the victim is under 12 yrs., the penalty shall be one degree higher than that imposed by law. (Sec. 10 of R.A. 7610) Males cannot be the offended party. Acts of Lasciviousness (Art. 336)

Purpose of the law - To punish the seducer who by means of promise of marriage, destroys the chastity of an unmarried female of previous chaste character Virginity of offended party is not essential, good reputation is sufficient. Virginity of offended party is not required. Deceit generally takes the form of unfulfilled promise of marriage. Promise of marriage must be the inducement and the woman must yield because of the promise or other inducement. What about unfulfilled promise of material things, as when the woman agrees to sexual intercourse in exchange for jewelry? This is not seduction because she is a woman of loose morals. Promise of marriage after sexual intercourse does not constitute deceit. Promise of marriage by a married man is not a deceit, if the woman knew him to be married.

CRIMINAL LAW

Committed circumstances had there been knowledge, amount to rape

under which, carnal would

Offended party is a female or male

Acts of Lasciviousness with consent (Art. 339) Committed under circumstances which, had there been carnal knowledge, would amount to either qualified or simple seduction Offended party should only be female

7. Article 340 - Corruption of

Minors

Elements: a. Offender promotes or facilitates the prostitution or corruption of persons under age (minors), b. Purpose is to satisfy the lust of another Habituality or abuse of authority or confidence is not necessary.

Seduction is not a continuing offense.

It is not necessary that the unchaste acts shall have been done.

6. Article 339 - Acts of

Mere proposal will consummate the offense.

Lasciviousness with the Consent of the Offended Party

The victim must be of good reputation, not a prostitute or corrupted person.

Elements: a. Offender commits acts of lasciviousness or lewdness;

There is a crime of Attempted Child Prostitution. (Sec. 6, RA 7610) See again: RA 7610: Special Protection of Children against Child Abuse, Exploitation and Discrimination

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8. Article 341 - White Slave

Trade

Acts punishable: a. Engaging in business of prostitution b. Profiting by prostitution c. Enlisting the services of women for the purpose of prostitution.

CRIMINAL LAW

Crimes against chastity where age and reputation are immaterial: a. Acts of lasciviousness against the will or without the consent of the offended party b. Qualified seduction of sister or descendant c. Forcible abduction The taking away of the woman must be against her will.

Habituality is not a necessary element of white slave trade.

The taking away of the woman may be accomplished by means of deceit first and then by means of violence and intimidation.

‘Under any pretext’ – one who engaged the services of a woman allegedly as a maid, but in reality for prostitution, is guilty under this article.

If the female abducted is under 12, the crime is forcible abduction, even if she voluntarily goes with her abductor.

Victim is under 12 yrs., penalty shall be one degree higher. Offender need not be the owner of the house.

When the victim was abducted by the accused without lewd designs, but for the purpose of lending her to illicit intercourse with others, the crime is not abduction but corruption of minors.

Maintainer or manager of house of ill-repute need not be present therein at the time of raid or arrest.

Rape may absorb forcible abduction, if the main objective was to rape the victim.

Corruption of Minors Minority of victims essential Victims may be male or female May not necessarily be for profit Committed by a single act

White Slave Trade Minority is not required Applies only to females Generally for profit Generally habitually

committed

Sexual intercourse is not necessary in forcible abduction. Lewd designs may be shown by the conduct of the accused. When there are several defendants, it is enough that one of them had lewd designs. Husband is not liable for abduction of his wife, as lewd design is wanting. Attempt to rape is absorbed in the crime of forcible abduction, thus there is no complex crime of forcible abduction with attempted rape.

Two kinds of abduction: a. Forcible abduction (Art. 342) b. Consented abduction (Art. 343)

Nature of the crime - The act of the offender is violative of the individual liberty of the abducted, her honor and reputation, and public order.

9. Article 342 - Forcible

Abduction

Elements: a. The person abducted is any woman, regardless of her age, civil status or reputation; b. The abduction is against her will; c. The abduction is with lewd designs. Abduction – the taking away of a woman from her house or the place where she may be for the purpose of carrying her to another place with the intent to marry or to corrupt her.

Forcible Abduction There is violence or intimidation by the offender The offended part is compelled to do something against her will Abduction is characterized by lewd design

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Grave Coercion

No lewd design, provided that there is deprivation of liberty for an appreciable length of time

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Forcible Abduction Purpose is to effect his lewd designs on the victim Forcible Abduction There is deprivation of liberty and lewd designs Forcible Abduction with Rape Purpose is to effect his lewd designs on the victim Crime against chastity

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Corruption of Minors Purpose is to lend the victim to illicit intercourse with others Serious Illegal Detention There is deprivation of liberty and no lewd designs Kidnapping with Rape Purpose is to lend the victim to illicit intercourse with others Crime against liberty

Forcible Abduction with Rape - a complex crime under Art. 48, and not a special complex crime The victim was abducted by the accused and was brought to a hotel where the latter succeeded in having sexual intercourse with her. HELD: The elements of both rape and forcible abduction are proven. The presence of lewd designs in forcible abduction is manifested by the subsequent rape of the victim. [People v. Sunpongco, G.R. No. L42665 (1988)] Maggie was abducted and brought to a hotel, where the 4 accused took turns in raping her. HELD: While the first act of rape was being performed, the crime of forcible abduction had already been consummated, hence, forcible abduction can only be attached to the first act of rape, detached from the 3 subsequent acts of rape. The effect therefore would be one count of forcible abduction with rape and 4 counts of rape for each of the accused. [People v. Jose, G.R. No. L-28232 (1971)] The accused and 2 other men raped the victim. The victim was a jeepney passenger who was prevented from leaving the jeepney. She was taken to a remote place where she was raped. HELD: The accused is guilty of FORCIBLE ABDUCTION WITH RAPE. It was proven that the victim was taken against her will and with lewd design, and was subsequently forced to submit to the accused’s lust, rendering her unconscious in the process. [People v. Alburo, G.R. No. 85822 (1990)]

CRIMINAL LAW

There can only be one complex crime of forcible abduction with rape. The victim witnessed the killing of another by the 2 accused. Upon seeing her, the accused dragged her to a vacant lot where they took turns in raping her. TC convicted them of rape. HELD: FORCIBLE ABDUCTION is absorbed in the crime of RAPE if the main objective is to rape the victim. Conviction of acts of lasciviousness is not a bar to conviction of forcible abduction. [People v. Godines, G.R. No. 93410 (1991)]; People v. Garcia, 378 SCRA 266, one count of forcible abduction with multiple counts of rape.

10. Article 343 - Consented

Abduction

Elements: a. Offended party is a virgin; b. She is over 12 and under 18 yrs. of age; c. Offender takes her away with her consent, after solicitation or cajolery from the offender; d. The taking away is with lewd designs. Purpose of the law - Not to punish the wrong done to the girl because she consents to it, but to prescribe punishment for the disgrace to her family and the alarm caused by the disappearance of one who is, by her age and sex, susceptible to cajolery and deceit. If the virgin is under 12 or is deprived of reason, the crime is forcible abduction because such is incapable of giving a valid consent. The taking away of the girl need not be with some character of permanence. Offended party need not be taken from her house. When there was no solicitation or cajolery and no deceit and the girl voluntarily went with the man, there is no crime committed even if they had sexual intercourse.

11. Article 344 - Prosecution of

Private Offenses

a. b. c. d. e.

Adultery Concubinage Seduction Abduction Acts of lasciviousness

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Nature of the complaint: The complaint must be filed in court, not with the fiscal. In case of complex crimes, where one of the component offenses is a public crime, the criminal prosecution may be instituted by the fiscal.

1. 2. 3.

The court motu proprio can dismiss the case for failure of the aggrieved party to file the proper complaint even if the accused never raised the question on appeal. Crimes against chastity cannot be prosecuted de oficio.

CRIMINAL LAW

Offended party - When the offended party is a minor, her parents may file the complaint. When the offended party is of age and is in complete possession of her mental and physical faculties, she alone can file the complaint. Parents, Grandparents or Guardian in that order –

When the offended is a minor or incapacitated and refuses to file the complaint, any of the persons mentioned could file. The term “guardian” refers to legal guardian. He must be legally appointed by the Court.

ADULTERY AND CONCUBINAGE Who may file the complaint: Adultery and Concubinage must be prosecuted upon complaint signed by the offended spouse. The offended party cannot institute criminal prosecution without including BOTH the guilty parties if they are alive. Both parties must be included in the complaint even if one of them is not guilty. Consent and pardon bar the filing of a criminal complaint. The imputation of a crime of prostitution against a woman can be prosecuted de oficio, but crimes against chastity cannot. Prosecution of rape may be made upon complaint by any person. Effect of Pardon: 1. Effect of Pardon in Adultery applies also Concubinage 2. Condonation or forgiveness of one act adultery or concubinage is not a bar prosecution of similar acts that may committed by the offender in the future.

to of to be

The State may also file the complaint as parens patriae when the offended party dies or becomes incapacitated before she could file the complaint and has no known parents, grandparents, or guardians Effect of Pardon: 1. Offended party cannot institute criminal proceedings if the offender has been EXPRESSLY pardoned by the offended party, or her parents, grandparents or guardian. 2. Pardon by the parent, grandparent, or guardian must be accompanied by the express pardon of the offended woman. 3. The right to file action of the parents, grandparents and guardian shall be EXCLUSIVE of other persons and shall be exercised successively in the order provided. 4. Pardon by the offended party who is a minor must have the concurrence of parents, EXCEPT when the offended party has no parents. Rape complexed with another crime against chastity need NOT be signed by the offended woman, since rape is a public crime. When the evidence fails to prove a complex crime of rape with another crime, and there is no complaint signed by the offended woman, the accused CANNOT be convicted of rape.

Consent: 1. May be express or implied 2. Given before the adultery or concubinage was committed 3. Agreement to live separately may be evidence of consent. 4. Affidavit showing consent may be a basis for new trial.

Marriage of the offender with the offended party in seduction, abduction, acts of lasciviousness and rape, extinguishes criminal action or remits the penalty already imposed.

SEDUCTION, ABDUCTION, LASCIVIOUSNESS

Marriage must be entered into in good faith.

ACTS

OF

Seduction, abduction, or acts of lasciviousness must be prosecuted upon complaint signed by—

Marriage (in cases of seduction, abduction, and acts of lasciviousness) extinguishes the criminal action even as to co-principals, accomplices, and accessories.

Marriage may take place AFTER criminal proceedings have commenced, or even after

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conviction (extinguishes criminal action and remits penalty).

12. Article 345: Civil Liability of

Persons Guilty of Crimes Against Chastity

Those guilty of rape, seduction or abduction: a. Indemnify the offended woman b. Acknowledge the offspring, unless the law should prevent him from doing so c. In every case to support the offspring, EXCEPT: 1. in cases of adultery and concubinage 2. where either of the offended party or accused is married 3. when paternity cannot be determined, such as in multiple rape 4. other instances where the law prevents such The adulterer and the concubine can be sentenced only to indemnify for damages caused to the offended spouse. Acknowledgment of offspring is not legally possible, because only children born of parents who could marry at the time of conception may be acknowledged. Support of the offspring is also not included, because the person who gives birth is one of the offenders. In rape of a married woman, only indemnity is allowed.

13. Article 346 – Liability of

Ascendants, Guardians, Teachers and Other Persons Entrusted with the Custody of the Offended Party

Persons who cooperate as accomplices but are punished as principals in rape, seduction, abduction, etc. 1. Ascendants 2. Guardians 3. Curators 4. Teachers, and 5. any other person, who cooperate as accomplice with abuse of authority or confidential relationship b. The teachers or persons entrusted with education and guidance of the youth shall also be penalized with disqualification. c. Any person falling within the terms of this article, and any other person guilty of corruption of a.

CRIMINAL LAW

minors for the benefit of another, shall be punished by special disqualification from filling the office of guardian. RA 7877: Anti-Sexual Harassment Act Work, Education or Training-Related, Sexual Harassment Defined Work, education or training-related sexual harassment is 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. [Sec. 3 R.A. 7877] Work-related environment a. 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 or diminish employment opportunities or otherwise adversely affect said employee; b. The above acts would impair the employee's rights or privileges under existing labor laws; or c. The above acts would result in an intimidating, hostile, or offensive environment for the employee.[Sec. 3 R.A. 7877] Education or training environment a. Against one who is under the care, custody or supervision of the offender; b. Against one whose education, training, apprenticeship or tutorship is entrusted to the offender; c. 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 d. When the sexual advances result in an intimidating, hostile or offensive environment for the student, trainee or apprentice.[Sec. 3 R.A. 7877] Other persons liable 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

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another without which it would not have been committed, shall also be held liable under this Act.[Sec. 3 R.A. 7877] Penalties Any person who violates the provisions of this Act shall, upon conviction, be penalized by imprisonment of not less than one (1) month nor more than six (6) months, or a fine of not less than Ten thousand pesos (P10,000) or more than Twenty thousand pesos (P20,000), or both such fine and imprisonment at the discretion of the court. [Sec. 7 R.A. 7877] Prescription Any action arising from the violation of the provisions of this Act shall prescribe in three (3) years.[Sec. 3 R.A. 7877] RA 9995: Anti-Photo and Video Voyeurism Act of 2009 Definition Broadcast means to make public, by any means, a visual image with the intent that it be viewed by a person or persons. Capture with respect to an image, means to videotape, photograph, film, record by any means, or broadcast. Female breast means any portion of the female breast. Photo or video voyeurism means the act of taking photo or video coverage of a person or group of persons performing sexual act or any similar activity or of capturing an image of the private area of a person or persons without the latter's consent, under circumstances in which such person/s has/have a reasonable expectation of privacy, or the act of selling, copying, reproducing, broadcasting, sharing, showing or exhibiting the photo or video coverage or recordings of such sexual act or similar activity through VCD/DVD, internet, cellular phones and similar means or device without the written consent of the person/s involved, notwithstanding that consent to record or take photo or video coverage of same was given by such persons.

CRIMINAL LAW

person was being captured; or circumstances in which a reasonable person would believe that a private area of the person would not be visible to the public, regardless of whether that person is in a public or private place. [Sec. 3 RA 9995] Prohibited Acts a. To take photo or video coverage of a person or group of persons performing sexual act or any similar activity or to capture an image of the private area of a person/s such as the naked or undergarment clad genitals, public area, buttocks or female breast without the consent of the person/s involved and under circumstances in which the person/s has/have a reasonable expectation of privacy; b. To copy or reproduce, or to cause to be copied or reproduced, such photo or video or recording of sexual act or any similar activity with or without consideration; c. To sell or distribute, or cause to be sold or distributed, such photo or video or recording of sexual act, whether it be the original copy or reproduction thereof; or d. To publish or broadcast, or cause to be published or broadcast, whether in print or broadcast media, or show or exhibit the photo or video coverage or recordings of such sexual act or any similar activity through VCD/DVD, internet, cellular phones and other similar means or device. The prohibition under paragraphs (b), (c) and (d) shall apply notwithstanding that consent to record or take photo or video coverage of the same was given by such person/s. Any person who violates this provision shall be liable for photo or video voyeurism as defined herein. [Sec. 4 RA 9995]

Private area of a person means the naked or undergarment clad genitals, public area, buttocks or female breast of an individual. Under circumstances in which a person has a reasonable expectation of privacy means believe that he/she could disrobe in privacy, without being concerned that an image or a private area of the Page 295 of 309

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L. Title XII. Crimes against the Civil Status of Persons 1.

2.

Chapter I: Simulation of Births and Usurpation of Civil Status a. Art 347: Simulation of births, substitution of one child for another and concealment or abandonment of a legitimate child b. Art 348: Usurpation of civil status Chapter II: Illegal Marriages a. Art 349: Bigamy b. Art 350: Marriage contracted against provisions of law c. Art 351: Premature marriages d. Art 352: Performance of illegal marriage ceremony

1. Chapter I: Simulation of

Births and Usurpation of Civil Status

CRIMINAL LAW

The fact that the child will be benefited by the simulation of its birth is not a defense. Substitution of one child for another This is committed when a child of a couple is exchanged with a child of another couple without the knowledge of the respective parents. The substitution can also happen by placing a live child of a woman in place of another’s dead child. Concealing or abandoning any legitimate child Requisites: 1. The child must be legitimate 2. The offender conceals or abandons such child; and 3. The offender has the intent to cause such child to lose its civil status. The unlawful sale of a child by his father is not a crime under this article. “Abandon” as used in Art. 347 - The practice of abandoning newly born infants and very young child at the door of hospitals and churches.

a. Article 347 - Simulation of Births, Substitution of One Child for Another, and Concealment or Abandonment of a Legitimate Child Mode 1. Simulation of births; Mode 2. Substitution of one child for another; Mode 3. Concealing or abandoning any legitimate child with intent to cause such child to lose its civil status. The object of the crime under Art. 347 is the creation of false, or the causing of loss of, 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 supposed delivery, takes the child of another as her own. The simulation of birth which is a crime is that which alters the civil status of a person.

Art. 347 Offender: any person Purpose: to cause the child to lose his civil status

Art. 246 Offender: the one who has the custody of the child Purpose: to avoid obligation of rearing and caring for the child

A physician or surgeon or public officer, who cooperates in the execution of these crimes, is also liable if he acts in violation of the duties of his profession or office.

b. Article 348 - Usurpation of Civil Status This crime is committed when a person represents himself to be another and assumes the filiation or the parental or conjugal rights of such another person. Usurpation of profession may be punished under Art. 348. There must be an intent to enjoy the rights arising from the civil status of another. The purpose of defrauding the offended party or his heirs qualifies the crime.

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2. Chapter II: Illegal Marriages a. Article 349 – Bigamy Elements: 1. Offender has been legally married; 2. The marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code 3. He contracts a second or subsequent marriage 4. The second or subsequent marriage has all the essential requisites for validity. The first marriage must be valid. Nullity of marriage, not a defense in bigamy. The fact that the first marriage is void from the beginning is not a defense. As with voidable marriage, there must be a judicial declaration of nullity of marriage before contracting the second marriage. Good faith is a defense in bigamy. Failure to exercise due diligence to ascertain the whereabouts of the first wife is bigamy through reckless imprudence. One who contracted a subsequent marriage before the declaration of presumptive death of the absent spouse is guilty of bigamy. The second marriage must have all the essential requisites for validity. One convicted of bigamy may also be prosecuted for concubinage as both are distinct offenses. The first is an offense against civil status, which may be prosecuted at the instance of the state; the second is an offense against chastity, and may be prosecuted only at the instance of the offended party. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. The second spouse is not necessarily liable for bigamy. Whether the second spouse should be included in the information is a question of fact that was to be determined by the fiscal who conducted the preliminary investigation. [People v. Nepomuceno, Jr., G.R. No. L-40624 (1975)]

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The second husband or wife who knew of first marriage is an accomplice. The witness who falsely vouched for the capacity of either of the contracting parties is also an accomplice. Bigamy is not a private crime. In Marbella-Bobis v. Bobis, we laid down the elements of bigamy thus: 1. The offender has been legally married; 2. The first marriage has not been legally dissolved, or in case his or her spouse is absent, the absent spouse has not been judicially declared presumptively dead; 3. He contracts a subsequent marriage; and 4. The subsequent marriage would have been valid had it not been for the existence of the first. Applying the foregoing test to the instant case, we note that the trial court found that there was no actual marriage ceremony performed between Lucio and Lucia by a solemnizing officer. Instead, what transpired was a mere signing of the marriage contract by the two, without the presence of a solemnizing officer. The first element of bigamy as a crime requires that the accused must have been legally married. But in this case, legally speaking, the petitioner was never married to Lucia Barrete. Thus, there is no first marriage to speak of. Under the principle of retroactivity of a marriage being declared void ab initio, the two were never married “from the beginning.” The contract of marriage is null; it bears no legal effect. Taking this argument to its logical conclusion, for legal purposes, petitioner was not married to Lucia at the time he contracted the marriage with Maria Jececha. The existence and the validity of the first marriage being an essential element of the crime of bigamy, it is but logical that a conviction for said offense cannot be sustained where there is no first marriage to speak of. The petitioner, must, perforce be acquitted of the instant charge. [Morigo v. People, G.R. No. 145226 (2004)] The subsequent judicial declaration of the nullity of the first marriage was immaterial because prior to the declaration of nullity, the crime had already been consummated. Moreover, petitioner's assertion would only delay the prosecution of bigamy cases considering that an accused could simply file a petition to declare his previous marriage void and

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invoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that. The outcome of the civil case for annulment of petitioner's marriage to Narcisa had no bearing upon the determination of petitioner's innocence or guilt in the criminal case for bigamy, because all that is required for the charge of bigamy to prosper is that the first marriage be subsisting at the time the second marriage is contracted. Thus, under the law, a marriage, even one which is void or voidable, shall be deemed valid until declared otherwise in a judicial proceeding. In this case, even if petitioner eventually obtained a declaration that his first marriage was void ab initio, the point is, both the first and the second marriage were subsisting before the first marriage was annulled. [Abunado v. People, G,R. No. 159218 (2004)] A careful study of the disputed decision reveals that respondent Judge had been less than circumspect in his study of the law and jurisprudence applicable to the bigamy case. In his comment, respondent Judge stated: “That the accused married Manuel P. Diego in the honest belief that she was free to do so by virtue of the decree of divorce is a mistake of fact.” This Court, in People v. Bitdu [G.R. No. L-38230 (1933)], carefully distinguished between a mistake of fact, which could be a basis for the defense of good faith in a bigamy case, from a mistake of law, which does not excuse a person, even a lay person, from liability. Bitdu held that even if the accused, who had obtained a divorce under the Mohammedan custom, honestly believed that in contracting her second marriage she was not committing any violation of the law, and that she had no criminal intent, the same does not justify her act. This Court further stated therein that with respect to the contention that the accused acted in good faith in contracting the second marriage, believing that she had been validly divorced from her first husband, it is sufficient to say that everyone is presumed to know the law, and the fact that one does not know that his act constitutes a violation of the law does not exempt him from the consequences thereof. Moreover, squarely applicable to the criminal case for bigamy, is People v. Schneckenburger [G.R. No. L-48183 (1941)], where it was held that the accused who secured a foreign divorce, and later remarried in the Philippines, in the belief that the foreign divorce was valid, is liable for bigamy. [Diego v. Castillo, AM RTJ02-1673 (2004)]

CRIMINAL LAW

b. Article 350 - Marriage Contracted against Provisions of Laws Elements: 1. Offender contracted marriage; 2. He knew at the time that – a. The requirements of the law were not complied with; or b. The marriage was in disregard of a legal impediment. Bigamy is a form of illegal marriage. Illegal marriage includes also such other marriages which are performed without complying with the requirements of law, or marriages where the consent of the other is vitiated, or such marriage which was solemnized by one who is not authorized to solemnize the same. Conviction of a violation of Art. 350 involves a crime of moral turpitude. [Villasanta v. Peralta, Administrative Case (1957)]

c. Article 351 - Premature Marriage This provision has been repealed on 13 March 2015 when President Benigno Aquino III signed into law RA 10655. Said law reads: “Without prejudice to the provisions of the Family Code on paternity and filiation, Article 351 of the Revised Penal Code, punishing the crime of premature marriage committed by a woman, is hereby repealed.” The author of RA 10655 explained that the law on premature marriages “is discriminatory for it curtails the right of a woman to marry under the stated circumstances when no such penalty is imposed on the man who does the same. Similarly, the effect of the provision is an enforced mourning period on the part of the woman although none is imposed on the man.” BEFORE REPEAL: Persons liable: 1. A widow who is married within 301 days from the date of the death of her husband, or before having delivered if she is pregnant at the time of his death; 2. A woman who, her marriage having been annulled or dissolved, married before her delivery or before the expiration of the period of 301 days after the date of the legal separation.

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The purpose of the law punishing premature marriages is to prevent doubtful paternity. [People v. Rosal, G.R. No. L-25706 (1926)]

M. Title XIII. Crimes against Honor

d. Article 352 - Performance of Illegal Marriage Ceremony

1.

Chapter I: Libel a. Art 353: Definition of Libel b. Art 354: Privileged communication c. Art 355: Libel by means of writings or similar means d. Art 356: Threatening to publish and offer to prevent such publication for a compensation e. Art. 357: Prohibited Publication of Acts Referred to in the course of Official Proceedings f. Art 358: Slander g. Art 359: Slander by Deed

2.

Chapter II: Incriminatory Machinations a. Art 363: Incriminating innocent person b. Art 364: Intriguing against honor

PERSONS LIABLE: Priests or ministers of any religious denomination or sect, or civil authorities who shall perform or authorize any illegal marriage ceremony The offender must be authorized to solemnize marriages.

1. Chapter I: Libel a. Article 353 - Definition of Libel Elements: 1. There must be an imputation of– a. a crime, b. a vice or defect, real or imaginary, OR c. any act, omission, condition, status, or circumstance; 2. The imputation must be made publicly; 3. It must be malicious; 4. The imputation must be directed at a natural or juridical person, or one who is dead; and 5. The imputation must tend to cause dishonor, discredit or contempt of the offended party. Defamation is composed of: 1. Libel – written defamation 2. Slander- oral defamation 3. Slander by deed – defamation through acts Test of the defamatory character of words used: Whether they are calculated to induce the hearers to suppose and understand that the person against whom they (i.e. the defamatory words) were uttered was guilty of certain offenses; OR are sufficient to impeach his honesty, virtue or reputation, or to hold him up to public ridicule. [U.S. v. O’Connell, G.R. No. L-13173 (1918)] First element: There must be an imputation of a crime, a vice or defect, real or imaginary, OR any act, omission, condition, status, or circumstance; Page 299 of 309

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Imputation of a criminal act may be implied from the acts and statements of the accused. Imputation of criminal intention is not libelous. An expression of opinion by one affected by the act of another and based on actual fact is not libelous. Second element: The imputation must be made publicly.

CRIMINAL LAW

In order to maintain a libel suit, it is essential that the victim be identifiable, although it is not necessary that the person be named. It is enough if by intrinsic reference the allusion is apparent or if the publication contains matters of description or reference to facts and circumstances from which others reading the article may know the person alluded to, or if the latter is pointed out by extraneous circumstances so that those knowing such person could and did understand that he was the person referred to.

Publication: communication of the defamatory matter to some third person or persons. There is no crime if the defamatory imputation is not published.

Kunkle v. Cablenews-American and Lyons laid the rule that this requirement is complied withwhere a third person recognized or could identify the party vilified in the article. [People v. Ogie Diaz, G.R. No. 159787 (2007)]

Sending an unsealed libelous letter to the offended party constitutes publication. [Magno v. People, G.R. No. 133896 (2006)]

Defamatory remarks directed at a group of persons is not actionable unless the statements are all-embracing or sufficiently specific for the victim to be identifiable.

In libel, publication means making the defamatory matter, after it is written, known to someone other than the person against whom it has been written.

Libel published in different places may be taken together to establish the identification of the offended party.

Petitioner’s subject letter-reply itself states that the same was copy furnished to all concerned. Also, petitioner had dictated the letter to his secretary. It is enough that the author of the libel complained of has communicated it to a third person. Furthermore, the letter, when found in the mailbox, was open, not contained in an envelope thus, open to public. [Buatis v. People, G.R. No. 142509 (2006)]

While it is true that a publication's libelous nature depends on its scope, spirit and motive taken in their entirety, the article in question as a whole explicitly makes mention of private complainant Rivera all throughout. It cannot be said that the article was a mere general commentary on the alleged existing state of affairs at the aforementioned public market. Rivera was not only specifically pointed out several times therein but was even tagged with derogatory names. Indubitably, this name-calling was, as correctly found by the two courts below, directed at the very person of Rivera himself. [Figueroa v. People, G.R. No. 159818 (2006)]

Third element: The publication must be malicious. Malice in fact – may be shown by proof of ill-will, hatred or purpose to injure. Malice in law – presumed from a defamatory imputation. Proof of malice is not required. (Art. 354, par.1)

Fifth element: The imputation must tend to cause dishonor, discredit or contempt of the offended party.

But where the communication is privileged, malice is not presumed from the defamatory words.

Dishonor – disgrace, shame or ignominy Discredit – loss of credit of reputation; disesteem Contempt – state of being despised

Malice in law is not necessarily inconsistent with honest or laudable purpose. Even if the publication is injurious, the presumption of malice disappears upon proof of good intentions and justifiable motive.

For a statement to be considered malicious, it must be shown that it was written or published with the knowledge that they are false OR in reckless disregard of WON they were false.

But where malice in fact is present, justifiable motive cannot exist, and the imputations become actionable.

Reckless disregard– the defendant entertains serious doubt as to the truth of the publication, OR that he possesses a high degree of awareness of their probable falsity.

Fourth element: The imputation must be directed at a natural or juridical person, or one who is dead.

To avoid self-censorship that would necessarily accompany strict liability for erroneous statements, Page 300 of 309

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rules governing liability for injury to reputation are required to allow an adequate margin of error by protecting some inaccuracies. [Borjal v. CA, G.R. No. 126466 (1999)] Fine preferred penalty in libel cases Administrative Circular No. 08-2008 stated the rule of preference of fine only rather than imprisonment in libel cases, having in mind the ff. principles: 1. The circular does not remove imprisonment as an alternative penalty 2. Judges may, in the exercise of their discretion, determine whether the imposition of fine alone would best serve the interest of justice. 3. Should only a fine be imposed and the accused unable to pay the fine, there is no legal obstacle to the application of the RPC on subsidiary imprisonment.

Kinds of Privilege: Absolute NOT actionable. Narrow and few: 1. Privileged speeches in Congress 2. Statements made in judicial proceedings as long as they are relevant to the issue 3. Military affairs

General rule: MALICE IS PRESUMED in every defamatory imputation, even if it be true, if no good intention and justifiable motive for making it is shown. Exceptions: In privileged communications, namely: 1. A private communication made by any person to another in the performance of any legal, moral, or social duty; 2. A fair and true report, made in good faith, without any comments or remarks, of a. any judicial, legislative or other official proceedings which are not of confidential nature, OR b. any statement, report or speech delivered in said proceedings, OR c. any other act performed by public officers in the exercise of their functions. Defamatory remarks are PRESUMED malicious. The presumption of malice is REBUTTED, if it is shown by the accused that – (see discussion of Art. 361) 1. The defamatory imputation is true, IN CASE the law allows proof of the truth of the imputation; 2. It is published with good intention; AND 3. There is justifiable motive for making it Privileged communication is NOT PRESUMED malicious.

Qualified Actionable IF Malice or Bad faith is proven (malice in fact) Based on par 1 and 2 of Art 354, although the list is not exclusive

Art 354 does not cover absolute privilege because character of communications mentioned therein is lost upon proof of malice in fact. Malice in Law

b. Article 354 - Requirement for Publicity

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Presumed from defamatory character of statement Statement is presented to court, and the latter will decide whether or not it is defamatory

Malice in Fact To be proved by prosecution ONLY IF malice in law has been rebutted Can be negated by evidence of: 1. Good motives AND justifiable ends; or 2. Privileged character

Requisites of privileged communication under par. 1 of Art. 354: 1. That the person who made the communication had a legal, moral or social duty to make the communication, or, at least, he had an interest to be upheld; 2. That the communication is addressed to an officer or board, or superior, having some interest or duty in the matter. 3. That the statements in the communication are made in good faith without malice in fact. Applying to the wrong person due to honest mistake does not take the case out of privilege. [US v. Bustos, G.R. No. L-12592 (1918)] Unnecessary publicity destroys good faith. The privileged character simply does away with the presumption of malice. The rule is that a communication loses its privileged character and is actionable on proof of actual malice. That the statement is a privileged communication is a matter of defense. To overcome the defense of

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privileged communication under par. 1 of Art. 354, it must be shown that: 1. The defendant acted with malice in fact; or 2. There is no reasonable ground for believing the charge to be true. Fair and true report of official proceedings Official proceedings refer to proceedings of the 3 branches of the government: judiciary, legislative, and executive. Requisites: 1. That it is a fair and true report of a judicial, legislative, or other official proceedings which are not confidential in nature, or of a statement, report, or speech delivered in said proceedings, or of any other act performed by a public officer in the exercise of his functions. 2. That it is made in good faith; and 3. That it is without comments or remarks The communication must be pertinent and material to the subject matter. Doctrine of fair comment: Fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. In order that a discreditable imputation to a public official may be actionable, it must either be: 1. A false allegation of fact; OR 2. A comment based on a false supposition. [People v. Velasco, G.R. No. 127444 (2000)]

5. 6. 7. 8. 9. 10.

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Radio; Photograph; Painting; Theatrical exhibition; Cinematographic exhibition; or Any similar means. (e.g. video broadcast)

Common characteristic of written libel: their permanent nature as a means of publication. Use of amplifier system is not libel but oral defamation (slander). But the defamation made in the television program is libel.

d. Article 356 - Threatening to Publish and Offer to Prevent Such Publication for a Compensation Acts Punished: 1. Threatening another to publish a libel concerning – him, his parents, spouse, child or other members of his family 2. Offering to prevent the publication of such libel for compensation or money consideration. The essence of this crime is blackmail, which is defined as any unlawful extortion of money by threats of accusation or exposure. Blackmail can also be in the form of light threats, which is punished under ARTICLE 283.

PUBLIC FIGURE – one who, by his accomplishments, fame, mode of living, OR by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs and his character, has become a “public personage” [Ayer Productions v. Capulong, G.R. No. 82380 (1988)]

e. Article 357 - Prohibited Publication of Acts Referred to in the Course of Official Proceedings (Gag Law)

Based on the ruling in US v. Ocampo [G.R. No. L-5527 (1910)], proof of knowledge of and participation in the publication of the offending article is not required, if the accused has been specifically identified as “author, editor, or proprietor” or “printer/publisher” of the publication.

Elements: 1. Offender is a reporter, editor or manager of a newspaper, daily or magazine; 2. He publishes facts connected with the private life of another; 3. Such facts are offensive to the honor, virtue and reputation of said person.

c. Article 355 - Libel by Writing or Similar Means Libel may be committed by means of: 1. Writing; 2. Printing; 3. Lithography; 4. Engraving;

Requisites of violation: 1. That the article published contains facts connected with the private life of an individual; and 2. That such facts are offensive to the honor, virtue and reputation of said person.

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Prohibition applies even if the facts are involved in official proceedings. Newspaper reports on cases pertaining to adultery, divorce, legitimacy of children, etc. are barred from publication. Under RA 1477, a newspaper reporter cannot be compelled to reveal the source of the news report he made, UNLESS the court or a House or committee of Congress finds that such revelation is demanded by the security of the state.

f. Article 358 - Slander Slander, or oral defamation is composed of two kinds: 1. Simple slander 2. Grave slander, when it is of serious and insulting nature Factors that determine the gravity of the oral defamation: 1. Expressions used 2. Personal relations of the accused and the offended party. 3. The surrounding circumstances. Illustration of grave slander: A woman of violent temper hurled at a respectable married lady with young daughters offensive and scurrilous epithets including words imputing unchastity to the mother and tending to injure the character of the daughters [U.S. v. Tolosa, G.R. No. L12696 (1917)] Illustration of simple slander: 1. Calling a person a gangster 2. Uttering defamatory words in the heat of anger with some provocation on the part of the offended party The Court does not condone the vilification or use of scurrilous language on the part of petitioner, but following the rule that all possible circumstances favorable to the accused must be taken in his favor, it is our considered view that the slander committed by petitioner can be characterized as slight slander following the doctrine that: uttering defamatory words in the heat of anger, with some provocation on the part of the offended party, constitutes only a light felony. [Villanueva v. People, G.R. No. 160315 (2006)]

3.

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The word “putang ina mo” is a common expression in the dialect that is often employed not really to slander but rather to express anger or displeasure. It is seldom, if ever taken in its literal sense by the hearer, that is, as a reflection on the virtue of a mother. [Reyes v. People, G.R. Nos. L-21528-29 (1969)]

The slander need not be heard by the offended party.

g. Article 359 - Slander by Deed Elements 1. Offender performs any act not included in any other crime against honor; 2. Such act is performed in the presence of other person/s; and 3. Such act casts dishonor, discredit or contempt upon the offended party. Slander by deed is a crime against honor which is committed by performing any act which casts dishonor, discredit, or contempt upon another person. Slander by deed is of two kinds 1. Simple slander by deed 2. Grave slander by deed There is no fixed standard in determining whether a slander is serious or not; hence the courts have sufficient discretion to determine the same, basing the finding on the attendant circumstances and matters relevant thereto. Slapping the face of another is slander by deed if the intention of the accused is to cause shame or humiliation. Fighting the offended party with intention to insult him is slander by deed. Pointing a dirty finger constitutes simple slander by deed. Slander by deed and acts of lasciviousness – distinguished by presence of lewd designs. If such is present, it is an act of lasciviousness. Slander by deed and maltreatment – the nature and effect of maltreatment determines the crime committed. If the offended party suffered from shame or humiliation caused by the maltreatment, it is slander by deed.

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Slander by deed and unjust vexation – If it merely annoys and irritates, without any other concurring factor, it is unjust vexation. If the irritation or annoyance was attended by publicity and dishonor, it is slander by deed.

h. Article 360 - Persons Responsible for Libel 1. 2. 3. 4.

The person who publishes, exhibits or causes the publication or exhibition of any defamation in writing or similar means. The author or editor of a book or pamphlet. The editor or business manager of a daily newspaper, magazine or serial publication. The owner of the printing plant which publishes a libelous article with his consent and all other persons who in any way participate in or have connection with its publication.

Liability of the editor is the same as that of the author. Lack of participation in the preparation of libelous articles does not shield the persons responsible from liability. Under Republic Act 8792, otherwise known as the Electronic Commerce Act, a party or person acting as a service provider incurs NO civil or criminal liability in the making, publication, dissemination or distribution of libelous material if: 1. The service provider does not have actual knowledge, or is not aware of the facts or circumstances from which it is apparent that making, publication, dissemination or distribution of such material is unlawful or infringes any rights; 2. The service provider does not knowingly receive a financial benefit directly attributable to the infringing activity; 3. The service provider does: a. not directly commit any infringement or other unlawful act and b. does not induce or cause another person or party to commit any infringement or other unlawful act c. and/or does not benefit financially from the infringing activity or unlawful act of another person or party (Section 30, in relation to Section 5, E-Commerce Law). Where to file the criminal action? It depends on who the offended party is. If he is a public officer, the criminal action can only be instituted in either:

1. 2.

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RTC of the province or city where the libelous article is printed and first published, OR RTC of the province or city where he held office at the time of the commission of the offense

If he is a private person, the criminal action may be brought in: 1. RTC of the province or city where the libelous article is printed and first published, OR 2. RTC of the province or city where he actually resided at the time of the commission of the offense In order to obviate controversies as to the venue of the criminal action for written defamation, the complaint or information should contain allegations as to whether, at the time the offense was committed, the offended party was a public officer or a private individual and where he was actually residing at that time. Whenever possible, the place where the written defamation was printed and first published should likewise be alleged. That allegation would be a sine qua non if the circumstance as to where the libel was printed and first published is used as the basis of the venue of the action. [Macasaet v. People, G.R. No. 156747 (2005)] Civil and criminal action must be filed with the same court. Offended party must file the complaint for defamation imputing a crime which cannot be prosecuted de officio. Libel imputing a vice or defect, not being an imputation of a crime, is always prosecuted upon information signed and filed by the fiscal.

i. Article 361 - Proof of Truth When admissible? 1. When the act or omission imputed constitutes a crime regardless of whether the offended party is a private individual or a public officer. 2. When the offended party is a Government employee, even if the imputation does not constitute a crime, provided it is related to the discharge of his official duties. Rule of actual malice [or malice in fact]: Even if the defamatory statement is false, NO liability can attach IF it relates to official conduct, UNLESS the public official concerned proves that the statement was made with actual malice, i.e., with knowledge that

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it was false or with reckless disregard of WON it was false. That the publication of the article was an honest mistake is not a complete defense but serves only to mitigate damages where article is libelous per se. Libel against a public official An open letter addressed to the stockholders of OPMC was the subject of a full-page advertisement published in 5 major daily newspapers. Coyiuto, Jr., wrote in his capacity as Chairman of the Board and President of OPMC, that there was a sweetheart deal between Commissioner Mario Jalandoni of the PCGG and Rizal Commercial Banking Corp. (RCBC) to the prejudice of the Government. In the recent case of Vasquez v. Court of Appeals, et. al., the Court ruled that: "The question is whether from the fact that the statements were defamatory, malice can be presumed so that it was incumbent upon petitioner to overcome such presumption. Under Art. 361 of the Revised Penal Code, if the defamatory statement is made against a public official with respect to the discharge of his official duties and functions and the truth of the allegation is shown, the accused will be entitled to an acquittal even though he does not prove that the imputation was published with good motives and for justifiable ends." Moreover, the Court has ruled in a plethora of cases that in libel cases against public officials which relate to official conduct liability will attach only if the public official concerned proves that the statement was made with actual malice, that is, with knowledge that it was false. Imputations regarding official conduct do not carry the presumption of malice, hence even if the defamatory statement is false, if malice was not proven, there is no libel. Here petitioner failed to prove actual malice on the part of the private respondents. Nor was the Court of the opinion that the open letter was written to cast aspersion on the good name of the petitioner. The paid advertisement merely served as a vehicle to inform the stockholders of the goings-on in the business world and only exposed the irregularities surrounding the PCGG and RCBC deal and the parties involved. [Jalandoni v Drilon, G.R. Nos. 11523940 (2000)] Truth is a legitimate defense but only under the condition that the accused has been prompted in making the statement by good motives and for justifiable ends. [Disini v. Secretary of Justice, G.R. No. 203335 (2014)]

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There must be sufficient evidence to permit the conclusion that the accused in fact entertained serious doubts as to the truth of the statement he published. Gross/extreme negligence is not sufficient to establish actual malice. The prosecution bears the burden of proving the presence of actual malice in instances where such element is required to establish guilt. The defense of absence of actual malice, even when the statement turns out to be false, is available where the offended party is a public official or public figure. Malice is presumed, however, when the offended party is a private individual. The law presumes its existence (RPC Art 354) and the accused has the burden of proof to show that he has a justifiable reason for the defamatory statement.

j. Article 362 - Libelous Remarks 1. 2. 3. 4.

Libelous remarks or comments connected with the matter privileged under the provisions of Art. 354, if made with malice, shall NOT exempt the author thereof nor the editor or managing editor of a newspaper from criminal liability.

Libelous remarks or comments on matters privileged, if made with malice in fact, do not exempt the author and editor.

2. Chapter II: Incriminatory

Machinations

a. Article 363 - Incriminating Innocent Person Elements: 1. Offender performs an act 2. By such an act, he incriminates or imputes to an innocent person the commission of a crime 3. Such act does not constitute perjury. Intriguing Against Honor The source of the defamatory utterance is unknown and the offender

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Slander Offender made the utterance, where the source of the defamatory nature of the

Incriminating Innocent Person Offender performs an act by which he directly incriminates or imputes to an

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simply repeats or passes the same to blemish the honor or reputation of another

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utterance is known, and offender makes a republication thereof

innocent person the commission of a crime

As far as this crime is concerned, this has been interpreted to be possible only in the so-called planting of evidence. If this act is resorted to, to enable officers to arrest the subject, the crime is unlawful arrest through incriminating innocent persons. This crime cannot be committed through verbal incriminatory statements. Intriguing Innocent Person

Perjury by Making False Accusations

Defamation

Act of planting evidence and the like in order to incriminate an innocent person

Giving of false statement under oath or making a false affidavit, imputing to the person the commission of a crime

Public and malicious imputation calculated to cause dishonor, discredit, or contempt upon the offended party

3.

whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperative of justice; Should only a fine be imposed and the accused be unable to pay the fine, there is no legal obstacle to the application of the RPC provision on subsidiary imprisonment.

RA 10175: The Cybercrime Prevention Act of 2012 The unlawful or prohibited acts of libel as defined in Article 355 of the RPC, as amended, committed through a computer system or any other similar means which may be devised in the future constitute the offense of cybercrime punishable under the AntiCybercrime Law. [Sec. 4(c)(4) R.A. 10175] Penalty All crimes defined and penalized by the RPC, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the RPC, as amended, and special laws, as the case may be.[Sec. 6 R.A. 10175]

b. Article 364 - Intriguing against Honor Elements: 1. Offender disseminates any intrigue 2. Its principal purpose is to blemish the honor or reputation of a person. Intriguing against honor is referred to as gossiping: the offender, without ascertaining the truth of a defamatory utterance, repeats the same and pass it on to another, to the damage of the offended party

Administrative Circular 08-2008 Re: Guidelines in the Observance of a Rule of Preference in the Imposition of Penalties in Libel Cases 1. 2.

CRIMINAL LAW

This Administrative Circular does not remove imprisonment as an alternative penalty for the crime libel under Article 355 of the RPC The Judges concerned may, in the exercise of sound discretion, and taking into consideration the peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve the interests of justice or

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N. Title XIV. QuasiOffenses 1. Article 365 - Imprudence and

Negligence

Quasi-offenses punished: a. Committing through reckless imprudence any act which, had it been intentional, would constitute a grave or less grave felony or light felony; b. Committing through simple imprudence or negligence an act which would otherwise constitute a grave or a less serious felony; c. Causing damage to the property of another through reckless imprudence or simple imprudence or negligence; d. Causing through simple imprudence or negligence some wrong which, if done maliciously, would have constituted a light felony. Imprudence Lack of skill; deficiency of action Failure in precaution

Negligence Lack of foresight; deficiency of perception Failure in advertence

Imprudence or negligence is not a crime itself; it is simply a way of committing a crime. It becomes punishable only when it results in a crime. The rules for graduating penalties (under Art. 64) based on mitigating and aggravating circumstances are NOT applicable to offenses punishable thru criminal negligence. QUALIFYING CIRCUMSTANCE: failure to render immediate assistance to the injured party. This qualifying circumstance must be distinguished from the punishable OMISSION under Article 275. If the danger that may result from the criminal negligence is clearly perceivable, the imprudence is reckless. If it could hardly be perceived, the criminal negligence would only be SIMPLE. Criminal negligence is only a modality in incurring criminal liability. This is so because under Article 3, a felony may result from dolo or culpa. THEREFORE, even if there are several results arising from ONLY ONE CARELESSNESS, the accused may only be prosecuted under one count for the criminal negligence. Otherwise, double jeopardy would arise.

CRIMINAL LAW

Elements of Reckless Imprudence: a. The offender does or fails to do an act b. The doing of or the failure to do the act is voluntary c. It is without malice d. Material damage results e. There is inexcusable lack of precaution on the part of the offender, taking into consideration: 1. His employment/occupation 2. Physical condition 3. Degree of intelligence 4. Other circumstances regarding the persons, time and place Note: a. Reckless Imprudence Resulting in Homicide b. Resulting in Physical Injuries Inexcusable lack of precaution Factors to be considered in determining inexcusable lack of precaution: a. Employment or occupation b. Degree of intelligence and physical condition of the offender; and c. Other circumstances regarding persons, time, and place. Force majeure is an event which cannot be foreseen, or which being foreseen is inevitable; it implies an extraordinary circumstance independent of the will of the actor. Once malice is proven, recklessness disappears. [People v. Agliday, supra.] Elements of Simple Imprudence a. There is lack of precaution on the part of the offender b. The damage impending to be caused is not immediate or the danger is not clearly manifest. Test of negligence: Would a prudent man, in the position of the person to whom negligence is attributed, foresee harm as a result of the course actually pursued? If so, it was the duty of the actor to refrain from that course or to take precautions against its mischievous results, and the failure to do so constitutes negligence. The measure of the damage should be the difference in value of property immediately before the incident and immediately after the repair. Art. 64 relative to mitigating and aggravating circumstances is not applicable to crimes committed through negligence.

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The penalties provided in Art. 365 are not applicable in the ff. cases: a. When the penalty provided for the offense is equal to or lower than those provided in the first two paragraphs of Art. 365, in which case the courts shall impose the penalty next lower in degree that that which should be imposed, in the period which they may deem proper to apply. b. When, by imprudence or negligence and with violation of the Automobile Law, the death of a person shall be caused, in which case the defendant shall be punished by prision correccional in its medium and maximum periods. When death or serious bodily injury to any person has resulted, the motor vehicle driver at fault shall be punished under the Penal Code. Contributory negligence is not a defense. It only mitigates criminal liability. Sec. 59 of Act 3992 (Revised Motor Vehicle Law) gives the right of way to the driver coming from the right of another, when both are travelling on intersecting streets of the same class. The grant of right of way does not relieve the motorist from the duty of keeping a lookout for motorists entering the intersection from his left or right. Doctrine of last clear chance The contributory negligence of the party injured will not defeat the action if it be shown that the accused might, by exercise of reasonable care and prudence, have avoided the consequences of the negligence of the injured party. Emergency rule An automobile driver who, by negligence of another and not by his own negligence, is suddenly placed in an emergency and compelled to act instantly to avoid collision or injury is not guilty of negligence if he makes such a choice which a person of ordinary prudence placed in such situation might make even though he did not make the wisest choice. One who suddenly finds himself in a place of danger, and is required to act without time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence, if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence. [Gan v. CA, G.R. No. L-44264 (1988)]

CRIMINAL LAW

Violation of a rule or regulation or law is proof of negligence. But negligence cannot be predicated upon the mere fact of minority or lack of an operator’s license. The penalty next higher in degree is imposed if the offender fails to lend on the spot to the injured parties such help as may be in his hands to give.

Carillo v. People [G.R. No. 86890 (1994)]: The

gravamen of SIMPLE NEGLIGENCE is the failure to exercise the diligence necessitated or called for by the situation which was NOT immediately lifedestructive BUT which culminated, as in the present case, in the death of a human being 3 days later. Medical malpractice, which is a form of negligence, consists in the failure of a physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions, and in like surrounding circumstances. [Garcia-Rueda v. Pascasio, G.R. No. 118141 (1997)]

Res ipsa loquitur – the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiff’s prima facie case, and present a question of fact for the defendant to meet with an explanation. [Ramos v. CA, G.R. No. 124354 (1999)]

Requisites for the application of res ipsa loquitur a. The accident was of a kind which does NOT ordinarily occur UNLESS someone is negligent; b. The instrumentality or agency which caused the injury was under the exclusive control of the person in charge; and c. The injury suffered must NOT have been due to any voluntary action or contribution of the person injured. Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. HOWEVER, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are observable by any one may be given by non-expert witnesses. [Reyes v. Sisters of Mercy Hospital, G.R. No. 130547 (2000)] Illustration:

People v. Carmen [G.R. No. 137268 (2001)]: It would appear that accused-appellants are members of a cult and that the bizarre ritual performed over the

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victim was consented to by the victim's parents. With the permission of the victim's parents, accusedappellant Carmen, together with the other accusedappellants, proceeded to subject the boy to a "treatment" calculated to drive the "bad spirit" from the boy's body. Unfortunately, the strange procedure resulted in the death of the boy. Thus, accusedappellants had no criminal intent to kill the boy.

CRIMINAL LAW

'homicide through reckless imprudence', and the like; when the strict technical sense is, more accurately, 'reckless imprudence resulting in homicide'; or 'simple imprudence causing damages to property'."

Their liability arises from their reckless imprudence because they ought that to know their actions would not bring about the cure. They are, therefore, guilty of reckless imprudence resulting in homicide and not of murder. Art. 365 of the Revised Penal Code, as amended, states that reckless imprudence consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing such act. Compared to intentional felonies, such as homicide or murder, what takes the place of the element of malice or intention to commit a wrong or evil i: the failure of the offender to take precautions due to lack of skill taking into account his employment, or occupation, degree of intelligence, physical condition, and other circumstances regarding persons, time and place. The elements of reckless imprudence are apparent in the acts done by accused-appellants which, because of their lack of medical skill in treating the victim of his alleged ailment, resulted in the latter's death. As already stated, accused-appellants, none of whom is a medical practitioner, belong to a religious group, known as the Missionaries of Our Lady of Fatima, which is engaged in faith healing.

Ivler v. Modesto-San Pedro, supra.: The accused

got involved in a car accident for which he was charged with two separate offenses (RI resulting to slight physical injuries and RI resulting to homicide and damage to property). He was convicted of the first offense and he wanted the second information quashed on the ground of double jeopardy. The Court held that the Reckless Imprudence is a single crime and the consequences on persons and property are material only to determine the penalty. The conviction or acquittal of such quasi-offense bars subsequent prosecution for the same quasi-offense, regardless of its various resulting acts. The law penalizes the negligent act and not its result.

Rafael Reyes Trucking v. People, G.R. No. 129029 (2000): Much of the confusion has arisen from the common use of such descriptive phrase as

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